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Retaliation claim in whistleblower suit reinstated on appeal

Retaliation claim in whistleblower suit reinstated on appeal

A federal appeals court has upheld dismissal of a terminated nursing home employee’s whistleblower claim, because he had not been the first to file suit, but reinstated his retaliation claim.

Christine A. Rubik filed a whistleblower suit in January 2009 and was followed by Patrick Gerard Carson’s lawsuit in September 2011, both of which charged Toledo, Ohio-based Manor Care Inc. with violating the False Claims Act in connection with billing at its nursing facilities, according to Thursday’s ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, in United States of America ex rel. Patrick Gerard Carson and United States of America ex rel. Christine A. Ribik v. Manor Care Inc. et al.

Mr. Carson’s lawsuit also charged he had been terminated in November 2009 for making repeated complaints about Manor Care’s alleged fraudulent billing practices.

Ms. Ribik’s and Mr. Carson’s cases were consolidated in June 2012, and a third case was added in November 2014, according to the ruling. The federal government joined in the suit in December 2014.

Manor Care then filed a motion to dismiss Mr. Carson’s entire complaint, which the U.S. District Court in Alexandria, Virginia, granted on the basis that the False Claims Act’s “first-to-file rule” barred his claims.

A three-judge appeals court panel upheld dismissal of Mr. Carson’s whistleblower complaint, but reinstated his retaliation complaint. 

“Carson’s complaints are essentially the same” as those filed in Ms. Ribik’s earlier complaint said the ruling, in upholding dismissal of Mr. Carson’s whistleblower complaint.

“However, the first-to-file rule has no relation to a claim for retaliation,” said the panel. “It would not make sense to allow only the person who wins the race to the courthouse on the (whistleblower) claim to have a cause for retaliation rather than the victim of that retaliation,” said the ruling. 

“This is contrary to the purpose of the (False Claims Act) to encourage private citizens to act as whistleblowers when they suspect fraudulent complaints,” said the ruling, in reinstating Mr. Carson’s retaliation claim and remanding the case for further proceedings.


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