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Brian P. Dunphy
Member / Co-Chair, Health Care Enforcement Defense Practice
+1.617.348.1810
Brian is a health care litigator and Co-Chair of the Health Care Enforcement Defense Group. Brian is a trusted advisor for clients, and he defends clients facing government investigations and whistleblower complaints regarding alleged violations of the federal False Claims Act (FCA) and similar state laws. Brian also handles commercial litigation involving business disputes for health care, life sciences, and biotechnology companies. He defends national product liability cases for pharmaceutical and biotech companies.
Brian advises and counsels health care providers, health plans, Medicare Advantage plans, biotechnology and life sciences companies, and clinical laboratories. He represents them in government investigations, in litigation, at trial, and in arbitration.
In particular, Brian defends companies against government investigations of alleged violations of the FCA and the Anti-Kickback Statute (AKS). He conducts internal investigations and litigates qui tam FCA cases in federal courts around the country. Brian is well-versed in health care regulatory requirements, including in Medicare Advantage and risk adjustment. Brian also represents health plans, biotechnology, life sciences, health care, and technology companies in complex business disputes.
Brian is committed to pro bono work and is a member of the firm’s Pro Bono Committee. He obtained political asylum for a client who was tortured in the Democratic Republic of the Congo, and he secured a residential educational placement for a disabled student. Brian has spent more than a decade advising a non-profit organization dedicated to advancing the study, treatment, and prevention of the effects of concussions and other brain trauma in athletes and other at-risk groups.
Brian is also deeply involved in the Boston community as a member of the Board of Advisors for Life Science Cares, and the Boards of Directors of the Concussion Legacy Foundation and the Volunteers Lawyers Project. He was also a Member of the Boston College Law School Alumni Board.
Before attending law school, Brian was a project manager at Accenture, a management and technology consulting firm, where he provided project management and consulting services. Brian developed project plans and budgets, managed teams to meet project milestones, and worked with client executives to ensure projects met business objectives. He continues to utilize his project management skills working with his clients to manage matters effectively and to deliver timely results.
Brian is a health care litigator and Co-Chair of the Health Care Enforcement Defense Group. Brian is a trusted advisor for clients, and he defends clients facing government investigations and whistleblower complaints regarding alleged violations of the federal False Claims Act (FCA) and similar state laws. Brian also handles commercial litigation involving business disputes for health care, life sciences, and biotechnology companies. He defends national product liability cases for pharmaceutical and biotech companies.
Experience
- Defended numerous clients, including laboratories, health plans, and Medicare Advantage plans, in government FCA investigations and FCA litigation in jurisdictions around the country.
- Represented a pharmaceutical firm, laboratory, and several executives in an FCA lawsuit in federal court, and the court dismissed relator’s complaint three times
- Obtained dismissal of a whistleblower’s state and federal FCA claims against a vendor to Medicare Advantage plans. Argued the appeal in the Second Circuit Court of Appeals, which affirmed the district court’s decision
- Obtained a favorable resolution of an FCA case against a Medicare Advantage Organization before litigation
- Obtained summary judgment in nine related cases against a publicly traded biotechnology company and a pharmaceutical company in multi-jurisdictional product liability disputes involving an FDA-approved pharmaceutical drug
- Represented construction companies in a state Attorney General’s false claims act investigation related to a construction project
- Obtained dismissal of a whistleblower’s state and federal FCA claims against a Pharmacy Benefit Manager in federal court, and the Third Circuit Court of Appeals upheld the district court’s decision in our client’s favor
- Represented a health insurance company in an FCA lawsuit in federal court where relator alleged an industry wide drug-pricing scheme. The court dismissed the case
- Defended companies against FCA retaliation claims before litigation, in litigation, and at trial
- Obtained a defense verdict as trial counsel after a week-long federal court jury trial. Plaintiff, a former distributor of our client’s next-generation DNA sequencing machines, filed an 18-count, $100 million complaint against our client
- Achieved victory in an arbitration for an international life sciences company initiated by one of the company’s suppliers. After an evidentiary hearing, a panel of arbitrators rejected the supplier’s claims and entered judgment for our client on its counterclaim, including recovery of our client’s attorneys’ fees and costs
- Represented a life sciences company before the International Court of Arbitration of the International Chamber of Commerce in a breach of contract dispute involving the manufacture of diagnostic assays
- Successfully defended a physician before an Administrative Law Judge against an action by the Massachusetts Board of Registration in Medicine to revoke or suspend the physician’s license
- Conducted an internal investigation of a health care provider and prepared a self-disclosure to the U.S. Department of Health and Human Services, Office of Inspector General (OIG)
- Successfully opposed the OIG’s proposed exclusions of a physician from federal health care programs
viewpoints
DOJ Announces it is Designing a Whistleblower Rewards Program
March 18, 2024 | Blog | By Eoin Beirne, Karen Lovitch, Brian Dunphy, Nick A. LaPalme
In early March 2024 at the American Bar Association’s 39th National Institute on White Collar Crime, Deputy Attorney General (DAG) Lisa Monaco’s keynote remarks previewed the development of new and significant Department of Justice (DOJ or the Department) policy initiatives. Her speech reemphasized many of DOJ’s key themes throughout the current administration, including individual accountability, the importance of strong corporate compliance programs, incentivizing voluntary self-disclosure of misconduct, and adapting to keep up with disruptive technologies such as artificial intelligence.
EnforceMintz — Artificial Intelligence and False Claims Act Enforcement
February 8, 2024 | Blog | By Brian Dunphy, Samantha Kingsbury
Health care companies using algorithms and AI applications face increased compliance risks. Previous technology-related enforcement suggests how relators and enforcement agencies might use AI to detect potential fraud and develop allegations based on how the technology is being used.
EnforceMintz — Government Scrutiny of Medicare Advantage Organizations Expected to Continue in 2024
February 8, 2024 | Blog | By Brian Dunphy, Nicole Henry
Enforcement against Medicare Advantage Organizations continues to be a top priority for the DOJ and HHS’s Office of Inspector General as the number of Medicare Advantage enrollees continued to rise in 2023.
EnforceMintz — A 2023 Legislative Push to Address AI in Health Care Will Continue in 2024
February 8, 2024 | Blog | By Daniel Cody, Brian Dunphy, Samantha Kingsbury
Since May 2023, federal legislators have introduced more than 50 bills focused on issues related to AI technologies, with patient privacy, the role of clinicians, and health equity emerging as areas of focus. In addition, the Biden administration released an Executive Order focused on promoting AI safety in October 2023.
Courts Continue to Grapple with the Causation Standard for False Claims Act Suits Based on Alleged Kickback Schemes, While the Supreme Court Stays on the Sidelines
October 5, 2023 | Blog | By Brian Dunphy, Grady Campion, Melody Mathewson
A recent Massachusetts Federal District Court decision adds to divergent opinions deciding an important health care enforcement question: what causation standard applies to a False Claims Act (FCA) case based on a violation of the Anti-Kickback Statute (AKS)? The AKS states that a claim that includes items or services “resulting from” a violation of the AKS constitutes a “false or fraudulent claim” under the FCA. 42 U.S.C. § 1320a-7b(g). On September 27, 2023, Chief Judge Saylor of the District of Massachusetts issued a decision in United States v. Regeneron Pharmaceuticals, Inc., C.A No. 20-11217-FDS, which adopted a “but-for” standard of causation applicable to the AKS’s “resulting from” language.
Health Law Diagnosed – EnforceMintz – Part 2: DOJ Regulatory and Policy Update
April 25, 2023 | Podcast | By Bridgette Keller, Eoin Beirne, Karen Lovitch, Brian Dunphy
In this episode, Health Care Enforcement Defense specialists Eoin Beirne, Karen Lovitch, and Brian Dunphy discuss key regulatory and policy updates issued by the DOJ and their potential impact on False Claims Act cases, from self-disclosure to privacy regulations.
Health Law Diagnosed – EnforceMintz: Analyzing Health Care False Claims Act Cases
April 18, 2023 | Podcast | By Bridgette Keller, Karen Lovitch, Brian Dunphy, Eoin Beirne
Bridgette Keller speaks with Karen Lovitch, Brian Dunphy, and Eoin Beirne about the Mintz Health Care Enforcement Defense Practice’s recent edition of the EnforceMintz newsletter, Analyzing Health Care False Claims Act Cases, and key health care enforcement trends.
The Sixth Circuit Adopts Narrow Interpretations of “Causation” and “Remuneration” for False Claims Act Suits Based on Alleged Kickback Schemes
April 6, 2023 | Blog | By Brian Dunphy, Grady Campion
EnforceMintz: False Claims Act Statistical Year in Review — A Study in Contrasts
February 27, 2023 | Article | By Kevin McGinty
Mintz's Health Care Enforcement group analyzes trends in False Claims Act (FCA) investigations and lawsuits using data compiled its Qui Tam Database, the Department of Justice's (DOJ) annual report of FCA statistics, and the DOJ’s discussion of FCA enforcement trends.
EnforceMintz — Medicare Advantage Remains a Top Enforcement Priority
February 9, 2023 | Blog | By Brian Dunphy
Medicare Advantage (Medicare Part C) remained a top enforcement priority in 2022, and Medicare Advantage Organizations (MAOs) are the subject of intense scrutiny by the Department of Justice (DOJ); the Office of Inspector General for the Department of Health and Human Services (HHS OIG); and the press. MAOs undoubtedly will continue to face considerable enforcement in 2023 and beyond, particularly as Medicare Advantage continues to grow in both number of enrollees and in federal spending. As of January 31, 2023, more than 30 million people are enrolled in MAOs—nearly half of all Medicare enrollees.
News & Press
Twenty-Five Mintz Attorneys Named To Boston Magazine’s Top Lawyers List
November 21, 2023
BOSTON – Twenty-five Mintz attorneys have been named to Boston Magazine’s Top Lawyers list.
Mintz Appoints New Health Care And Enforcement Defense Leadership
January 18, 2023
BOSTON – Mintz has appointed Brian Dunphy as Co-Chair of the firm’s Health Care Enforcement Defense Group with immediate effect. Brian joins Karen Lovitch, who also serves as Chair of the Health Law Practice, in joint leadership.
Twenty-Eight Mintz Attorneys Named To Boston Magazine’s Top Lawyers List
November 22, 2022
In its second annual edition, 28 Mintz attorneys were named to Boston Magazine’s Top Lawyers list.
Legal Risks of Employer-Sponsored Covid-19 Workplace Vaccination Clinics
February 12, 2021
2019 Trends In DOJ Civil Health Care Fraud Cases
January 15, 2020
2017 Health Care Enforcement Review: FCA Case Law
January 17, 2018
Mintz Promotes Five Attorneys to Member
May 26, 2017
Health Care Enforcement Review And 2017 Outlook: Part 4
January 19, 2017
Eighty-Four Mintz Attorneys Named 2016 Massachusetts Super Lawyers and Rising Stars
October 18, 2016
The Medicare Overpayment Rule: Implications for Compliance and Health Care Enforcement
February 26, 2016
CMS Relaxes 60-Day Overpayment Rule Requirements: 5 Things to Know
February 11, 2016
Events & Speaking
Received COVID-19 Funding? How to Mitigate and Respond to Enforcement Risks and Government Actions
View the Webinar Recording
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Brian is a health care litigator and Co-Chair of the Health Care Enforcement Defense Group. Brian is a trusted advisor for clients, and he defends clients facing government investigations and whistleblower complaints regarding alleged violations of the federal False Claims Act (FCA) and similar state laws. Brian also handles commercial litigation involving business disputes for health care, life sciences, and biotechnology companies. He defends national product liability cases for pharmaceutical and biotech companies.
Recognition & Awards
Boston Magazine Top Lawyers – Health Care Law (2022-2023)
Volunteer Lawyers Project: 2019 Denis Maguire Award
Included on the Massachusetts Super Lawyers Rising Star Health Care list
Greater Boston Chamber of Commerce, Boston Future Leaders Program
Boston Bar Association Public Interest Leadership Program
Brian is a health care litigator and Co-Chair of the Health Care Enforcement Defense Group. Brian is a trusted advisor for clients, and he defends clients facing government investigations and whistleblower complaints regarding alleged violations of the federal False Claims Act (FCA) and similar state laws. Brian also handles commercial litigation involving business disputes for health care, life sciences, and biotechnology companies. He defends national product liability cases for pharmaceutical and biotech companies.
Involvement
- Board of Advisors, Life Science Cares
- Board of Directors, Volunteer Lawyers Project of the Boston Bar Association
- Board of Directors, Concussion Legacy Foundation
- Alumni Board Member, Boston College Law School
- Member, Boston Bar Association
- Member, Massachusetts Bar Association
- Member, American Bar Association
- Member, American Health Lawyers Association
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