Medical device company Conceptus, Inc. is under fire in the U.S. District Court for the Southern District of Texas in Houston for firing a worker for complaining about a fellow salesman who was allegedly improperly enticing pharmaceutical clients.
Toby James, the whistleblower, took over Chris Orlaska’s accounts, another salesman at Conceptus. Quickly he discovered that Orlaska was allegedly improperly selling or giving away the devicemaker’s Essure kits and that some physicians were potentially illegally billing Medicaid for the free kits. After speaking with various nurses, James cross-referenced sales reports and asserts he found little data to back up the kits that were in their possession. James indicates he reported the incident to his manager, and ultimately his manager’s boss when no action had been taken. After a meeting with the boss, he says he was encouraged to email the head of human resources regarding the issue.
In a twist of events over a two-week period, James was fired and then sent a harsh letter from a lawyer that Conceptus hired. James maintains that he was protected from retaliation by the False Claims Act, Section 3730, part h, which encourages employees with knowledge of fraud to come forward by prohibiting retaliation against those employees. Section 3730 also includes the entitlement to relief for: “job reinstatement with the same seniority status such employee would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.”
The case will be an interesting one to watch unfold as pharmaceutical companies are already in a pressure-cooker situation with numerous reported fraudulent and unethical incidents plaguing the industry. Combine that with wrongdoers who have been accused of making illegitimate Medicaid claims, and it’s a toxic situation.
The Pharmaceutical Research and Manufacturers of America (PhRMA) established a code that outlines best practices for the pharmaceutical industry. “Pharmaceutical company representatives play an important role in delivering accurate, up-to-date information to healthcare professionals about the approved indications, benefits and risks of pharmaceutical therapies,” PhRMA stated in its “Code on Interactions with Healthcare Professionals”. “Company representatives must act with the highest degree of professionalism and integrity.”
Even Conceptus’ Code of Ethics from September 2010 says that, “If you know of or suspect a violation of the Code, feel uncomfortable about a situation or have any doubts about whether it is consistent with the Company’s high ethical standards, seek help.” Conceptus employees must sign an agreement whereby they acknowledge, “I am not aware of any unreported violations of the Code, and agree to report any violations or concerns in the manner described in the Code.”
Is there a double standard? Perhaps. But either way, Mr. James was very wise to seek an attorney to protect his rights.
Oftentimes, the best asset an employee has is independent legal counsel that can bring knowledge of all sides of employment law. Austin employment attorney and Austin whistleblower attorney Gregory D. Jordan has a wide range of experience in employment law and represents both employees and employers in vigorously upholding their rights. With more than 20 years of experience in employment litigation, Jordan has counseled on such topics as wrongful termination, retaliation, discrimination, harassment, whistleblowers, overtime and wage claims, and the Family and Medical Leave Act. To learn more, please go to http://www.theaustintriallawyer.com or call (512) 419-0684.