Almost exactly a year ago we did our Halloween post, “Qui Tam Off-label Trick or Treat,” on a creepy qui tam case brought by one doctor against another for prescribing a drug off label. The case was called United States ex rel. v. King-Vassel et al., 2012 U.S. Dist. LEXIS 152496 (E.D. Wisc. Oct. 23, 2012). The relator was named Dr. Watson and he put his case together in a manner that was by no means elementary. He procured medical records for the patient via a release stating that the information was “for the purpose of providing psychological services and for no other purpose whatsoever.” That was not quite true. (One of the commenters on our original post tried to excuse this little bit of prevarication by saying that the doctor was merely fulfilling the Hippocratic oath to avoid further harm, but another commenter rejoined that such reasoning might also excuse arson or sabotage under the ‘right’ circumstances.) The court imposed sanctions for this deceptive maneuver, but what was more important to us was whether the court would erect a stop sign, or at least a speed bump, against the chronic overuse of the False Claims Act to reap financial windfalls from appropriate off label prescriptions involving federal payors. We thought that the case should have been thrown out on the general principle that off label prescriptions are not false claims. We were disappointed when the court went off on the narrower ground that the relator had not come forward with adequate proof that the defendant doctor “knowingly caused” a false claim. More specifically, the court concluded that the relator needed an expert witness to explain how Medicare reimbursement worked and to testify that the use of the medicine was off-label or not recognized in the drug compendia.
As we said at the time, that rationale seems unnecessarily crabbed and easily circumvented. We were reminded of how in horror movies there is almost always a hint that the ghouls might return, and we feared that, “[a]s with Freddie or Jason, we might not have seen the last of this nasty apparition.”
We were right. To begin with, we were right about how all horror movie villains, not just Dracula, are permanently undead. Maybe it’s nothing but a profit grab, but a successfully scary antagonist inevitably plays an encore. There are at least 60 Frankenstein movies, counting the classic Universal series, the almost as classical Hammer series, and a lot of pretentious or insane outings, to say nothing of Frankenweenie, The Rocky Horror Picture Show, and versions from Japan, Spain, and Mel Brooks. There at least 30 Godzilla movies, with another due to come out soon (with Bryan Cranston!). There have been twelve Friday the 13th movies (the fourth was called “The Final Chapter” and the ninth was called “The Final Friday” – so much for the meaning of “Final”). How can there not be a thirteenth? Monsters are built to return. And for those of you who favor eek-fests of a more subtle nature, this Halloween night will see the premier on the Sundance channel of a show from France called The Returned. It is set in a small mountain town where scads of dead people reappear, apparently alive and normal, trying to resume their life as if nothing significant (such as their demise) had happened. Savoir faire and ennui reign. A child killed in an accident comes home. A young man who committed suicide a decade before tracks down his former fiancée. Also returning is a young nurse, who had been attacked by a cannibalistic serial killer. And, of course, the serial killer is also back. Maybe nothing says horror like a do-over.
None of this is as frightening as what recently occurred in the King-Vassel case. In United States v. King-Vassel, 728 F.3d 708 (7th Cir. 2013), the Seventh Circuit brought this misbegotten case back to life. The problem, as we predicted, was that the district court had focused on the need for expert testimony. The Seventh Circuit held that no expert testimony was required because the relator had marshalled enough facts to suggest that the prescribing doctor had reason to know she was causing the submission of a false claim or that she failed to make a reasonable and prudent inquiry into that possibility. What were those facts? The patient’s mother had provided the doctor with the patient’s Medicaid information, the mother had never paid out of pocket for the doctor appointments, the doctor had never “suggested that she had not billed Medicaid for her services,” that a medical assistance card was used to pay for the medications, and there was some paperwork “that seemed to indicate” that the doctor had been compensated by the Medicaid program for her prescriptions. The court also did not “think a jury needs expert testimony to understand that writing a prescription to a person insured by Medicare will likely cause a claim to be filed with Medicaid” or that “an expert was necessarily required to explain the compendia.” King-Vassel, 728 F.3d at 713.
Trick or treat? Certainly not a treat. After we finished reading all those ‘facts,’ we adopted the pose from Munch’s “The Scream.” Or Roy Scheider when he calls for a bigger boat. Or Jamie Lee Curtis getting a glimpse of a guy in a hockey mask. Or Bexis when he peruses the latest decision out of Missouri. Nowhere in the King-Vassel court’s litany is there anything approximating a genuine falsehood. The abuse of the False Claims Act continues apace. Zombie reasoning keeps trudging along.
The appellate court does feel “compelled to note that nothing in this opinion should be read to countenance the pre-suit actions of either Watson or his trial counsel: they dragged blameless parties into court unnecessarily and sought a medical release by representing that Watson was going to treat N.B. – ‘a total falsity.’ Despite ruling in Watson’s favor today, we hope that the district court’s sanctions will dissuade professionals from stooping to such unsavory tactics in the future.” Id. at 717-18. Talk about whistling past the graveyard. Sanctions/shmanctions. By letting this Franken-qui tam case live, the Seventh Circuit is practicing bad medicine and worse law. What about the fact that, as we have explained before, off label use is not only legal, it can be the standard of care?
By the way, that lawyer who represented the relator has made an appearance on this blog before. As we discussed here, he was the attorney in the Zyprexa litigation when there was an issue regarding violation of a court confidentiality order. Insert your own horror movie sequel joke here.