On Monday, the Sixth Circuit Court of Appeals affirmed the judgment on a False Claim Act retaliation claim on the grounds that the lawsuit had been filed five days too late. El-Khalil v. Oakwood Healthcare, Inc., No. 21-2669 (6th Cir. 1/10/22). The physician alleged that his employment agreement with the defendant hospital was not renewed because he had reported to the federal government false Medicare claims being filed by the hospital’s staff. He had appealed the denial of his staff privileges under the medical bylaws. The final step was made to a joint conference committee, which heard oral argument and, after he had left for the evening, voted to affirm the denial on September 22 and notified him in writing on September 27. He filed suit against the hospital three years later on September 27. The Hospital moved to dismiss on the grounds that his lawsuit was untimely. The courts agreed, finding that the decision had been made and verbally announced on September 22 – more than three years before he filed suit. According to the statute, 31 U.S.C. § 3730(h)(3): “Such an action ‘may not be brought more than 3 years after the date when the retaliation occurred.” Unlike other employment statutes, Congress did not create a discovery rule under the FCA retaliation provision based on when notice is provided. “The statute simply adopts “the standard rule” that the limitations period begins when the plaintiff “can file suit and obtain relief.”
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