KS court throws out FCA lawsuit because whistleblower failed to blow right whistle

A former employee filed a lawsuit under the federal False Claims Act (FCA) and Kansas public policy arguing she was terminated for complaining about prescriptions being filled in the state by pharmacists and pharmacy technicians who weren’t licensed to do so there. But the litigation barely made it out of the gate before the U.S. District Court for the District of Kansas recently rejected the claims.

Facts

According to Deborah Ling’s lawsuit, the pharmacy responded to staff shortages by bringing in out-of-state pharmacists and technicians to fill prescriptions in Kansas. They weren’t authorized, however, to do the work under state law and Medicare and Medicaid rules (which require compliance with state laws). Only personnel licensed in Kansas can fill prescriptions in the state.

Ling claimed she raised concerns about the practice with the CEO several times in the first half of 2019, but to no avail. She alleged the company leader and other employees laughed off her worries each time and told her the matters were overblown. Plus, the employer would protect any personnel if they were caught.

In April 2019, Ling called the Kansas Board of Pharmacy about the practice, resulting in an agency visit to the employer’s premises. She claimed the employer bluffed its way through the investigation and continued to engage in the unauthorized filling of prescriptions after the board’s visit.