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David Barbetta Interview

Posted  May 1, 2017

David Barbetta, the whistleblower in the DaVita case, was represented by Eric Havian and Jessica Moore.

1. Please tell me a bit about your background. Is there something unique about you or your background that made it more likely that you would someday come forward as a whistleblower?

I grew up in Syracuse, New York and studied engineering and business in college. I had a number of different jobs before landing at DaVita, from software development to financial analysis.

I have to thank my parents for instilling in me the values that drove my decision to become a whistleblower: that there is some higher ideal we are living for, and taking an action for the greater good is one of the highest moral choices (even when — no, especially when — that action could be detrimental to one’s own self-interest).

2. Please give a brief summary of the allegations and information you brought to light.

People want their caregivers to make the best decisions for their health, and there are many laws to restrict other factors (such as financial profits) from influencing health care decisions. My case focused on one of the many areas where patient care and financial incentives can be in conflict.

Here is one general example that illustrates the allegations in my case: If a doctor owned 10% of a DaVita-branded dialysis center, then the doctor should receive 10% of the profits. We alleged that even though a doctor contributed an amount that was only 10% of the value of the center, DaVita was paying the doctor 30% or more of the profits. This makes no sense from a business standpoint. Why would someone who owned 90% of a business give the other owner any more than their 10% share of the profits? They wouldn’t… unless they were getting something else in return. Our case alleged that DaVita paid doctors tens of millions of dollars more than it should have, and in exchange the doctors would refer nearly all of their patients to DaVita’s centers, regardless of whether those patients would receive the best care at DaVita (versus at a not-for-profit dialysis center, for example).

I brought a substantial amount of information to light in my case. I provided spreadsheets and emails to the government which supported the allegations. I helped as the government lawyers achieved a level of expertise with the financial concepts to be able to successfully argue the case in court. I informed the government which documents might be highly relevant, and where to find them. I helped the government understand the company’s organizational structure, who worked in what positions, and who participated in (or would know information about) which transactions. I worked almost 5,000 hours over five years to help the government be as prepared as possible to prosecute the case.

3. Was there a particular moment when you realized you had to speak up, or had you been considering it for a long time? What was it that pushed you over the edge and made you realize that you needed to speak up? What happened when you spoke up?

It took me a while to decide what to do. I thought speaking up was likely to be career suicide, so I didn’t want to move forward unless I felt confident about the allegations. What pushed me over the edge was how two-faced the company seemed to me. Externally, the company gave the impression that patient care was its primary concern. But behind closed doors, the focus was on ever-increasing profits, often, I felt, at the expense of better patient care. I found DaVita’s two-faced communications to be disgusting.

I originally thought about how to stop the activity by reporting it internally. I approached the subject with a few people in management, and none of those conversations went well (one executive told me not to “give [him] any of that ethics nonsense”). Ultimately, I felt that the Compliance Department’s purpose was NOT to prevent fraud, but rather to minimize liability to the company. And I didn’t want to give the company a head start on the government in preparing to defend (or cover up) what it had done.

When I spoke up, I found a job at another company, so I was fortunate to not be at the company while the government was prosecuting the case.

4. What was on your mind when you contemplated blowing the whistle? What were your hopes and concerns?

I hoped that the company would be held accountable for its behavior, and that it would not engage in abusive transactions in the future.

I worried about my career and my future. I worried about the company hiring high-priced lawyers and finding some way to slither out of a guilty verdict. I worried about being murdered. It was a lot to risk. The decision about what to do was a crossroads, and there would be no turning back.

5. What prompted you to reach out to law firm(s)?

I didn’t trust the company’s internal compliance and legal departments to do anything other than what would maximize profits for shareholders. So I thought working through internal channels would go very poorly. I initially viewed the situation as an employment dispute: I thought my employer was breaking the law, and I wanted it to stop. I wasn’t trying to get rich, so I didn’t initially plan to use the False Claims Act. While meeting with lawyers, I realized that the False Claims Act was possibly the best option to provide the protections I was looking for (not being fired, not being sued, having the allegations be taken seriously, etc).

6. What was it like to bring your information to the government? How did it feel to have the government investigate and take over your matter?

The first time you meet with the government, if there is any question about the gravity of the situation, it will disappear immediately. I walked into a federal building with my two lawyers (Eric Havian & Jessica Moore), and on the other side of the table at the meeting was a panel of federal prosecutors, FBI agents, agents from HHS’s Office of the Inspector General, and others.

It felt very good to have the government aggressively pursue the allegations, and in my case I was happy that they had enough trust in me to invite me to assist and contribute my knowledge and effort along the way. In my case, I’d say all 3 legs of the triangle (the government, the whistleblower, and the private attorneys) were firing on all cylinders. The people the government assigned to my case — Edwin Winstead, Jaime Pena, John Henebery, and Chris Larson, among others — were highly capable, and I was thankful such a strong group was assigned to the case.

One thing to be aware of, is that whether you are held at arm’s length during the process, or the government invites you to assist by contributing additional knowledge and effort, you will feel like you have limited or no control over the outcome. The prosecutors, agents, and judges you draw will all influence the outcome. The district where you choose to or are required to file will influence the outcome. The law itself and past legal precedents — developed by great men and women who came before you ever found yourself in the horrible situation of having to turn your company in to authorities — will influence the outcome. This is something you will have to come to terms with, but still perform your best within those constraints.

7. Could you tell us a little about your experience working with your legal team?

I couldn’t have been much happier with my legal team. Eric Havian and Jessica Moore were not only highly talented, but they demonstrated a desire to advocate for “what should be” even if it wasn’t in their financial interest — which is as good a definition of integrity as I’ve ever heard.

Although the experience of being a whistleblower is often miserable (filled with fear, risk, and stress), there were times when countering DaVita’s weak defense arguments was downright fun. If I could do it again, I would not have chosen different lawyers nor wished for different government investigators.

8. At what point did your identity become known to them, or to the public? Please describe the experience of going public.Did you experience any backlash? How did you handle that?

I think the company figured out I was the whistleblower about a year after I filed my case, although they weren’t officially informed of my identity until more than a year after that. I also had left the company, so I no longer worked there while the government was investigating. Those factors minimized any opportunity for backlash (although I did worry about my personal safety).

During the case, people inside the company who I maintained friendships with stopped replying to my calls and emails. In terms of the company’s posture toward me during and after my case, it was professional. The company did not try to claim I was just a disgruntled employee, or try any of the other common character attacks defense attorneys often use. I had a strong reputation inside the company, so the company’s approach was simply to argue that it disagreed with my allegations.

As for the public, my case remained under court seal for years, and was unsealed on the same day it was settled, so there wasn’t a period in between the two where I was exposed to the additional vulnerability of having to carry the “whistleblower” label without knowing how the case would end. Because of this timing, the experience of going public was the experience of celebrating what to me was a victory in a battle that no one knew I was engaged in, so at the same time I was free to describe to them the battle I had been fighting, I also was able to share the news that we had won. I was interviewed by three major newspapers, who wrote articles. And I had preliminary conversations with two television programs, but I was fairly camera shy — I wasn’t looking for fame, I just wanted to do the right thing for the right reasons.

9. Once your case resolved, have you spoken of your experience publicly (speeches, conferences, panels, etc.)? Please describe this experience.

In addition to the newspaper interviews, I was on a panel at the Taxpayers Against Fraud conference in Washington, D.C. It was good to share my story, and also what advice I would have for other attorneys. Because of the federal court seal and prohibition on discussing the case, your attorney can end up being both your lawyer and in a way your psychologist.

10. Can you share how your whistleblower journey affected your personal and family life?

Being a whistleblower was an incredibly difficult journey. And seeing all that hard work pay off was an incredible experience. It was an honor to be in a position where I could give my parents money to help them retire, and I was happy to make gifts to my siblings as well. I also used a large portion of the money I was awarded to start a charitable foundation. It is fulfilling work to be able to make a difference in areas I am passionate about. Since my case ended, the principle I aspire to live up to now is “to whom much is given, much is expected.”

11. Would you do it again? Would you do anything differently?

Yes, I would do it again. I think everyone is trying to find some ideal to aspire to in life, to make choices based upon an ethic or an idea of “what should be.” There are a handful of moments in your life where you have to make such an incredibly hard decision. It’s those decisions that make you who you are. I’m proud to have made the choice I did, and I would do it again. But that’s easy for me to say, since we won. It is not lost on me that the overwhelming majority of False Claims Act cases fail, so I have gratitude in the outcome we achieved.

12. Do you feel you helped to right a wrong?

I do. I am glad the company has agreed not to engage in that type of joint venture transaction in the future. That said, I also recognize this is just one branch of a huge root problem: that in the U.S. we accept a comingling of interests for (1) providing quality healthcare and (2) maximizing profits. These two are often at odds with each other, so I expect new forms of fraud to continue being invented, and past forms to morph into slightly different schemes for the benefit of corporate profits at the expense of patient care.

I also wish individual people (the CEO and Chief Development Officer) had been held accountable. But it’s almost impossible you will get everything you want, even when you win. I feel like I righted a wrong, and am encouraged by the move toward personal accountability that is underway for whistleblower cases in general.

13. Based on your experience, is there any advice you would like to share for potential whistleblowers that may be unsure of what they should do?

Being a whistleblower can be isolating, difficult, and even dangerous. It takes a person who has strong convictions about what is right and wrong. And it takes a tremendous amount of time, determination, and resilience. But if you choose good attorneys, work hard, and keep a level head, you can feel an enormous sense of accomplishment at the end if the case is successful. Being a whistleblower is about doing the right thing for the right reasons, so my primary piece of advice would be: If you’re doing it for the money, don’t do it.