Should You Blow The Whistle?

[This article originally appeared on CafePharma in July 2016, written by Joseph Gentile.]

The pharmaceutical industry is one of the world’s most innovative and socially beneficial industries. Every day, pharmaceutical companies and their employees literally save lives. This puts the industry in a tremendous position of trust and power. Unfortunately, this trust is sometimes abused.

Companies and their executives give in to temptation and resort to illegal and unethical business practices to increase profits and line their pockets at the expense of the public. Some common illegal practices in the pharmaceutical industry include off- label marketing, doctor kickbacks, fraudulent billing, clinical trial fraud, cutting corners on safety and quality controls, usual and customary charge violations. The list is limited only by the creativity of the offending executives.

For a few of us, this type of activity is occurring at our workplaces. Not a comfortable position to be in. This creates an ethical dilemma. Is it best to look the other way or to act? If we decide to act, what should we do?

Doing nothing may seem like the safest course of action. If we keep quiet, maybe our company is more profitable. Maybe our company will reward us with a promotion for not rocking the boat. Maybe the problem will go away on its own or another employee takes action. However, if nothing is done, the government and consumers will continue to be harmed. Patient safety could be at risk. We may diminish our sense of self by allowing an injustice to continue.

Taking some form of action has its risks as well. If we decide to act in some way, we could be marginalized at the office or even fired. We could be falsely accused of poor performance. We could be blackballed. On the other hand, we could potentially save lives. We could help stop the illegal behavior and assist the government in recovering money it was defrauded out of. If we blow the whistle, the government may share the recovery with us for our assistance. Our share could be millions of dollars. We could help in deterring this behavior in the future. While action has its risks, it clearly has great potential rewards as well.

The False Claims Act (FCA) provides the most powerful tool to take action. The FCA allows a whistleblower to report illegal activity to the government and, under certain conditions, share in any fines or recoveries that result. This is accomplished through a whistleblower or “Qui Tam” lawsuit.

The whistleblower’s share can be substantial. For example, some awards to whistleblowers in off- label marketing cases have exceeded $100 million. In recent years, the payout to whistleblowers has averaged $1.7 million in FCA cases.

The government understands that retaliation is a legitimate fear employees have when weighing the possibility of taking action. That’s why the FCA has specific anti-retaliation provisions which protect employees from being “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer” because the employee investigated, reported or sought to stop an employer from engaging in practices which defraud the federal government.
This is a complex area of law and the decisions you make in the face of illegal behavior, whether to act or not, will have a tremendous impact on your career and life. Given the weight and complexity of the dilemma, it’s prudent to consult with an attorney while contemplating a course of action.

This is a specialized area of law, so it is best to find an attorney with a high degree of familiarity and experience working with whistleblowers. Many attorneys take these cases on a contingency basis which means clients don’t pay any fees unless they are successful.

Personal and professional dilemmas like deciding whether to blow the whistle tell us a lot about ourselves and our character. How much do we value honesty, safety, self preservation, fairness? Did we make a decision we would be proud to tell our children about? If we are lucky, we get a few crucible moments in life where our true selves are revealed. This is one of them.