Tuteur, King Comment on Implications of Recent Appeals Court Decision Regarding Physician Judgment

Partner Mike Tuteur and Associate Olivia King were quoted in a Healthcare Risk Management article, “Physician Judgment Case Might Mean More Risk from FCA,” about a recent federal appeals court decision regarding the medical necessity of hospice care that could put clinicians and hospitals at greater risk of False Claim Act allegations.

King said the issue of objective falsity is at the heart of the case. “There’s a theory in the False Claims Act, and it’s not written in the False Claims Act itself, that in order for a claim to be false, it must be objectively false,” she said. “That means that there are objective, verifiable claims to prove falsity. What’s happening here is that there are cases brought claiming that a physician’s judgment is false for the purpose of the False Claims Act. There is a circuit split on this question of objective falsity, which is what makes it particularly interesting.”

Treatment settings such as hospice and rehabilitation are particularly vulnerable to this kind of claim, Tuteur said. “You have to be able to qualify for hospice, with a finding by a physician that certain clinical requirements are met, including the likelihood of death within six months,” he said. “Another clinician can come along, look at the records, and say there was no way this person could have thought that this person was going to be terminal. Sometimes, just going into hospice makes people live longer because it’s calmer and they’ve decided to accept their condition.”