Eighth Circuit: In False Claims Act Cases Based On Kickback Violations, the Kickback Violation Must Be the “But For” Cause of the Items and Services Subject to the Claim

Sheppard Mullin Richter & Hampton LLP
Contact

Sheppard Mullin Richter & Hampton LLP

The Eighth Circuit Court of Appeals recently tossed a $5.5 million jury verdict finding that a physician violated the False Claims Act (“FCA”) by submitting claims for items and services ordered subsequent to a violation of the Federal health care program anti-kickback statute (“AKS”). According to the appellate court, the trial court’s jury instruction “brushed aside causation” and “misinterpreted” a 2010 amendment to the AKS.

As part of the Affordable Care Act, Congress in 2010 amended the AKS to expressly provide that a claim “resulting from” an AKS violation constitutes a false or fraudulent claim for purposes of the FCA. See 42 U.S.C. 1320a-7b(g). However, Congress did not define the phrase “resulting from,” leading courts to form divergent opinions as to whether a causal link between the kickback violation and the false claim is necessary and, if so, as to the nature of that causal link. 

The Eight Circuit concluded that, when a plaintiff seeks to establish the falsity of a claim “resulting from” a violation of the AKS, the plaintiff must prove that a defendant “would not have included particular ‘items or services’ [in the claim] but for the illegal kickbacks” (emphasis added). United States v. Midwest Neurosurgeons, LLC, et. al, No. 20-2445, 14 (8th Cir. 2022). The Court said that its ruling is narrow and does not imply that every case arising under the FCA requires a showing of but-for causation, only FCA cases wherein the claim is allegedly ‘false’ because it ‘results from’ an AKS violation. See id.

The Court concluded that “… given the government’s sole theory at trial hinged on the 2010 amendment [to the AKS], the district court never instructed the jury on but-for causation, and there is no telling what the jury would have done if it had.” Id.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Sheppard Mullin Richter & Hampton LLP | Attorney Advertising

Written by:

Sheppard Mullin Richter & Hampton LLP
Contact
more
less

Sheppard Mullin Richter & Hampton LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide