I recently heard from a colleague from my days as a Bronx prosecutor that I had lost contact with for many years. I was pleased to learn he was doing well and is in charge of a large division of the New York Attorney General’s office’s Medicaid Fraud Control Unit. We got to talking and I realized that in all the years that I have been handling nursing home cases I have never reported a case to law enforcement that involved neglect and/or altered records. I have had many cases where the aides are charting that they provided care when my client is in the hospital or when someone went back and tried to re-create the record to cover up the neglect. I have really considered how criminal prosecution of these transgressions fit in with my representation of the victim.
As plaintiff lawyers, we must consider how the client’s case would be impacted by the involvement of law enforcement. Will the facility withhold discovery because of a criminal investigation? Will witnesses take “the fifth”? If so, how will that impact a case? I can see it as being helpful if a witness takes the fifth on a civil case. On the other hand, a criminal conviction of individuals who work at or operate the facility would likely be very helpful to you case, including the pursuit of the punitive damages.
You might also consider involving an attorney or the Government in bringing a Qui Tam action if you suspect Medicare or Medicaid fraudulent billing. It is my understanding that a Qui Tam action is one brought by a private individual on behalf of the Government under the false claims act found in the United States Code, Title 31, Section 3729, through 3733 (31 U.S.C. Section 3729-3733). The Government may choose the join the action once notified. If there is recovery, the whistleblower can receive 15-30% of the Government’s recovery.
To reach the Attorney General’s Medicaid Fraud Control Unit dial: 1 (800) 771-7755 and press “3” or feel free to ask for my former colleague Thomas O’Hanlon. The link to a form on the Attorney General’s website to report Medicaid Fraud or patient/resident abuse and/or neglect is: http://www.ag.ny.gov/comments-mfcu