We can help you evaluate your Whistleblower / False Claims Act case with no cost or obligation. The first step in "blowing the whistle" on potential fraud is asking, "Do I have a case?" The following checklist is a basic list of things to consider when making this determination.
PLEASE READ: This checklist should never be considered as advice from an attorney, nor substituted for attorney advice. The law is complex and changes frequently. The facts and circumstances of your particular case may warrant different or other consideration. You should always seek the advice of an attorney if you believe you may have a legal right or claim, including rights or claims as a whistleblower. Contact us.
Does the fraud involve a government-funded program?
Examples of government-funded programs include, but are not limited to: health care programs (for example, Medicare, Medicaid); national security and defense; mortgage and banking; transportation, and public construction projects; education; and grants sponsored or supported by government funds.
Note: The states of Illinois and California have whistleblower laws addressing fraud committed against private insurers. If the fraud occurred in Illinois and/or California or affects citizens in these states, you may have a claim under these laws and should consult with an attorney.
Do you have personal and non-public information about the fraud?
Whether the whistleblower has personal and "non-public" information about the fraud is a complex legal and factual issue. At the simplest level, it means that you did not discover the fraud by reading about it in the newspaper or other public source, but rather, from your own personal observation or experience, such as your employment.
Do you have any documentation of the fraud or know of others who could corroborate your allegations?
Documentation of the fraud should consist of only those documents you have legal access to and access to in the ordinary course of your employment. Documentation is desirable, but not absolutely required in all cases. Similarly, it is helpful if you know of others such as former employees, who can corroborate your allegations. Again, you should consult with an attorney on this issue before taking any action with respect to documents or witnesses.
Does the fraud involve a substantial amount of money?
While not a prerequisite to a claim, the amount of damages involved will be a factor in assessing whether it makes sense to pursue a claim, and in whether the government will be interested in pursuing your case. Sometimes other factors, such as public safety and the potential for harm to individuals are important factors that offset the "small dollar" aspect of the claim.
Does the fraud negatively impact on public safety or patient care?
While again not a prerequisite to a claim (and the majority of cases do not involve this), patient safety and protection from harm are primary concerns of the government prosecutors who will be reviewing your case. This concern comes in many different forms, for example, it could be potential harm to a patient or to a service man or woman, or to the broader public such as a defective road or bridge.
There are many ways that fraud negatively impacts patient safety and care, including but not limited to: the provision of inadequate or worthless services, unnecessary testing or procedures, and the promotion of prescription drugs for uses that have not received FDA approval and have not been shown to be safe or effective, and nursing home neglect.
Is the fraud intentional or the result of negligence?
Gross negligence, reckless disregard, or deliberate ignorance can sometimes serve as the basis of a claim, but intentional fraud and misconduct make the most compelling cases. Simple negligence is likely insufficient.
Did you initiate or participate in the fraud?
Whistleblowers who file a claim even though they planned and initiated the fraud may be excluded from receiving any share of the government's recovery. You may also find yourself the target of a government investigation.
"Initiation" of the fraud (i.e., planning and devising it) is quite different from "participation" in the fraud. Many potential whistleblowers are expected or required, as a condition or part of their employment to participate in the fraudulent conduct. Sometimes, the potential whistleblower does not even know they are being asked to do something that constitutes fraud, or at least are not aware of this initially.
Does the defendant have sufficient assets and ability to pay?
While fraud is often a profitable business and most defendants do have sufficient assets, if the fraud is small in scale or the defendant is in poor financial condition, it may not be worthwhile to pursue a claim as a whistleblower.
Do you have any reason to believe there is already a government investigation underway?
A government investigation may signal that another whistleblower has already reported the allegations to the government or that the allegations are in the public domain. While none of these would necessarily bar your claim, it is important to consider this factor.
Are you coming forward for the right reasons?
Most whistleblowers do come forward for the right reasons, which include an interest in wanting to see an unethical situation corrected, a desire to set the record straight, concern that they have knowledge of the fraud and could face exposure, and generally, the desire to do the right thing. There are many risks in being a whistleblower, and if one reason for coming forward is the potential financial reward, that is understandable as well.
Many whistleblowers come forward to report fraud after they have been fired or otherwise received some adverse employment action. This is not a wrong reason to come forward as long as the information is legitimate, and you are not simply trying to get back at your former employer.
If, after reviewing these factors, you believe you may have a case, Contact us.
