Experts Weigh Whistle-Blower Laws as a Remedy for Health Care Deficits
October 23, 2009 — A panel convened by the Health Law Program at the Earle Mack School of Law on Oct. 23 highlighted the role of whistle-blowers in holding health-care providers accountable for their actions.
Philadelphia-area prosecutors aided by whistle-blowers have obtained record-breaking $1.4 billion and $2.3 billion settlements with pharmaceutical firms in the last year for off-label marketing of their products.
One of the prosecutors involved in those cases, First Assistant U.S. Attorney for the Eastern District of Pennsylvania Virginia Gibson, attorneys who have represented whistle-blowers and an attorney who has defended pharmaceutical firms and other health-care providers took part in the event.
Gibson explained that amendments to the False Claims Act, a Civil War era law designed to safeguard the Union Army’s supply of robust mules, have become key to government efforts to stop health care fraud.
“It has become a very, very important tool for the U.S. government,” said Gibson, who oversaw pharmaceutical fraud cases that brought in record settlements, including a $1.4 billion settlement with Eli Lilly and part of a $2.3 billion recovery against Pfizer.
Whistle-blowers set the stage for those settlements by exposing Eli Lilly’s illegal off-label marketing of the atypical antipsychotic Zyprexa and Pfizer’s false promotion of Zyvox as having superior effects to those of a lower-priced but more effective generic antibiotic.
Since the False Claims Act was amended in 1986 to protect whistle-blowers from retaliation by their employers, the federal government has recovered nearly $30 billion in settlements, Gibson said.
Attorney Stephen Sheller, who has represented whistle-blowers in the pharmaceutical industry including insiders at Pfizer and Eli Lilly, said states and some cities – as well as the federal government – have enacted laws to recover funds through fraud statutes.
Thomas M. Gallagher, a partner with Pepper Hamilton and chair of the firm’s White Collar and Corporate Investigations Practice Group, said pharmaceutical companies and other health care providers have established aggressive internal compliance programs that encourage employees to call attention to abuses.
Barry Furrow, professor of law and director of the school’s Health Law Program, organized and moderated the panel, said nurses, doctors and other hospital employees also have a role in exposing threats to patient safety. But while some states have enacted laws that encourage reporting of medical errors, Furrow said, data collection has been inconsistent.
“We know that adverse events are under-reported,” Furrow said, adding that hospitals can penalize doctors who call attention to problems by halting their admitting privileges and other tactics. “Even physicians are vulnerable.”
Thad Guyer, a partner with T.M. Guyer and Ayers & Friends, said whistle-blowers must be tenacious, because employers know how to disguise retaliatory terminations and lay-offs of whistle-blowers.
“Very few employers will come right out and say, ‘You’re fired,’” Guyer said. “What they do is look for other ways to nudge them to be quiet.”
The event followed a panel discussion on health reform the law school co-sponsored on Oct. 5 with the Drexel University School of Public Health.
In that discussion, organized by Professor Robert Field, experts in public health, medicine, health policy, health law and insurance weighed the pros and cons of various policy proposals under discussion for reforming the nation’s health care system.
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