Whistleblowers Report Substantial Stresses, Limited Support When Helping Expose Health Care Fraud - Research from BWH

Boston, MA, June 21, 2010 --(PR.com)-- New research from Brigham and Women's Hospital (BWH) evaluates the motivations and experiences of whistleblowers responsible for the recent wave of federal health care fraud cases against pharmaceutical manufacturers and finds that, despite their altruistic goals, whistleblowers experience substantial hardships on both a personal and professional level. These findings are detailed in a Special Article in the May 13, 2010 issue of the New England Journal of Medicine.

Among all current federal health care fraud investigations, 90% of them are "qui tam" actions; where citizens with direct knowledge of the alleged fraud initiate litigation on behalf of the government and then go on to serve as active participants in the case. Qui tam actions have led to over $9 billion in recoveries in recent years, and the False Claims Act permits whistleblowers to collect a portion of the settlement as a reward. Such actions are touted as cost-effective and may deter inappropriate behavior, but little is known about how well the qui tam process works and the motivations of the whistleblowers involved.

According to Aaron Kesselheim, MD, JD, MPH, lead author of the paper and Instructor in Medicine in the Division of Pharmacoepidemiology and Pharmacoeconomics at BWH and Harvard School of Public Health, "Popular perceptions of whistleblowers vary widely from heroes struggling against corporate greed to employees of questionable integrity looking for a payout. This research provides some solid qualitative data about the experiences of those who participate in the process and has direct implications for policymakers counting on the False Claims Act qui tam mechanism to help control health care costs."

In this study, Kesselheim and colleagues interviewed 26 whistleblowers from 17 different qui tam cases against pharmaceutical manufacturers, which have emerged as the most lucrative type of health care fraud enforcement action. Of the interviewees, 22 (85%) were employees of the defendant company (insiders), including nine at the executive or mid-managerial level and 13 lower-level employees. While most insiders noticed the illegal practices after a career change or a promotion within the company, all four non-insiders came across the fraud during their normal course of business.

Whistleblowers can initiate cases on the government's behalf by filing a sealed complaint in federal court with the help of a personal attorney. The Department of Justice (DOJ) then investigates the allegations and, if evidence supports the claims, then the DOJ may take the lead in legal action. In this study, nearly all whistleblowers tried to fix the issues internally first; they became litigators either accidentally (while pursuing other claims) or as a last resort.

Whistleblowers are eligible to receive 15-25% of the recovery to the government from their cases. In this study, after attorney's fees and taxes, five of the relators received less than $1 million in financial recoveries, 13 received between $1 million and $5 million, and 7 received more than $5 million (one did not provide an estimate). More than half felt that their net recovery paled in comparison to the time spent on the litigation and the disruption that their participation caused to both to their career and personal life.

Every whistleblower stated that the potential financial reward had not motivated their participation in the qui tam process. Reported motivations fell under 4 non-mutually-exclusive themes: integrity, altruism/public safety, justice, and self-preservation. Integrity was the most common, with 11 of 26 conveying this reason for choosing to report the fraud. The second most common, reported by seven, was altruism/public safety. These whistleblowers felt as though they had unique professional or educational backgrounds that provided them with a better understanding of the public health implications of the illegal action. Another seven reported that they were motivated by a sense of duty to bring criminals to justice. Finally, five out of 26 were fearful that they would be implicated in the fraudulent activity and believed that becoming a whistleblower would protect them.

Most whistleblowers became active participants in the litigation and shared common experiences such as wearing recording devices, retrieving documents, or taping conversations. Nearly all of those involved in the litigation perceived the workload as lengthy and intense; in this study, the cases took an average of 4.9 years from filing to closure. Additionally, many whistleblowers experienced frustration in dealing with the DOJ related to lack of communication and the slow-moving process of the investigation.

Nearly all of the whistleblowers experienced personal hardship as a result of their participation in the case. Eight experienced financial devastation and almost all of the insiders felt that they put their career on the line as a result of blowing the whistle. Half of all of the whistleblowers suffered stress-related health problems during the course of the litigation process.

"Qui tam actions are important tools to combat fraud that can lead to excessive health care spending, but whistleblower participation is an integral part of this legal process. DOJ investigators and others involved in the qui tam process should be aware of the hurdles and consequences that whistleblowers face. More resources, shortening the timeline for litigation, and reducing the stresses for whistleblowers would improve the possibility that others who notice fraud will step forward. Additionally, ensuring proportionate recovery and stricter regulation against retaliation for whistleblowers should be considered," said Kesselheim.

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