Marlan B. Wilbanks

In July 2011, Marlan B. Wilbanks pointed to a change in DaVita's treatment protocols that he believed supported his clients' fraud allegations. Medicare had changed its dialysis-payment system at the start of the year, ending separate reimbursement for discarded drugs, and the company's instructions for administering two medications had changed. Wilbanks argued that the timing showed how reimbursement, rather than medical need, had driven the earlier practices.

His clients, physician Alon Vainer and nurse Daniel Barbir, had filed suit in 2007. They alleged that DaVita deliberately created avoidable waste when administering Zemplar and Venofer, then billed federal health programs for the discarded medication. One example in the amended complaint involved filling a six-microgram Zemplar dose from a ten-microgram vial rather than three two-microgram vials, leaving four micrograms to be discarded and billed. Medicare permitted reimbursement for unavoidable waste incurred in good faith; the clients challenged protocols they alleged had been designed to produce unnecessary waste.

The government declined to intervene, and Wilbanks and his co-counsel continued the litigation privately. The case resolved for $450 million in 2015, then a record for a government-declined False Claims Act case. The Justice Department monitored the proceedings, while the private team developed the evidence and pursued the claims. Rulings obtained during the litigation were also cited in other whistleblower cases.

The Physician-Compensation Records

At Florida's Halifax Hospital, Elin Baklid-Kunz had raised concerns internally about physician payments and patient care before hiring Wilbanks to pursue a whistleblower case. She had worked at the hospital for sixteen years and was in its compliance department. Her allegations required examination of the contracts and compensation formulas connecting doctors' referrals to hospital revenue.

The government joined part of the case. Six oncologists received bonuses tied to a pool that included the value of drugs and tests they ordered, and three neurosurgeons were alleged to receive more than fair market value for their work. In November 2013, the court ruled that the oncology contracts violated the Stark Law's restrictions on physician self-referrals. The hospital agreed to pay $85 million in March 2014. Wilbanks later described Baklid-Kunz's decision as a matter of conscience, undertaken without any guarantee that it would work out.

Wilbanks served as counsel in matters contributing to Health Management Associates' $260 million resolution over admission practices, and represented relators in litigation associated with Tenet Healthcare's $368 million resolution over payments for maternity-patient referrals. His firm's work also includes a $65 million Prime Healthcare resolution. In preparing health-care claims, he examines compensation formulas, medically unnecessary services, admission standards and certifications made despite contrary internal information.

His firm has also recovered hundreds of millions of dollars in veterans'-mortgage cases over fees charged to military families refinancing their homes. The cases he and his firm have brought involving hospitals, dialysis, laboratories, hospice and other government-funded services have returned more than $2 billion to the United States Treasury.

Building a Private False Claims Act Practice

Wilbanks trained at the University of Georgia School of Law and was admitted to the Georgia bar in 1986. He developed a False Claims Act practice at Harmon, Smith, Bridges & Wilbanks in Atlanta, continued through Wilbanks & Bridges and co-founded Wilbanks & Gouinlock. Since his first qui tam filing in 1997, his practice has focused exclusively on fraud against the government.

The firm finances and staffs cases that may continue for years after federal investigators decline to take them over. Its lawyers study the governing regulations, retain experts and develop damages models from records identifying who authorized a practice, when and for what purpose. They carry that evidence through motion practice and discovery toward trial. Declination can reflect government resources, timing or enforcement priorities rather than a judgment that a claim lacks merit; the statute allows the whistleblower to proceed.

Taxpayers Against Fraud named Wilbanks a Whistleblower Lawyer of the Year in 2014 and gave him its Lifetime Achievement Award in 2022. He has spoken at more than seventy-five conferences, teaches False Claims Act courses at the University of Georgia and Georgia State law schools, and has pressed Justice Department leaders on enforcement of the statute. He chairs Georgia Law's Board of Visitors and serves as a trustee of Young Harris College.

Clients and Student Lawyers

Wilbanks's work for children has included chairing Hope Thrives, which serves survivors of child sexual abuse, and funding an orphanage and school in India reported in 2022 to serve one hundred children. At the University of Georgia School of Law, he established the Wilbanks Child Endangerment and Sexual Exploitation Clinic, the country's first law-school clinic dedicated to free representation of survivors of childhood sexual abuse and exploitation.

The clinic opened in January 2016, after Georgia's Hidden Predator Act expanded the opportunity to bring civil claims. His donation funded a place where second- and third-year students could represent clients who needed help using that opportunity. Students work on intake, discovery, drafting and courtroom representation in civil cases and juvenile dependency proceedings.