George Breen Quoted in “Attorneys Use EMTALA in False Claims Act Lawsuits — So Far, Unsuccessfully”

ED Legal Letter

George B. Breen, Member of the Firm in the Health Care & Life Sciences and Litigation practices and Chair of the firm’s National Health Care & Life Sciences Practice Steering Committee, in the firm’s Washington, DC, office, was quoted in ED Legal Letter, in “Attorneys Use EMTALA in False Claims Act Lawsuits — So Far, Unsuccessfully.”

Following is an excerpt:

Two recent lawsuits, both filed in Mississippi, tested a novel theory of liability. Attorneys argued that the hospital did not provide stabilizing treatment or transfer as required by the Emergency Medical Treatment and Labor Act (EMTALA), rendering patient bills to the federal government actionable under the False Claims Act (FCA).1,2

The Department of Justice (DOJ) moved to dismiss the cases, both of which alleged FCA violations based on purported EMTALA violations.3,4

In explaining its rationale, the DOJ wrote, “EMTALA violations typically involve turning patients away from a hospital emergency room rather than treating them and, thus, do not lead to the submission of any false claims to the government.”

One case was dismissed in March 2019, and the other is pending. “The False Claims Act was never intended to address every potential regulatory violation,” says George B. Breen, JD, adding that there are existing administrative remedies to address EMTALA violations. “The government apparently recognized this in taking the affirmative step to seek dismissal of these cases after it had declined to intervene in each of them,” says Breen, an attorney at Washington DC-based Epstein Becker & Green.

Previously, the DOJ used its authority sparingly to dismiss FCA actions brought by whistleblowers. Even baseless cases were allowed to proceed. “This caused healthcare providers to spend considerable resources defending against meritless claims,” Breen explains. The DOJ’s forceful rejection of the allegations in the recent cases suggest this is no longer the status quo, making additional similar cases unlikely.