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Whistleblowing: A Risk Beyond The Control Of Employers?

Two Philadelphia ophthalmologists filed a whistleblower lawsuit against a pharmaceutical manufacturer for illegally offering inducements to physicians who prescribed their products.

According to the lawsuit, a representative for the manufacturer offered business consulting and marketing assistance to physicians who "showed their appreciation" by prescribed the company's expensive dry eye treatment drugs. Another representative allegedly offered to enroll one of the ophthalmologists in the organization's speakers' bureau if she was a "really good writer of prescriptions."

The ophthalmologists filed the suit under the False Claims Act, which allows citizens to sue on behalf of the government when they have evidence that taxpayers have been defrauded. Because prescriptions cost the government billions each year through Medicare and Medicaid, the actions of the pharmaceutical manufacturer qualified as defrauding taxpayers.

The pharmaceutical manufacturer agreed to pay $13 million to settle the lawsuit. The ophthalmologists who filed the suit may claim up to 30 percent of the settlement amount. The rest will go to the federal government and the 19 states involved in the lawsuit. Chris Mondics "Allergan settles whistleblower lawsuit filed by two area doctors," www.philly.com (Jun. 30, 2017).


Commentary

The Securities and Exchange Commission, the Department of Justice, OSHA, and other federal and state authorities are advertising the success of their whistleblowing programs. Lawmakers are strengthening and expanding whistleblowing shield laws, and the public wants more.

All employers have a whistleblowing risk. Employers who do not put barriers in the way of employee reports of workplace wrongdoing will have a better opportunity to stop wrongdoing before it becomes a public matter.

Encourage reporting by creating and distributing a policy requiring employees to report wrongdoing when they have a reasonable suspicion that it has or is occurring. Provide alternate methods of reporting so that a whistleblower is not thwarted in his or her efforts to make the wrongdoing known to those who can interrupt and stop it.

Consider a third-party reporting mechanism to allow employees to report wrongdoing openly and without fear. During training, confirm that employees know how to report any incidents and, if possible, introduce them to the person to whom they can report.

Allow for anonymous reporting so long as the reporting mechanism makes it clear that deliberately false or fraudulent reports are not tolerated and that the reporter needs to give enough information for an investigation to begin. An anonymous report like, “There is something illegal going on at this location” is not likely to trigger an investigation. Make certain that any employee who makes a good faith report of wrongdoing is protected from retaliation for making the report, and let employees know that they will be protected.

If an employee reports wrongdoing, immediately investigate the situation to stop any further violations. Have an anti-retaliation policy in place that prohibits all forms of retaliation against those who report wrongdoing.

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