Omniscience, End of Life Care, and the False Claim Act

That health care providers might disagree is not a novel concept. As the stakes increase, the potential for disagreement increases. Consider the many different treatment regimens for an illness, and the nature of medicine as an art comes sharply into focus.  The treatment for a sore throat, for example, may be as simple as salt water gargles and acetaminophen, or involve various antibiotics, depending on the particular patient or physician. Consider our nationwide epidemic of obesity; the number of appropriate surgical options for treatment alone is significant. Add in the numerous non-surgical treatment regimens and the number dramatically increases.

In medicine, we do not find this odd, as we have long recognized the practice of medicine as an amalgam of art and science, the interaction of the subjective to the objective. Treatment plans for patients are often highly individualized; individualized to the patient, the doctor, the health plan and so forth.  Within an accepted framework, variation is significant, expected, and accepted.

Despite this, there is an intense interest in making medicine more scientific and objective. While no one would argue the merits of exactness and predictability, the end of variation in clinical judgment remains a challenge to patients, providers, and the courts.

Perhaps nowhere is this more intense than in several recent false claim act cases. Fortunately, courts have recognized that variation in the practice of medicine is not proof of some underlying nefarious intent. In its early 2016 decision in US v. AseraCARE INC., the Northern District of Alabama rejected conflicting opinions of physicians as adequate to support an assertion of falsity. Experts can and do tend to have differing opinions, and the difference alone is insufficient to sustain a claim of fraud. The court required objective, not subjective, proof of falsehood in this context.

US v. Vista Hospice Care, Inc., decided in the Northern District of Texas in June 2016, represents yet another rejection of differences in clinical judgment as adequate to support a false claim.  Here the relator was dealt two significant blows. First, the relator in Vista Hospice relied on non-randomized statistical analysis and extrapolation, which the court deemed inadequate to sustain relator’s claims of fraud.  Second, the court acknowledged that the mere disagreement by relator’s expert with a certifying physician’s assessment was inadequate to sustain the claim.

From Chief Judge Barbara M. G. Lynn’s opinion in Vista Hospice:

… [A]n FCA claim about the exercise of that judgment must be predicated on the presence of an objectively verifiable fact at odds with the exercise of that judgment, not a matter of questioning subjective clinical analysis.

These two important decisions, which no doubt will be challenged repeatedly by the plaintiff’s bar, demonstrate the skepticism courts have for claims based on mere differences of opinion devoid of collateral, supporting objective evidence of misdeeds.