False Claims Act Is A Piece Of Term Paper

Length: 9 pages Subject: Healthcare Type: Term Paper Paper: #4710117 Related Topics: Unfair Labor Practices, Medicare Fraud, Negligence, Independent Contractors
Excerpt from Term Paper :

False Claims Act is a piece of legislation from the U.S. Congress that allows any individual with knowledge of a fraud being perfected against any agency of the U.S. Government to file a claim on behalf of the Government against the individual or business that has or is committing such fraud. The individual filing such claim on behalf of the U.S. Government is identified as the qui tam plaintiff and, if the action is successful, such person is entitled to share in a percentage of the recovery against the fraudulent person or business.

The responsibilities of the qui tam plaintiff do not end with the filing of the lawsuit. Such individual must not only notify the Justice Department of the filing but must agree to cooperate fully with the Justice Department in the litigation. The Justice Department has the option of stepping into the shoes of the qui tam plaintiff and prosecute the action on its own or allowing the qui tam plaintiff to pursue the action on his or her own.

Like similar whistle blower type statutes, the defendant in these types of actions is liable for damages up to three times the actual damages suffered as a result of any fraud. The rationale for this type of damage award structure is to serve not only as compensation for the fraud but also to serve as a punishment to the defendant and as a warning to others. The qui tam plaintiff in such actions can expect to share in the damage award. The amount of such sharing is dependent on the status of the plaintiff in prosecuting the action. In the event that the Justice Department took over the prosecution of the action, the plaintiff can expect to receive between 15% and 25% of the recovery. In cases where the qui tam plaintiff prosecuted the case the plaintiff can expect to receive between 25% to 30% of the total recovery.

2. Medical Staff privileges

The granting of medical staff privileges is the method used by hospitals and other health care institutions to guarantee the professional competence of the medical staff using its facilities. Before any medical doctor can utilize the services of a facility said doctor must apply for and be granted the privilege of using such facility in administering to his or her patients. The institution is responsible for determining, once the doctor has made application for such privileges, whether or not the applicant possesses the judgment, training, and skill necessary to perform services under the auspices of the institution. Each institution has established its own credential standards and its own investigatory process.

The importance of this procedure cannot be overstated. Once a health care facility grants a physician medical privileges and allow the physician to practice out of its facility it is representing to the consumer that the physician is qualified to do so. The professional reputation of the facility is largely determined by the quality of the physicians using it so it is imperative that facilities carefully screen each physician.

Ordinarily the granting of medical privileges is a straightforward process and there is little dispute relative to a particular physician's credentials. In today's medical culture, there are numerous credentialing organizations and verifying a physician's competence is easily done, however, on occasion, disputes do arise and litigation regarding the granting of privileges may arise. Such actions are litigated in the state courts where the medical institution which is the subject of the granting of privileges is located. This is a measure of last resort for both the physician and the institution as, regardless of the outcome; it is a bad way to begin a professional relationship.

3. Vicarious Liability

The legal concept of vicarious liability was established at common law to allow the negligence of one person or entity to be transferred to another person or entity. The normal circumstances under which this concept applies is where the actual negligent person is under the direction or control of another person. This direction and control, under the law, is considered sufficient enough to allow the negligence to be transferred to the third party. The traditional relationships where vicarious liability is applied are parent/child and employee/employer. In both situations, the negligence of the child and the negligence of the employee are transferred to either the parent or the employer. In the case of employee/employer, the negligence of the employee must have occurred during the scope of the employee's


As to how vicarious liability is applied in the parent/child situation, each case of negligence must be examined on a case by case basis. There is no universally established standard as to whether vicarious liability will apply.

In the employer/employee situation, it is often difficult to determine the precise relationship between the parties. The business world has devised a number of unique ways of defining relationship such as independent contractor, temporary hire, or borrowed servant and, as a result, it is often difficult to determine whether a negligent party is an actual employee. Although each jurisdiction has its own case law on this point, most of the cases define the employment relationship in terms of the degree of control that the potentially identified employer has over the activities of the negligent party. As one of the reasons for the application of the vicarious liability concept is to allow injured parties to seek recovery from the deepest pocket, that is, the most financially viable party, establishing an employer/employee relationship can be important.

4. National Practitioner Data Bank

The National Practitioner data bank was established by the U.S. Congress in response to concerns over the overall quality of the medical practitioners throughout the country. The purpose behind the organization of this data bank was to provide hospitals, state licensure boards, professional societies, and other health care entities with a centralized method of determining the credentials of practicing physicians. The data bank contains a wide range of information regarding the activities of practicing physicians throughout the United States. This information includes records of all malpractice actions filed against individual physicians and the amount of any payments made in connection with such actions; any adverse disciplinary actions taken against a physician; record of any loss or suspension of clinical privileges; and a list of all individual professional memberships of enjoyed by the listed physicians.

The statute establishing the data bank requires that all practicing physicians and licensed medical institutions throughout the country report all adverse information to the data bank. The data bank makes its information available to a specified list of institutions and groups who have an interest in insuring that the only qualified and competent physicians are practicing. The information contained in the data bank is considered highly confidential and the data bank is protective of the information contained therein. Individual physicians and health care institutions have the right to verify the accuracy of the information contained in the data bank and are offered the opportunity to contest any inaccuracies.

The activities of the data bank are not without controversy. The American Medical Association has argued that the information contained in the data bank can be misleading and that records of malpractice settlements and verdicts and prior professional disciplinary actions are not in and of themselves an accurate barometer of a particular physician's competence. Despite these objections, the data bank remains operational.

5. Peer Review privilege

Peer review privilege is the process by which doctors, hospitals, and other health care providers are able to review the performance of other doctors and health care providers. The theory behind the establishment of such process was to allow such review to occur under the protection of confidentiality in an attempt to encourage candor and critical thinking in an effort to promote better overall care for the patient. It was felt that extending protection to this process similar to that enjoyed under the doctor/patient privilege would encourage participants to be more open about their thoughts and concerns regarding the nature, quality, and necessity of the care provided to a specific patient.

Peer review statutes are specific to each individual state and the protections of each statute differ from state to state. The movement toward peer review was met with initial enthusiasm but problems have developed with the process over time and these problems have resulted in the states beginning to enact legislation that provides greater confidentiality to the findings and discussions leading up to any findings by the peer review panel.

Although every state's peer review statute is unique there are common elements found in all such statutes:1) each statute defines what constitutes a peer review committee; 2) grants limited immunity for all participants from suit arising from their participation on the review committee; 3) establishes a privilege or makes all records, documents, and communications made during the peer review proceedings confidential to all third parties. It is important to note, however, the privilege or confidential nature of the peer review proceedings is not automatic and it is the responsibility of the person asserting such privilege…

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