False Claims Act Anti-Retaliation Provision Protects Whistleblowers from Non-Employers

A federal court in a Florida qui tam lawsuit recently ruled that a plaintiff may bring a False Claims Act anti-retaliation lawsuit against defendants other than his employer. (United States ex rel. Koch v. Gulf Region Radiation Oncology, 3:12cv504/RV-CJK (N.D. Fla. Jan. 30, 2013)).

In 2008, West Florida Medical Center Clinic hired Richard Koch as an administrator/manager. After a series of mergers involving West Florida Medical Center Clinic and Sacred Heart Health System, Mr. Koch eventually became an employee of Gulf Region Radiation Oncology. A couple of years later, in January 2010, Gulf Region fired Mr. Koch, allegedly after he raised concerns that they were defrauding government health care programs.

Mr. Koch subsequently filed a False Claims Act anti-retaliation lawsuit against his employer Gulf Region Radiation Oncology and the two predecessor companies, West Florida Medical Center Clinic and Sacred Heart Health System, which both maintained separate legal entity status.

Sacred Heart and West Florida Medical Center Clinic responded by seeking dismissal, arguing Koch was not their employee so they could not be held liable under the False Claims Act for his firing.

The court determined that the defendants’ defense may have had merit before May 2009. However, at that time, the Fraud Enforcement & Recovery Act of 2009 amended and expanded the False Claims Act’s anti-retaliation provision to reach non-employers. Thus, the court found that because the alleged retaliatory discharge happened after May 2009, Mr. Koch could sue West Florida Medical Center Clinic and Sacred Heart Health System, even though they may not have technically been his employers.

More information for whistleblowers is located at the Nolan Auerbach website.

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