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
- 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 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
Third Time’s Not the Charm: Supreme Court Again Declines to Weigh in on Escobar’s “Materiality” Standard
March 25, 2019 | Blog | By Brian Dunphy, Nicole Henry
In Prather, the relator alleged that defendant Brookdale Senior Living Communities, Inc. (Brookdale), a home health provider, submitted bills for medical services that were “untimely” signed and certified by physicians in violation of Medicare regulations. When submitting Medicare claims, Brookdale purportedly did not obtain the required physician certifications attesting that the medical services provided by Brookdale were necessary until months after establishing a patient’s plan of care. Because Medicare regulations under 42 C.F.R. § 424.22(a)(2) require physician certifications “at the time the plan of care is established or as soon thereafter as possible,” the relator alleged that Brookdale’s untimely certifications rendered the claims false under the implied false certification theory. The district court dismissed the complaint on materiality grounds, holding that the noncompliance was insubstantial and that the relator failed to allege that the government had ever denied a claim based on a violation of the timing requirement under the Medicare regulations.
Health Care Enforcement Year in Review and 2019 Outlook: Civil Litigation Developments and Settlements
January 11, 2019 | Blog | By Brian Dunphy, Laurence Freedman, Karen Lovitch
Health Care Enforcement Year in Review & 2019 Outlook: New DOJ Policies Applicable to FCA Litigation
January 10, 2019 | Blog | By Brian Dunphy, Laurence Freedman
DOJ Announces to the Supreme Court That it Will Seek to Dismiss False Claims Act Case, and Affirms Position on Materiality Under Escobar
December 3, 2018 | Blog | By Brian Dunphy, Laurence Freedman
Tenth Circuit Revives FCA Claim Based on Alleged Lack of Medical Necessity
July 15, 2018 | Blog | By Brian Dunphy
Health Care Enforcement Year in Review and 2018 Outlook: Major Case Law Developments
January 3, 2018 | Blog | By Brian Dunphy
President’s Budget Blueprint Increases Funds For Health Care Fraud Enforcement
March 16, 2017 | Blog | By Brian Dunphy
Fourth Circuit Permits DOJ to Reject an FCA Settlement, But Punts Decision on Statistical Sampling
February 22, 2017 | Blog | By Brian Dunphy, Laurence Freedman
Health Care Enforcement Review and 2017 Outlook: Significant Health Care Fraud and Abuse Civil Settlements and Criminal Resolutions
January 10, 2017 | Blog | By Brian Dunphy, Karen Lovitch, Kevin McGinty
Recent Developments Around Pharmaceutical Drug Spending In Massachusetts
November 17, 2016 | Blog | By Brian Dunphy
News & Press
Twenty-Five Mintz Attorneys Named To Boston Magazine’s Top Lawyers List
November 21, 2023
Mintz Appoints New Health Care And Enforcement Defense Leadership
January 18, 2023
Twenty-Eight Mintz Attorneys Named To Boston Magazine’s Top Lawyers List
November 22, 2022
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
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