Articles on Law, Science, and Engineering

Just When You Thought It Was Safe to Go Outside: The False Claims Act and Scientific Misconduct

• Introduction
• History of the False Claim Act
• What is a Claim?
• When is a Claim False?
• But I Did Not Mean to Cheat!
• What Is the Penalty?
• To Continue

Introduction[index]

In previous articles [1] we have discussed the investigation and punishment of misbehaving scientists by the Office of the Inspector General (OIG) of the Department of Health and Human Services. While these were often characterized by the Alice in Wonderland notion of punishment before verdict, the actions of the Appeals Boards in overturning several egregious claims was heartening to many scientists.[2] In this article we discuss a new avenue for punishing miscreants/pillorying the innocent: The False Claims Act (FCA).[3]

When you are in trouble with the OIG, you risk losing your grant, losing your ability to apply for grants, and suffering the professional humiliation of being put on the OIG offender list. You can also spend a few tens to hundreds of thousands of dollars on attorney's fees to stave off these possibilities, and you may not work for a decade or so waiting for the results of the inquiry. The FCA , in contrast, has severe penalties: you can go to jail for the rest of your life and be fined millions of dollars. The attorney's fees you can incur are only limited by your net worth and that of your friendly banker.

What makes the FCA interesting is that anyone who knows about your misconduct can bring a lawsuit in the Government's name for the civil penalties (the fines). Thus the cases are not screened by a prosecutor, but can be brought by any person in your lab or institution with a story that an attorney believes can convince a jury that you have violated the FCA. This is called a qui tam, or private attorney general provision. These are used to encourage individuals to file lawsuits that further the government's interests. They also allow an unlimited number of lawsuits to be filed, since they do not deplete the limited funds the Justice Department has to keep scientists in line. To encourage this altruistic behavior, the qui tam plaintiff gets to keep 25-30% of the fines assessed against you, with the rest going to the government.

This is not a theoretical risk. On May 18th, a Baltimore jury ordered the University of Alabama and four scientists to pay $1.9 million in fines and reimbursement for violating the FCA.[4] The plaintiff, Dr. Pamela A. Berge, an epidemiologist, was a doctoral student at Cornell when she went to defendants' lab to do research. While we will review the detailed allegations of her claim in a later article, the core of the action was that the defendants did not give her proper attribution and presented her work for their own. This became a false claim when the defendants used this improperly attributed work as part of an National Institute of Health (NIH) grant application.

Next - History of the False Claim Act