News & Developments

Supreme Court Weighs Original source Element of Qui Tam Suits Under False Claims Act

In Rockwell International v. Unites States, a case closely watched by the healthcare industry, the United States Supreme Court is considering the level of direct and independent knowledge that a qui tam relator must have in order to satisfy the ‘original source’ requirement of the Federal False Claims Act. The case has been briefed and argued and many interested parties, including the American Hospital Association, filed amicus briefs in the matter. The Justices have yet to rule on this important case. The following is a selection of the briefs filed by the parties, the amicus briefs and a transcript of the oral argument.

Petition Phase Briefs (PDF format)

• » Certiorari Petition
• » Brief for the United States in Opposition
• » Respondent Stone's Brief in Opposition
• » Reply to Briefs in Opposition
• » Amicus Brief of the Chamber of Commerce

Merits Phase Briefs (PDF format)

• » Petitioner's Brief
• » Brief for the United States
• » Petitioner's Reply Brief
• » Amici Brief of the Chamber of Commerce, et al.
• » Amici Brief of the American Hospital Ass'n, et al.

Group Encourages Legislators to Mandate Timely Notification of Potential Surrogates

Following years of only limited success at encouraging people to execute advance directives, a number of states have enacted legislation so that family members can serve as surrogate decision makers for incompetent people in the absence of an advance directives. The Uniform Health-Care Decisions Act, which provides for the use of surrogates, defines a surrogate as an individual, other than a patient's agent or guardian, authorized to make a health-care decision for the patient. The American Medical Association also supports the use of surrogates and states that when an incompetent patient lacks a documented advance directive, or when reasonable efforts have failed to uncover such documentation, physicians should defer to state law to identify a surrogate decision maker.

There is now a movement to require hospitals and health care providers to contact potential surrogates within a distinct period of time. The "Next of Kin Bill" is backed by a grass-roots group that has been encouraging state legislators to enact statutes requiring hospitals to make "every reasonable effort" to notify the next of kin of incompetent patients, within twenty-four to forty eight hours of their admission. The group tells a sad story about a woman who did not hear of her mother's hospitalization for six days and was unable to join her mother before her death. They criticize the hospital for failing to look at past admission records within a timely manner in order to locate and then contact the family.

As a result of the group's efforts in Illinois, the Illinois Health Care Surrogate Act, which requires health care providers to make reasonable inquiries about the availability and authority of a health care agent or a possible surrogate, was amended on August 15, 2001. The amendment provides that a reasonable inquiry might include identifying a member of the patient's family by examining the patient's personal effects or medical records. In addition, it states that an attempt to contact the family member by telephone must be made within 24 hours after a determination that the patient lacks decisional capacity by the provider. The group is pleased that California, Hawaii, Minnesota, Texas, and Utah now have similar statutes.

Efforts are now underway by the group to address the issue at the federal level through amendments to our Medicare and Medicaid laws. According to the group, an Illinois congressman is in the drafting process.