Two Recent FCA Cases Reflect Courts’ Continued Skepticism of Statistical Sampling To Prove FCA Liability
Courts are continuing to grapple with whether relators can use statistical sampling to prove liability in False Claims Act cases. Two recent cases demonstrate that courts remain skeptical that relators can meet their burden by relying on sampling, instead of proving liability as to each false claim allegedly submitted for payment.
In United States ex rel. Wollman v. The General Hospital Corporation et al., the relator alleged that defendants fraudulently billed Medicare and Medicaid for “overlapping” surgeries in which a teaching physician concurrently performed multiple surgical procedures, and presented statistical data supporting this inference. But the court found that the relator did not plead specifics as to the actual submission of claims, and dismissed the suit.
United States v. Conroy v. Select Medical Corporation, et al. involved allegations that a long-term acute care hospital extended or shortened patient stays depending on which would maximize payment under Medicare. The relators sought to use statistical sampling to determine the number of fraudulent claims and the damages, but the judge stated that “sampling is not an appropriate cure for oppressive, burdensome, and expensive discovery.”
