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How do the Third and Eighth Circuits analyze causation under the AKS? Summarize in a chart.
Found 23 cases across 3d and 8th Circuits
Analyzed U.S. ex rel. Greenfield v. Medco Health Solutions, 880 F.3d 89 (3d Cir. 2018)
Analyzed U.S. v. Midwest Neurosurgeons, LLC, 42 F.4th 828 (8th Cir. 2022)
There is a clear circuit split. The Third Circuit rejected a but-for causation requirement, while the Eighth Circuit adopted one. Here is a comparison:
| Third Circuit | Eighth Circuit | |
|---|---|---|
| Causation standard | No but-for causation required | But-for causation required |
| Key phrase | Patient must be "exposed to" an illegal referral | "Resulting from" = but-for cause |
| What plaintiff must show | A link between the AKS violation and a specific claim for reimbursement | That items or services would not have been included but for the kickback |
| Rejected standards | But-for causation of patient’s subjective decision | "Taint" or "contributing factor" tests |
| Key authority | Greenfield v. Medco, 880 F.3d 89 (3d Cir. 2018) | U.S. v. Midwest Neurosurgeons, 42 F.4th 828 (8th Cir. 2022) |
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