Eleventh Circuit Holds That Winning the “Battle of the Experts” Won’t Prove Falsity

On September 9, 2019, the Eleventh Circuit held in US v. AseraCare, Inc., No. 16-13004, that a reasonable difference of medical opinion is insufficient to establish falsity under the False Claims Act. AseraCare contrasts with two recent decisions from the Sixth and Tenth Circuits—US v. Paulus, 894 F.3d 267 (6th Cir. 2018), and US ex rel. Polukoff v. St. Mark’s Hospital, 895 F.3d 730 (10th Cir. 2018), which seemed to lighten DOJ’s burden in medical necessity cases. Instead, AseraCare takes the more reasoned position that DOJ cannot establish FCA liability “if the underlying clinical judgment does not reflect an objective falsehood.”

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