Retaliation Plaintiff Subjectively Believed She Had Been Asked to Commit Fraud. Why Didn’t the Court Think This Belief Was Objectively Reasonable?

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Plaintiff in retaliation action alleged she had been asked to draft patient assessments so they could be fraudulently billed to Medicare. The court found that while the plaintiff  believed in good faith that she had been asked to commit fraud, her belief was not reasonable.

Carol Clark-Kutscher v. SSM Health Care Corporation, S.D. Ill., No. 21-01446
  • Retaliation Claim – Employees are protected from retaliation under the FCA for any efforts taken to stop fraud. The plaintiff asserted a retaliation claim, alleging she had been fired for refusing to commit Medicare fraud.
  • Protected Conduct – To prove retaliation, a plaintiff must show their termination was motivated by protected conduct, that is, by efforts taken to stop the fraud. To show protected conduct a plaintiff must demonstrate a good faith belief the employer was committing fraud, and that the belief was reasonable.
  • Plaintiff’s Belief Was Not Reasonable – The court found the plaintiff had a subjective good faith belief that she had been asked to commit fraud. Still, the court concluded this was not an objectively reasonable belief. The plaintiff alleged she had been encouraged to increase documentation for her billable patient assessments so those statements could be billed to Medicare. But someone else independently evaluated her assessments. She never actually knew which part of or whether her assessments were fraudulently billed. She had not reason to believe her employer was committing fraud.

–Case summary by Craig LaChance, Senior Editor