Materiality, Causation, and Damages, Oh My! Where Are False Claims Act/Anti-Kickback Statute Cases Headed?
The False Claims Act and Anti-Kickback Statute have been key enforcement tools for the government and relators’ bar for the past decade, with health care fraud recoveries surpassing $2 billion annually since 2010. With the passage of time, allegations in these cases have become increasingly complex and nuanced, moving from straightforward off-label promotion concerns to elaborate inducement schemes involving, for example, donations to copay assistance charities; provision of services to physicians and patients; and speaking/consulting fees paid to health care providers. Other important dynamics contributing to the changing landscape include court rulings following Escobar, the mining of publicly available data, and the persistence of relators in pursuing these cases even after government declination. This panel will elaborate on these trends and discuss economic considerations for the assessment of materiality, causation, and damages during the investigative, motion-to-dismiss, and expert phases of these matters.