Reprinted with permission from Health Law Resource Center (May 2013). Copyright 2013 by the Bureau of National Affairs, Inc. www.bna.com.
The greatest issue in False Claims Act investigations and litigation has long been recognized as the imposition of damages, and how you get there matters. See McDermott, Qui Tam: An AUSA's Perspective, 11 False Cl. Act and Qui Tam Q. Rev. 9 (October, 1997). The False Claims Act, 31 U.S.C. § 3729, is a civil statute that is remedial in nature but punitive in design due to treble damages and mandatory minimum penalty provisions. For some industries, like health care, where there is a high volume of low dollar claims or submissions, and evolving theories of liability, the potential for damages can be of constitutional import. Further, under the FCA, mandatory penalties may be imposed even where the government has suffered no damages.