Whistleblower Blawg

Breaking with the trend of Appellate Courts that just say no to pro se relators, the Tenth Circuit ruled on the merits of a pro se qui tam appeal.  In Brown v. Sherrod, 2008 U.S. Lexis 17438 (10th Cir. July 7, 2008), the unanimous Court rejected the pro se plaintiff’s appeal that the lower court did not have the power to dismiss his frivolous claims without the consent of the Attorney General of the United States.  The Court found the language of 31 U.S.C. sec. 3730(d) only applies to a voluntary dismissal. 

The 10th Circuit was faced with a clear cut question recently–whether general liability policies trigger a duty to defend FCA claims.  In Zurich American Ins. Co. v. O’Hara Regional Center for Rehabilitation, 529 F.3d 916, 918 (10th Cir. 2008), the Court unequivocally held “that the applicable insurance policies do not cover these types of claims.” 

While the government purusued an FCA claim in federal court, three insurance companies filed declaratory judgment suits concerning the above question.  The district court granted summary judgment that the professional services portion of the insurance contracts do not cover FCA claims.  O’hara claimed that it negligently failed to provide professionally adequate nursing or medical services or, alternately, tht the billing practices were professional services.  The Court distinguished the inadequate staffing issue from the misleading of the government in billing documents that it was providing adequate staffing.  As to the alternate claim, the Court found “[a]lthough processing Medicare and Medicaid claims may be difficult and time consuming, the activity does not characterize a ‘professional service.’”