The Whistle Is Alive and Well

There is a sign in front of the Department of Veterans Affairs building in Washington D.C. with a quote from Abraham Lincoln about the mission of the VA: “To Care for Him Who Shall Have Borne the Battle and For His Widow and His Orphan.” Recently, an internal medicine physician, and a long time employee of the VA, “blew the whistle” on the significant delays patients were experiencing in scheduling appointments for care. As a result of the delays, he described patients who were literally dying while waiting for appointments.

. . . they are compassionate individuals concerned with patient safety and providing quality of care for the patients they serve, not just blowing the whistle on billing fraud.

As in the case of the typical relator (whistleblower), Dr. Sam Foote expressed his concerns in two letters directed to the Veterans Affairs Inspector General that apparently went unnoticed. Quite often, whistleblowers in healthcare are given a “bad rap.” They are perceived as individuals interested in capturing significant financial gains when in fact they are compassionate individuals concerned with patient safety and providing quality of care for the patients they serve, and not limited to blowing the whistle on billing fraud. Qui tam plaintiffs have pursued False Claims Act “worthless services” quality of care cases for many years.  For the most part, these cases have not been actively pursued by the Justice Department. This, however, may be changing.

Earlier this year, the Seventh Circuit heard oral arguments in the case of US Ex. Rel. Absher v. Momence Meadows. This case involved allegations of substandard care at an Illinois nursing home. The jury returned a $19 million verdict and trebled damages of $9 million. The court, however, entered just the $9 million judgment, ruling the other $19 million in penalties levied by the jury violated the Eighth Amendment’s prohibition on excessive fines. One of the issues briefed is whether, in addition to services either not rendered or not rendered as prescribed, substandard care will be considered so deficient that it will meet the definition of “worthless services.”

In the meantime, kudos to Dr. Foote for doing the right thing for the patients.