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eligible for any cooperation credit, corporations must provide to the DOJ all relevant facts
about the individuals involved in corporate
misconduct; ( 2) both criminal and civil corporate investigations should focus on individuals
from the inception of the investigation; ( 3)
criminal and civil attorneys handling corporate investigations should be in routine
communication with one another; ( 4) absent
extraordinary circumstances, no corporate
resolution will provide protection from criminal and civil liability for any individuals; ( 5)
corporate cases should not be resolved without
a clear plan to resolve related individual cases
before the statute of limitations expires, and
declinations as to individuals in such cases
must be memorialized; and ( 6) civil attorneys
should consistently focus on individuals as
well as the company and evaluate whether
to bring suit against an individual based on
considerations beyond that individual’s ability
to pay.
Healthcare providers in the crosshairs
Under these guidelines, DOJ authorities are
required to investigate and pursue individuals responsible for corporate misdeeds in
order to pursue the more lucrative claims
against corporations. Consequently, physi-cians and other healthcare providers, like any
other executives, can and are beginning to be
named at regular intervals as parties to FCA
enforcement actions. This uptick is also attributable to whistleblower interests. Physicians
are desirable targets for whistleblowers,
who often feel personally victimized by the
physicians involved.
Settlements for claims involving personal
liability of physicians under the FCA have
varied greatly over the last two years. Most
physician settlements were in the low 6- or
7-figure range, with the highest settlement
being $20 million paid by a pain management
physician, Robert Windsor, who practiced in
Georgia and Kentucky. 3 Many physicians in
the crosshairs of FCA investigations are elect-
ing to settle FCA claims in which they are
individually named to avoid the high financial
costs of protracted litigation in addition to the
other penalties that can result from FCA liabil-
ity — including lost professional reputation,
exclusion from federal healthcare program
participation (i.e., Medicare/Medicaid), pen-
alties under state law, and loss of medical
license, medical board membership, and
clinical privileges. 4
Physicians and other health care providers
should take note of these FCA enforcement
actions when structuring their future clinical
and billing practices, because the possibility of being named in FCA investigations is
becoming increasingly realistic for physicians.
Moreover, individual physicians and their
group practices should not make the mistake
of thinking that the government only investigates obviously bad actors, as investigators’
resources and scrutiny continue to grow. Most
FCA settlements with physicians fall within
one of the five categories discussed below.
Case law for services not performed
In 2017, many of the FCA settlements
resolved allegations of physicians billing
federal healthcare programs for services that
were either medically unnecessary or never
actually performed.
Georgia and Kentucky
On February 1, 2017, Dr. Windsor,
a physician-owner of a chain of
pain-management clinics in Georgia and
Kentucky operated under the umbrella
of National Pain Care, Inc., agreed to a
$20 million consent judgment to resolve
allegations that he violated the FCA by billing federal healthcare programs for surgical
monitoring services that he did not perform
and for medically unnecessary diagnostic
