In the world of False Claims Act (“FCA”) litigation, the recent case United States ex rel. Robert C. O’Laughlin, M.D. v. Radiation Therapy Services, P.S.C., et al. serves as an important reminder of the need for concrete evidence when asserting qui tam FCA claims.

In this case, Dr. O’Laughlin filed a qui tam action under the FCA, alleging that Radiation Therapy Services and its affiliates submitted fraudulent claims to Medicare and Medicaid for radiation oncology and chemotherapy services.  Despite multiple amendments to his complaint and extensive discovery, however, O’Laughlin could not meet his burden of showing that Radiation Therapy Services knowingly submitted or caused to be submitted false or fraudulent claims to the government, and the court ultimately dismissed the case on summary judgment.

Throughout this case, O’Laughlin relied on generalized allegations and speculative theories rather than any concrete proof.  For example, O’Laughlin broadly alleged a scheme in which chemotherapy services were billed as if provided by a physician (and thus eligible for a higher reimbursement rate by Medicare) when, in fact, they were purportedly neither provided by nor directly or personally supervised by a physician.  Yet when pressed during his deposition, O’Laughlin could not identify a single specific claim meeting this criterion.  

O’Laughlin similarly tried and failed on multiple occasions to demonstrate that Defendants billed for chemotherapy services when no physician was present at the clinics.  O’Laughlin relied on a so-called “Master Schedule” maintained by the Defendants to argue that the schedule proved the absence of physicians during chemotherapy sessions.  However, the Defendants offered reliable testimony from several individuals explaining that the Master Schedule was merely a summary of patient appointments and was not intended to document physician presence or absence, shattering O’Laughlin’s already shaky evidentiary foundation. 

To this, the court emphasized that actual evidence of a submitted claim is required in order to establish FCA liability.  And to survive a defendant’s motion for summary judgment in particular, the plaintiff is challenged to “put up or shut up” on critical issues.  This case highlights the high burden of proof required in FCA cases and provides a helpful guideline to both plaintiffs and defendants in how to effectively navigate discovery and litigate strategically. Both sides need to keep in mind that reliance on generalized allegations of fraud, without identifying specific instances, is insufficient to meet the evidentiary burden required to survive summary judgment in an FCA matter. 

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