Guttman, Buschner & Brooks

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Another Reminder of Why Corporations Cannot Police Themselves

This article, written by Reuben Guttman and Traci Buschner who practice law with Guttman, Buschner & Brooks PLLC in Washington DC. Published in the McClatchy-Tribune News Service on August 13, 2014.

What kind of people would knowingly expose someone to the risk of infection just to make a buck?

Read carefully the allegations underlying the recent $97 million settlement between the U.S. Department of Justice and Community Health Systems and that question may be answered.

Responding to lawsuits brought under the False Claims Act by multiple whistleblowers, the government investigated and came to terms with the Nashville-based hospital giant resolving allegations that patients were admitted from emergency rooms to overnight stays not for medical necessity but for the purpose of racking up Medicare and Medicaid revenue and bilking private payers.

No harm, no foul. Right? Just skimming a few dollars off the government with no potential harm to patients? Right? Wrong on both counts!

While hospitals are places to get well, staying in a hospital is – these days – a place to acquire a hospital infection. According to allegations brought by three of the whistleblowers, including a physician at a CHS-owned Philadelphia hospital, overnight admission to a hospital absent medical necessity is not prudent medical practice. And, the rationale behind that conclusion is not just about saving dollars. It is a question of health and safety.

So, according to the allegations spanning multiple whistleblower law suits – as the publicly traded CHS was gobbling up community hospitals across the country, it was supporting its buying fling by admitting patients who allegedly did not need hospitalization.

And so the story goes; once again whistleblower lawsuits brought under the False Claims Act – a law allowing private citizens with knowledge of wrongdoing to bring suit in behalf of the government – was being used to recover taxpayer dollars and expose conduct placing citizens at risk. Technically these suits are about the submission of false claims for government payment or approval. In reality they are about much more.

In recent years, whistleblower litigation under the False Claims Act has uncovered conduct by giant pharmaceutical manufacturers including Abbott, GlaxoSmithKline, Amgen and Pfizer that has resulted in criminal convictions and billions of dollars in recovery for hard-pressed government payers. In each case the Government paid hundreds of millions of dollars in reimbursement for prescriptions that were the resulted of marketing tactics that violated the law. Patients were given medicine for reasons not solely grounded in medical necessity or rationale.

To be clear where companies including Abbott and Glaxo pleaded guilty to marketing schemes that placed patients at risk, they did so knowingly and in each case told the court they were pleading guilty because they were indeed guilty.

The tragedy is that the CHS settlement – a civil settlement – is yet another reminder that people captured by a corporate culture have willingly placed countless unwitting citizens at health risk all for the purpose of making additional profit. That is indeed the tragedy. The travesty is that even after the health care providers we once trusted have plead guilty to conduct that places people at risk, the U.S. Chamber of Commerce – or at least a few lawyers speaking on its behalf – still claim that these purportedly outstanding companies need to be cut some slack. Testifying before the U.S. House of Representatives’ Judiciary Committee Subcommittee on the Constitution and Civil Justice on July 30, lawyers for the Chamber attacked the False Claims Act, arguing that corporations should police themselves with whistleblowers being required to first report their concerns to corporate internal compliance personnel before alerting government officials.

Of course, these mouthpieces for the Chamber neglected to mention that every pharmacy giant that has pleaded guilty over the last five years had internal compliance programs that did not work so well. Actually, come to think of it, CHS also had an internal compliance program.

So what kind of people would knowingly expose someone to the risk of infection just to make a buck? One quick answer is definitely not the kind of people we want policing themselves for good behavior.

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Reuben Guttman on “Internal Compliance”

With the growth of multinationals whose business transcends geographic boundaries and whose revenue streams exceed the gross national product of some nations, legislators and regulators—at least in the United States—have looked to leverage the resources of whistleblowers to bolster compliance enforcement. Under the right circumstances whistleblowers can be an invaluable resource.

First, whistleblowers can surface information not readily available, or otherwise concealed from regulators. Second, in places like India and China they add eyes and ears with cultural and language sensitivity and skills that the enforcement agency itself may not have available, at least in these particular locales. Third, they can have technical or scientific skills in areas that will assist the enforcement agency. Fourth, they often come equipped with counsel who can spend the time translating lay complaints into cogent legal arguments.

Read the entire article at Harvard University, Edmond J. Safra Center for Ethics.

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Blocking the FDA

Forks, orthodontic braces, hip-joint replacements-all made with radioactive metals. That’s what could have happened in the late 1990s as a result of the Department of Energy’s agreement with BNFL Inc. to recycle as much as I 10,000 tons of contaminated metal taken from the Oak Ridge, Tenn., nuclear weapons facility.

This did not sit well with Guttman, a Washington, D.C.based attorney who filed suit against Secretary of Energy Bill Richardson to block the recycling and distribution of these metals.

“I learned about the National Environmental Policy Act in Professor Arthur’s course on environmental law and knew that this was a federal action, which could have potential impact on health or the environment,” he says.

“This would mandate an environmental impact statement.” In pursuing the case, Guttman searched through copious documents for an environmental impact statement or a decision against assembling one. Neither could be found.

“I filed suit in the U.S. District Court for the District of Columbia against the secretary of energy,” he says. “When I sought discovery in the case, the Department of Justice, representing the Department of Energy, argued that this was an action under the Administrative Procedures Act and therefore, while I was entitled to a record, I was not entitled to discovery.”

Guttman argued successfully that because the government had failed to develop a record, he was entitled to the discovery necessary to develop one. He took depositions, including one from the assistant secretary of energy, and secured documents.

“The judge ultimately found that the entire project was troublesome. A public interest group took out a quarterpage ad in The New York Times quoting the judge,” Guttman says. “There was even a ‘Boondocks’ comic on
the subject of the case.”

The secretary of energy canceled the project. Now director at Grant & Eisenhofer in D.C., Guttman heads the firm’s whistle-blower practice. He has served as counsel in some of the largest recoveries under the Federal False Claims Act, including U.S. ex rel. Johnson v. Shell Oil Co., 33 F. Supp. 2d 528 (ED Tex. 1999), which recovered more than $300 million from the oil industry. He also represented one of the six main whistle-blowers who said Pfizer Inc. tried to entice doctors to promote and prescribe drugs for unapproved uses. Pfizer settled in 2009 for $2.3 billion.

Even before filing a case, Guttman’s team engages in intense investigation, retains experts and prepares as if a trial is imminent.

“We look at the case from all sides. We look at good facts and bad facts. We assume the court will see the entirety of the case,” Guttman says in an article, “Frontloading the Case: Theme & Theory in False Claims and Fraud Litigation.” “We develop theories for the case and a theme, which allows the decider of fact to ‘get it.”

Guttman also uses social media and other web-based resources to enhance his work. To that end, he founded whistleblowerlaws.com, which provides information about “qui tam” lawsuits that allow whistleblowers to seek damages on behalf of the government. He has a Listserv of more than 200 lawyers who share information about whistle-blower and civil rights cases. He also biogs for The Global Legal Post and uses Twitter and YouTube. Though his practice focuses on the most complicated of cases, Guttman can boil it all down to the simple idea that first piqued his interest in the field: Complex litigation can help people.

“The ability to try a case in court levels the playing field for those without power or resources to vindicate their rights,” he says.

Source: Emory Lawyer | Spring 2013

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YEAR OF THE WHISTLEBLOWER?

Whistleblowers and the people and organisations that support them have been making waves  and making news for decades. Finally, they’re making laws.

Over the past two years, many countries throughout the world have passed new or strengthened existing laws to protect whistleblowers from retaliation, and to help ensure that their efforts to disclosure corruption, fraud and other crimes result in needed reforms.

From Luxembourg to Vietnam, from South Korea to the US, and from Peru to Jamaica, countries in all regions of the world are granting new and expanded legal protections to people who expose a wide range of crimes. In many more countries – Australia, Canada, Colombia, Guatemala, India, Ireland, Lebanon, Nigeria, Pakistan and Taiwan, to name just a few – new or improved whistleblower protection laws are actively under consideration or being proposed.

The latest major breakthrough came in November, when US President Barack Obama signed into law the Whistleblower Protection Enhancement Act, which will provide new legal shields for federal employees – including protection for government scientists who challenge censorship, and for employees who challenge the consequences of the government’s policy decisions.

Thirteen years in the making, this victory was pushed over the top thanks to an extraordinary grassroots campaign by the Government Accountability Project, the Project on Government Oversight and the public radio programme “On the Media”.

And, last month, the European Commission – acknowledging input from TI and our friends at Public Concern at Work – passed new whistleblower guidelines for EU staff members, including a critical provision that requires managers to prove that any actions taken against employees were not motivated by whistleblowing.

Why are whistleblower protection laws important? Without them, citizens can be fired, suspended, harassed or otherwise retaliated against for exposing wrongdoing. In extreme cases, they and their family members are threatened, beaten or even killed – as in the case of an Indian whistleblower named Lingaraju, who was hacked to death in front of his wife while they were fetching water near their home on November 20.

Why are whistleblowers important? Worldwide, they have saved millions of lives, helped to recover billions of dollars in stolen and lost funds, saved precious environmental resources, and exposed all manner of cases of corruption, tax evasion, financial crimes and human rights violations gone undetected or ignored by official authorities.

According to a 2012 survey by Ernst & Young, 40 percent of respondents worldwide identified whistleblowing as a highly effective tool for detecting wrongdoing. According to KPMG India, nearly 30 percent of all fraud detected in the country has surfaced due to the anonymous whistleblower.

The oldest whistleblower law in the world – the US False Claims Act ­– has been credited with securing tens of billions of dollars in fines and stolen funds. An all-time record $4.9 billion in settlements and judgments was secured by the US Justice Department in 2012 under a whistleblower law that allows citizens to expose corruption and bring it to the attention of federal investigators. The figure topped the previous record by more than $1.7 billion, and brings total recoveries under the False Claims Act since 2009 to $13.3 billion – the largest four-year total in history, and more than a third of total recoveries since the law was amended in 1986.

These huge successes led Reuben Guttman, one of the top whistleblower attorneys in the US, to proclaim, “2012 can be looked upon as the year of the whistleblower.”

The international whistleblower movement is now at the point of no return. Activists around the world are demanding legal rights and protections for whistleblowers – and they’re winning in record numbers. As these protections expand, whistleblowers will have greater assurances that if they come forward and report wrongdoing, they will not suffer the consequence of committing the truth.

Source: https://blog.transparency.org/2013/01/15/whistleblower-laws-hitting-the-books-and-whistleblowers-winning-cases-in-record-numbers/