Eleventh Circuit Makes It "Objectively" More Difficult for Relators and the Government to Prove Falsity in AseraCare

Introduction

Anyone familiar with the False Claims Act (FCA) knows that the Eleventh Circuit imposes demanding requirements upon FCA from the outset of the case.¹ But the court’s recent AseraCare decision extends that high bar to proof at trial, making clear that a plaintiff must show an objective falsehood for the purposes of proving falsity in cases involving a physician’s clinical judgment.  As the Eleventh Circuit stated, “a reasonable difference of opinion among physicians reviewing medical documentation ex post is not sufficient on its own to suggest that those judgments – or any claims based on them – are false under the FCA.”²