Obscure as they are, the Latin words "qui tam" have the entire health care industry eyeing what started as a run-of-the-mill federal court case in Florida that morphed into a constitutional challenge of the federal False Claims Act.
The "qui tam" provision in the Act empowers private citizens to sue government suppliers for fraudulent billing. Proponents say such private plaintiff whistleblowers are an essential mechanism against fraud. They brought 18,253 cases since 1986, bringing in $61 billion in settlements and judgments for the government. The law also gives the private plaintiffs 30% of the recovery sometimes.
Opponents say the law unconstitutionally delegates to un-appointed private bountyhunting citizens the federal executive authority to pursue cases.
Clarissa Zafirov, a doctor employed by central Florida physician practice Florida Medical Associates, says she witnessed her employer systematically inflate Medicare reimbursements by putting down false diagnosis codes. She brought a False Claims Act suit in 2019 against Florida Medical and others. Jason Mehta, the Foley & Lardner partner who is lead trial attorney for Florida Medical, says his client denies any wrongdoing and that Zafirov, in her brief employment, misunderstood what she was seeing.
The federal government, as called for by the False Claims Act, reviewed Zafirov's suit and passed on intervening, though that's not unusual.
What elevated the Zafirov case from ho-hum whistleblower suit to object of national scrutiny was a separate Supreme Court case decided in 2023 in which Justice Clarence Thomas, in a dissenting opinion, expressed doubts about the constitutionality of the "qui tam" provision and suggested the court should hear a case challenging it. Justices Amy Coney Barrett and Brett Kavanaugh submitted a concurring opinion that agreed with the outcome of the case but echoed Thomas's view that the court "should consider the competing arguments ... in an appropriate case."
That inspired Mehta and his co-counsel in federal court in Florida to file for dismissal on the grounds that the "qui tam" provision is unconstitutional. In 2024, U.S. District Judge Kathryn Kimball Mizelle in Tampa, who once clerked for Thomas, broke ground nationally by deeming the "qui tam" provision a violation of the Constitution's Appointment Clause and tossed Zafirov's case.
Zafirov and the Justice Department appealed to the 11th U.S. Circuit Court of Appeals, which heard arguments last year. The top firms in the field are all involved and industry players have weighed in with amicus briefs.
"The whole country is watching to see what the 11th Circuit decides," says Cary Aronovitz, a partner with Holland & Knight in Miami, who isn't involved in the case. Expect whoever loses to appeal to the U.S. Supreme Court.
Aronovitz says that regardless of the case outcome, companies should police themselves with a strong compliance program to prevent being hit with a whistleblower action.
Qui tam, by the way, is short in Latin for "in the king's name."
"For five years, Clarissa Zafirov has prosecuted various corporate entities on behalf of the United States, pursuing treble damages and other daunting monetary penalties for alleged harms to the public fisc. Zafirov has determined which defendants to sue, which theories to raise, which motions to file, and which evidence to obtain. ... Yet no one — not the President, not a department head and not a court of law — appointed Zafirov. ... Instead, relying on an idiosyncratic provision of the False Claims Act, Zafirov appointed herself." — U.S. District Judge Kathryn Kimball Mizelle