Q: Hospice fraud in medical malpractice case vs in CFCA case

A: There are a few important considerations when it comes to the implications of a medical malpractice case involving hospice fraud for a potential California False Claims Act (CFCA) case:

1. Rephrasing "improper referrals" allegation: In the context of a CFCA case, improper referrals could potentially be framed as violations of the Anti-Kickback Statute or the Stark Law (physician self-referral law). These federal laws prohibit offering, paying, soliciting, or receiving remuneration to induce referrals of items or services covered by Medicare, Medicaid and other federally funded programs. If the improper referrals involved kickbacks or self-referrals tied to false claims submitted to a government healthcare program, this could form the basis of a CFCA case.

2. Punitive damages: Punitive damages are not available under the CFCA. The CFCA allows for the recovery of civil penalties and treble damages (3 times the amount of the false claims), but these are not considered punitive in nature. They are intended to make the government whole and deter future fraud. So while a claim for punitive damages may be appropriate in a medical malpractice case, it would not directly translate to a CFCA case. The focus in a CFCA case would be on the civil penalties and treble damages.

3. Reporting requirements: To bring a CFCA case, the fraud generally needs to be reported to the government first. Failing to report the hospice fraud to Medicare or the Office of Inspector General (OIG) could potentially impact the ability to bring a successful CFCA case later. There are specific procedures for filing a CFCA whistleblower (qui tam) complaint under seal and serving a disclosure statement on the government. Not following these procedures properly could be problematic.

4. Statute of limitations: The statute of limitations for a CFCA case is generally 6 years from the date of the violation or 3 years from when facts material to the case were or should have been known to the state official charged with responsibility to act, but in no event more than 10 years after the violation. The statute of limitations for medical malpractice may be different. So it's important to be mindful of timing to ensure a CFCA case is filed timely.

5. Scope of allegations: A CFCA case needs to be focused on false claims submitted to government healthcare programs. The medical malpractice case may be focused more broadly on standard of care issues and not specifically on false claims. To bring a successful CFCA case, there would likely need to be additional investigation and evidence-gathering focused specifically on the submission of false claims tied to the improper hospice referrals.

In sum, while there may be some overlap in the improper hospice referral allegations between a medical malpractice case and a CFCA case, there are important differences in the specific legal theories, damages, procedures and timing that would need to be carefully considered in framing a CFCA case. Consultation with an experienced CFCA attorney is advisable to assess the viability and proper framing of any potential CFCA case.