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Lovenox Whistleblower Lawsuit Dismissed

Dec 22, 2008 | Parker Waichman LLP

In recent years many pharmaceutical employees have come forward to report fraudulent billing, illegal marketing, and undisclosed drug side effects.  These so-called “whistle blowers” have helped the federal government recover millions of dollars that were obtained illegally by the pharmaceutical companies.  Now, a Chicago federal court just dismissed a 2003 federal False Claims Act—also known as qui tam—lawsuit that was filed by a former Aventis sales rep, reports Pharmalot.  The rep charged Aventis with off-label promotion of the blood thinner Lovenox and inducing doctors and hospitals to submit fraudulent Medicare claims, said Pharmalot.  Aventis is now owned by Sanofi.

In the suit, Katy Kennedy, who, says Pharmalot, also filed a retaliation claim, and Frank Matos, both former sales reps alleged Aventis prompted physicians to prescribe Lovenox for atrial fribillation, acute myocardial infarction, mechanical heart valve replacement, and other off-label conditions.  The two added that Aventis paid one pharmacist over $30,000 for speaking engagements and hired him to ensure Lovenox was kept on hospital formularies he controlled and that the drug maker also granted a variety of organizations in amounts from $5,000 to $30,000 to use or promote Lovenox off-label, Pharmalot reported.

Two years ago the government refused to join the suit and Judge Matthew Kennelly, a US District Court Judge in Chicago, ruled that the Medicare claims that were filed as a result were not “material” to the amount the government paid for treatment of any patient, said Pharmalot.  It seems that Medicare reimbursement was based on a diagnosis group code that was linked to patient diagnosis and age, not to services; therefore the Medicare claims could not have been false, added Pharmalot.

Kennedy and Matos both said that false claims were filed for other payments that were “above and beyond the diagnosis code rate,” so-called “outlier claims,” which can be submitted by a hospital to recover Medicare payments for inpatient services when “operating and capital costs exceed the payment by a specified amount,” explained Pharmalot.  They failed to identify any specific incidence of outlier claims involving Lovenox and off-label use, said Kennelly’s ruling, reported Pharmalot.

The False Claims Act states that whistle-blowers be rewarded a percentage of the money that the government recovers as a result of their Qui Tam lawsuits, which encourages people to assist the government in reducing Medicare fraud, defense fraud, and other fraud despite the effect whistle-blowing might have on their jobs and personal lives.  Under the False Claims Act, the government may recover up to three times the amount of money it lost as a result of the fraud; the whistle-blower's share is calculated based upon the amount recovered, not the actual losses.  A number of factors determine how much money a whistle-blower will receive if the government is able to recover money from the defendant.  If the government joins the case, the whistle-blower is entitled to at least 15 percent but not more than 25 percent of what the government recovers.  If the government declines to join the case and the whistle-blower continues with a suit against the defendant, the whistle-blower is entitled to at least 25 percent but not more than 30 percent of the money the government recovers.


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