George B. Breen Quoted in "Supreme Court Decision Expands False Claims Act Liability for Providers"

Breen argued that the new interpretation will allow subsequent relators to build off of and improve similar claims, exposing providers to additional liability.

"Hypothetically, if the government declines intervention and the relator abandons the lawsuit, the healthcare provider can't have any comfort that the lawsuit won't come back again or by someone else, because that lawsuit doesn't bar any subsequent suits," he said. "You now have an opportunity for relators to realize where the defects were in the original pleading or other pleadings, to correct them, and to file another lawsuit." …

For healthcare entities and whistleblowers alike, the Supreme Court's ruling offers new avenues to fraud litigation. According to Breen, "opportunistic" whistleblowers now have the ability to learn from the mistakes in previous claims, acquire additional information and file potentially stronger allegations. This approach is vastly different than the way circuit courts have previously interpreted the FCA.

"There was a race to the courthouse, whoever was first was successful, and that's the case that was able to go forward," Breen said. "This [decision] now throws that out the window and allows not only for subsequent and repetitive suits, but allows for someone to sit back, fix the problems that existed, and file what you might call a better lawsuit."