Wednesday, February 24, 2021
On February 22, 2021, the United States Supreme Court declined to review two False Claims Act (FCA) cases, solidifying a split that pits the Eleventh Circuit against the Third and Ninth Circuits as to whether a disagreement over a physician’s clinical judgment can serve as a basis for establishing “falsity” under the FCA. Specifically, the Eleventh, Third and Ninth Circuits have each rendered decisions about the need to demonstrate objective falsity, and whether a reasonable difference of opinion between physicians is sufficient to trigger FCA liability.
Objective Falsity and a Divide Among the Circuits
For decades, FCA litigants have battled over whether a difference of opinion – including disagreements over medical decision-making – can serve as a basis for establishing falsity. Opponents continue to argue, with varying degrees of success, that a claim is “false” only where there is an