Ninth Circuit Upholds Whistleblower Complaint Against Health Insurance Giants

Thursday, September 1, 2016
By Miles O. Indest, J.D./M.B.A.; Law Clerk, The Health Law Firm

In a David and Goliath legal battle, a whistleblower recently won a small victory against several large insurance companies accused of defrauding the Medicare Advantage Program.

Ignorance Was Bliss: Medicare Payments for Over-Coded Diagnoses.  

On August 10, 2016, the United States Court of Appeals for the Ninth Circuit unanimously ordered United Healthcare, WellPoint, Aetna, and other health insurance providers to answer whistleblower James Swoben’s False Claims Act complaint.

The complaint alleged that the insurance companies structured their audits of health provider coding to search for under-coded diagnoses but to neglect over-coded diagnoses. As a result, the insurance companies allegedly acquired much bigger Medicare payments than they should have received.

The companies responded that (1) they were not accountable for the accuracy of codes submitted by third-party health care providers; and (2) they had no duty to identify codes that were improperly submitted. Initially, the district court held in favor of the insurance companies that the complaint was too vague.

Insurance Companies Are Accountable for False or Reckless Certifications.

On appeal, the Ninth Circuit held that the insurance companies must answer the whistleblower’s complaint.

First, the court determined that the insurance companies were accountable for their own false certifications that the coding was correct, not for the underlying false coding itself.

Second, insurers can be liable under the False Claims Act for submitting certifications with reckless disregard for their accuracy, said the Ninth Circuit.

To read the Ninth Circuit’s opinion, click here.

For more information on whistleblower rewards, click here.

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

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.


Overley, Jeff. “Insurers Must Face Medicare Advantage FCA Suit: 9th Circ..” Law360. (Aug. 10, 2016). Web.

Render, Hall. “9th Circuit issues blockbuster Medicare Advantage FCA decision.” Hall Render Blog. (Aug. 12, 2016). Web.

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