Potential whistleblowers understandably want to know first and foremost, “Do I have a case?” The following checklist is a non-exhaustive list of points and considerations that are commonly evaluated in making this determination.

Important: This checklist should never be substituted for the advice of an attorney, as the law is complex and changes frequently and the facts and circumstances of your particular case may warrant different or other consideration. You should always seek the advice of an attorney if you believe you may have a legal right or claim, including rights or claims as a whistleblower.

Does the fraud involve a government-funded program?

Examples of government-funded programs include, but are not limited to: Medicare, Medicaid, the Department of Defense, and research grants sponsored or supported by government funds.

Note: The states of Illinois and California have whistleblower laws addressing fraud committed against private insurers. If the fraud occurred in Illinois and/or California or affects citizens in these states, you may have a claim under these laws and should consult with an attorney knowledgeable with these laws.

Do you have personal and non-public information about the fraud?

Whether the whistleblower has personal and “non-public” information about the fraud is a complex legal and factual issue. At the simplest level, it means that you did not discover the fraud by reading about it in the newspaper or other public source, but rather, from your own personal observation or experience.

Do you have any documentation of the fraud or know of others who could collaborate your allegations?

Documentation of the fraud should consist of only those documents you have legal access to and access to in the ordinary course of your employment. Again, you should consult with an attorney on this issue before taking any action. Documentation is desirable, but not absolutely required in all cases.

Does the fraud involve a substantial amount of money?

While not a prerequisite to a claim, the amount of damages involved will be a factor in assessing whether it makes sense to pursue a claim.

Does the fraud negatively impact on patient safety or care?

While again not a prerequisite to a claim (and the majority of cases do not involve this), patient safety and care are primary concerns of the government prosecutors who will be reviewing your case.

There are many ways that fraud negatively impacts patient safety and care, including but not limited to: the provision of inadequate or worthless services, unnecessary testing or procedures, and the promotion of prescription drugs for uses that have not received FDA approval and have not been shown to be safe or effective.

Is the fraud intentional or the result of negligence?

Gross negligence or reckless disregard can sometimes serve as the basis of a claim, but intentional fraud and misconduct make the most compelling cases. Simple negligence is likely insufficient.

Did you initiate or participate in the fraud?

Whistleblowers who file a claim even though they initiated the fraud will be excluded from receiving any share of the government’s recovery. You may also find yourself the target of a government investigation.

“Initiation” of the fraud (i.e., planning and devising it) is quite different from “participation” in the fraud. Many potential whistleblowers are expected or required, as a condition or part of their employment to participate in the fraudulent conduct. Sometimes, the potential whistleblower does not even know they are being asked to do something that constitutes fraud, or at least are not aware of this initially.

Does the defendant have sufficient assets and ability to pay?

While fraud is often a profitable business and most defendants do have sufficient assets, if the fraud is small in scale or the defendant is in poor financial condition, it may not be worthwhile to pursue a claim as a whistleblower.

Are you coming forward for the right reasons?

Most whistleblowers do come forward for the right reasons, which include an interest in wanting to see a unethical situation corrected, perhaps guilt that they have knowledge of the fraud and generally, the desire to do the right thing.

Many whistleblowers come forward to report fraud after they have been fired or otherwise received some adverse employment action. This is not a wrong reason to come forward as long as the information is legitimate and you are not simply trying to get back at your former employer. This latter motivation, though understandable, will likely dissipate over the months and years that your suit is pending (and especially after you have found new and better employment) and you may wish you had made another choice.