Was Whistleblowing a Reason for Firing or the Reason?

The outcome of a physician whistleblower’s retaliation claim against his former medical group turns on the question whether whistleblowing was a reason or the reason he was fired.  If it was a reason, he loses.  If it was the reason, he wins.

Dr. Donald Helfer was an anesthesiologist and shareholder with Associated Anesthesiologists of Springfield (AAS).  Beginning in 2008 or earlier, tension arose between Helfer and the rest of the group.  The others found Helfer isolated and hard to work with.  They were also unhappy because in certain surgeries, he used too many narcotics.   Another cause was his habit of contacting third parties over concerns about the group’s business practices.  More than once the group formally directed him to take his concerns to the executive committee and not contact outside parties.

In May 2009 Helfer told the group president he was concerned about the group’s Medicare billing practices.  Unsatisfied with the response, Helfer contacted CMS directly.  The group fired him within a month of learning of the contact.

Helfer filed a qui tam action alleging retaliatory action in violation of the False Claims Act (FCA), claiming he was fired for contacting CMS over the group’s billing practices.  On January 14 the court ruled on the group’s motion for summary judgment.  The main issue was whether an FCA retaliation action requires a plaintiff to prove whistleblowing was a cause for firing, as Helfer argued, or the cause of firing, as AAS argued.

The decision came down squarely for the defense position: “This court agrees with Associated that Dr. Helfer is required to prove that his protected conduct [i.e., contacting CMS] was a ‘but-for’ cause of his termination”—that he would not have been fired “but for” the contact.

Nevertheless, the court denied the defense motion, reasoning that Helfer should have the chance to prove a “but-for” case to the jury.

The case is Helfer v. Associated Anesthesiologists of Springfield, 2016 BL 10262, no. 3:10-cv-3076 (C.D. Ill, 01-14-16).

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