The Eighth Circuit Court docket of Appeals lately tossed a $5.5 million jury verdict discovering {that a} doctor violated the False Claims Act (“FCA”) by submitting claims for objects and providers ordered subsequent to a violation of the Federal well being care program anti-kickback statute (“AKS”). In accordance with the appellate courtroom, the trial courtroom’s jury instruction “brushed apart causation” and “misinterpreted” a 2010 modification to the AKS.
As a part of the Inexpensive Care Act, Congress in 2010 amended the AKS to expressly present {that a} declare “ensuing from” an AKS violation constitutes a false or fraudulent declare for functions of the FCA. See 42 U.S.C. 1320a-7b(g). Nevertheless, Congress didn’t outline the phrase “ensuing from,” main courts to type divergent opinions as as to whether a causal hyperlink between the kickback violation and the false declare is important and, if that’s the case, as to the character of that causal hyperlink.
The Eight Circuit concluded that, when a plaintiff seeks to determine the falsity of a declare “ensuing from” a violation of the AKS, the plaintiff should show {that a} defendant “wouldn’t have included explicit ‘objects or providers’ [in the claim] however for the unlawful kickbacks” (emphasis added). United States v. Midwest Neurosurgeons, LLC, et. al, No. 20-2445, 14 (eighth Cir. 2022). The Court docket stated that its ruling is slim and doesn’t suggest that each case arising beneath the FCA requires a displaying of but-for causation, solely FCA circumstances whereby the declare is allegedly ‘false’ as a result of it ‘outcomes from’ an AKS violation. See id.
The Court docket concluded that “… given the federal government’s sole principle at trial hinged on the 2010 modification [to the AKS], the district courtroom by no means instructed the jury on but-for causation, and there’s no telling what the jury would have executed if it had.” Id.
