Early Bird Whistleblowers May Block Third Whistleblower From $18M FCA Deal

Friday, September 2, 2016
By Miles O. Indest, J.D./M.B.A.; Law Clerk, The Health Law Firm

On August 16, 2016, two whistleblowers asked a Colorado federal court to disqualify a third whistleblower from sharing in a $18 million False Claims Act settlement award with OptumHealth. Evercare LLC (now known as OptumHealth) had allegedly submitted false Medicare claims for hospice care on behalf of patients who were not in fact terminally ill.

Whistleblowers Use “First-To-File” Rule To Disqualify Later Claim.

The two whistleblowers—Terry Lee Fowler and Lyssa Towl—alleged that the third whistleblower’s claim was brought two years too late, as it was indistinguishable from their earlier filed claim.

Under the “first-to-file” rule, a False Claims Act whistleblower cannot bring a fraud claim if it alleges the same essential facts of a previously-filed claim or the same type of fraud. 31 U.S.C. § 3730(b)(5). This rule incentivizes qui tam relators to bring fraud complaints to the government’s attention as soon as possible.

The third whistleblower—Sharlene Rice--argued against a harsh and inequitable disqualification, claiming that Fowler and Towl “were more than happy to benefit” from Rice’s separate allegations and added pressure on OptumHealth. Fowler and Towl did not raise any jurisdictional concerns during the two years that Rice collaborated with them and assisted the U.S. Department of Justice’s investigation, Rice said.

Key Takeaway: Do Not Wait To Seek Legal Help.

Ultimately, this case reflects the importance of the first-to-file rule and how it may affect your potential award as a whistleblower.

Whistleblowers should contact an experienced attorney to file a timely and effective complaint to ensure that an earlier filing does not bar their claims. Even if a qui tam suit regarding the same company has already been filed, an experienced attorney may properly distinguish the two suits so that your whistleblower complaint is not barred.

Contact Health Law Attorneys Experienced with Health Care Fraud and Qui Tam or Whistleblower Cases.

The Health Law Firm’s attorneys routinely represent physicians, dentists, orthodontists, medical groups, clinics, pharmacies, assisted living facilities (AFLs), home health care agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions.

Attorneys with The Health Law Firm also represent health care professionals and others who may desire to file a qui tam, False Claims Act or whistleblower suit. We work with physicians, nurses and other professionals to investigate, document and file such cases. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding and other services that assist us in such matters. We have represented number of doctors and other licensed health professionals as relators in bringing qui tam or whistleblower cases. Our attorneys are also available to defend physicians, medical groups and health care providers in qui tam or whistleblower cases.

To contact The Health Law Firm, please call (407) 331-6620 or visit our website at www.TheHealthLawFirm.com.

About the Author: Miles Indest, J.D./M.B.A., graduated in May 2016 from Tulane University Law School and the Freeman School of Business. He has served three years as a member of Tulane Law Review and served one year as the Writing Skills Chair of Tulane Moot Court.


Kass, Dani. “2 Whistleblowers Look To Kick A 3rd From $18 FCA Deal.” Law360. (Aug. 16, 2016). Web.

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