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False Claims Act - part II

Posted Sep 22 2008 6:23am

Wesley Smith describes my proposal to use the FCA ("Lincoln's Law") to combat inappropriate and excessive EOL treatment as "a particularly ham-fisted approach to forcing hospitals to impose medical futility." He predicts that "such coercion will backfire, particularly in an era of strained resources. Whatever trust remains in health care will evaporate. And the ICU or hospital will become scenes of violence as distraught families fight against imposed cessation of life support. Indeed, it has already happened."

Wesley Continues:

This is the consequence of accepting a quality of life ethic. Rather than treating the patient as a person, as Paul Ramsey advocated, it is to treat the sickest and most vulnerable as disposable. And don't think it would stop with medical futility. Once the principle was established that bioethicists could decide who received care and who didn't, the door would open wide to other forms of medical discrimination.

Education works to help patients and families make better EOL choices. But using the club of federal litigation against hospitals that provide "too much care" in order to impose social policy would be undemocratic and tyrannical.

Admittedly, using the FCA with respect to quality claims is still a bit unsettled. But it is certainly plausible. Without getting into the three main theories for a FCA claim, take a paradigm case: Baby K.

Remember, Baby K was an anencephalic infant who may have been the longest living anencephalic infant in recorded history. In that case the 4th Circuit held that Fairfax Hospital had to treat Baby K because she arrived at that hospital on a transfer from a nursing home in an emergency condition, thus triggering EMTALA.

Take the same case but assume: (a) EMTALA did not apply because Baby K remained an inpatient at the hospital, (b) the providers acceded to Baby K's mother's request to continue treating Baby K despite her anencephalic condition.

Under those circumstances in today's FCA environment, a USATTY could reasonably argue that the hospital should not have billed the federal government for those expenses. The well-settled standard of care is to provide comfort care only and not aggressive treatment for anencephalic infants.

Wesley Smith responds:


If the government ever tries to coerce hospitals into refusing life-sustaining treatment based on subjective quality of life standards imposed by bureaucrats, there will be riots in the streets (figuratively speaking). In any event, such a course, at least for now, would be patently untenable. I also doubt whether a judge would rule that maintaining life--when that is what a patient/ family wants--is not longer a proper purpose of medicine.
I actually do not think the claim is that far-fetched. Like most legal claims, it depends on who your judge is. More on that in an upcoming post.
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