Health Care Whistleblowers Report Retaliation, Divorce and Financial Strain, According to NEJM
When a federal False Claims Act/qui tam case is successful, the media coverage naturally focuses on the amount returned to the government – and, much of the time, the relator’s share or “bounty payment” received by the whistleblowers. For example, last year’s Pfizer relators made headlines when it was announced that the group of six relators would share in a $106 million reward as their part of the federal recovery.
However, not all such qui tam cases result in the proverbial happy ending – and, even if they do, the cases often take a significant toll on the relators who choose to come forward. A recent article in the New England Journal of Medicine (NEJM) discusses in detail the challenges faced by whistleblowers, which include being blacklisted in their industry, personal and/or financial difficulties, and health problems caused by the strain of litigation.
The article, entitled “Whistleblowers’ Experiences in Fraud Litigation Against Pharmaceutical Companies,” summarized the NEJM’s findings after interviews with 26 whistleblowers involved in 17 federal qui tam cases against pharmaceutical manufacturers settled between January 2001 and March 2009. Although all the relators interviewed ended up filing qui tam suits, only six specifically intended to do so. The others “fell into” filing qui tams after seeking out attorneys for other reasons, such as unfair employment practices or harassment, or after being encouraged to file suit by family or friends.
The federal False Claims Act dates back to the Civil War, when President Abraham Lincoln enacted the law to deter individuals from supplying rotten food or sawdust-filled gunpowder to the Union Army. Since resources were strained by the war and the government could not police fraud itself, it relied on private individuals to bring fraud to its attention. However, realizing that private individuals would need some incentive to do so, a relator’s share provision was incorporated into the statute.
After the jump -- Why Blowing the Whistle is No Easy Task
False Claims Act statutes also provide for treble (i.e. triple) damages and civil penalties as a way to compensate the government for the time and resources spent investigating a case. However, although statutes allow for triple damages and for a court to award civil penalties of $5,500 to $11,000 per violation, such relief is not always granted (especially in cases that settle out of court). Additionally, due to the lengthy investigative period afforded to the government, it is not unusual for five to ten years to pass between the time a case is filed and resolved.
Despite the relator’s share awards available, the NEJM reported that every single relator interviewed stated that the financial bounty offered under the federal statute had not motivated them to file a qui tam case. Instead, relators came forward out of concerns for patient safety, a desire to see companies held accountable for their unlawful practices; moral or ethical considerations; or to avoid being held accountable for the fraud themselves.
Although all the relators interviewed received a share of the financial recovery, many disclosed that the reward was not without personal sacrifice. The majority of the relators reported retaliation, medical and/or financial problems, or family problems that arose from their decisions to “blow the whistle.” Eight of the relators stated that the consequences of losing their jobs and being rendered “unhirable” were financially devastating. As one relator explained, “I just wasn’t able to get a job. It went longer and longer. Then I lost my house… financially I went under. Then once you’re financially under? Then no help. Then it gets really difficult. I lost my 401k. I lost everything. Absolutely everything.” Additionally, six of the relators said that the litigation had resulted in divorce, several marital strain, or other family conflicts.
Based on my own personal experiences working with dozens of relators, the majority of them seek out attorneys only after making repeated complaints to their supervisors, which are rebuffed or ignored. Some have even made complaints to government agencies and received no response. These relators perceive filing a qui tam suit as their last chance to be heard and stop fraudulent conduct.
As the article and countless other relators will confirm, choosing to be a whistleblower is certainly not an easy road or one that has a guaranteed outcome. But if our nation is truly committed to reducing the costs of health care and making affordable, efficient health care accessible to all, curbing fraud and abuse must be one of the first steps we take.
