Fall 2006
Volume 3, Number 1
Table of Contents

How To Get The Most Out Of Your Health Care Expert Witness

By Sue Antoni

In the complex world of health care litigation, identifying and engaging the most appropriate expert witness can often be a taxing process, but maximizing the value of that expert once found can be equally challenging. Your expert can be helpful beyond just providing formal opinions and testimony. In fact, the expert can provide you with greater insight regarding the data available, its practical implications and the complexities of the issues at hand, which can significantly and positively impact a case. The litigator's efforts may be considerably enhanced and the clients' interests advanced as a result.

Although the skill level, years of experience and credentials of your experts may be unmistakably well-suited for the dispute, giving them the tools to adequately contribute to your victory is a collaborative effort. Where appropriate, taking advantage of the technical knowledge of the experts can aid you by allowing them to have an active role in structuring your case by fully identifying what really happened. As discussed in greater detail below, the complexity of day-to-day operations in the health care industry makes it such that there often can be a significant difference between strict legal appearances and understanding what really took place. Understanding this can make all the difference.

Indeed, different cases require different approaches from the outset, and where an expert might have the greatest impact in one case, he or she might not offer much more than the ability for the lawyer to say, "Because an expert said so," in another. So then, when can an expert provide that additional advantage and what does it take to get there? Certainly, since the type of dispute and nature of the complaint determine the kind of expert sought and the work that will be involved, examples can be given of the types of cases where these unique advantages would be most applicable. Some of these are shared below.

Billing and/or Compliance Disputes

Typically, cases involving billing and compliance issues ultimately are a matter of over- or under-reimbursed providers. These disputes often require experts who have knowledge in areas of coding, billing systems, industry standards for practice management, and government and commercial billing regulations. This type of expert is often certified as a compliance professional and/or coder and will have enough years of experience to understand the changes that have taken place in the industry to give context to the rules that applied at the relevant time period.

This kind of litigation often includes expert analysis of claims. Based on the frequency of changing regulations and technical detail surrounding coding and claims processing, early involvement for the expert is key. The variables each claim represents, such as procedure codes, diagnoses codes, the type of coverage, the condition of the patient, the date of service and a review of the regulations in effect during the time the services were provided, require a sufficient amount of time for useful analysis. Each detail can potentially change the outcome of the expected reimbursement and, thus, the outcome of a major component in the case.

In addition to having the appropriate amount of time to review claims data to achieve an initial set of objectives, early involvement by the expert may result in findings that strengthen the ability to explore new information that will be beneficial to your argument. Additional damages may be sought or a stronger defensive position may be established if patterns of billing or reimbursement exist that were not known prior to the expert's review.

For example, if your expert is being asked to opine on the accuracy of CPT, or current procedural terminology, coding, but in the process discovers other issues such as inappropriate reporting of secondary insurance coverage as primary coverage, issues related to diagnoses coding, failure to refund credit balances or inappropriate balance billing to patients for services that were not allowed, these newly found items may have a significant impact on the case.

Beyond the technical coding and compliance knowledge, an expert may have knowledge regarding the use of specific, commercial health care billing software programs and different versions of these systems that have been used in years past. Accessing this knowledge may shed light on the capabilities or shortcomings of a billing system that has controlled all claims processing and data management during the years in question. The system-related claims processing that occurs in 2006 might not have been possible in 2004 under the then-existing version of the billing software. If learned early enough, this information will add a new element to the case that was not previously considered.

Payer/Provider Contract Disputes

Experts retained for these cases should have skills and experience in a variety of settings with managed care contracting, capitation, rate development and managed care contract administration from both the payer's and provider's perspective. Although contract interpretation is anything but foreign to most attorneys, a qualified expert with the requisite skills in managed care and other payer/provider agreements has negotiated, amended, implemented and experienced the corporate consequences of contracts they have managed. This "practical" experience can be substantially different than legal experience in the review of such contracts and in understanding the implications of their provisions as they actually occur day to day.

The most important tools to provide this expert with are all written material pertaining to the contracts in question, including older/amended versions of the contract, footnotes, attachments, and any correspondence or other written material that would alter the agreement(s) in any way (i.e., letters of intent, relevant notices to patients, claims information, remittance advice, etc.). Where some information may seem immaterial, it is too often the case that a simple footnote to an attachment can have the greatest impact.

As an example, consider a hospital that has a contract that includes carve-outs for cardiac-related care, but the contractual language is ambiguous regarding certain non-invasive tests. The expert's opinion on industry standards regarding the contractual terms based on his or her review of contract documents can be coupled with his or her review of the payer's remittance advice where there may be information embedded in payments that have historically been received and that would clarify the initial intent of the contract (or at least how it was implemented). Allowing participation of the expert in the discovery process such that he or she can clearly define all information that is needed to maximize use of his or her technical skills can frequently prove advantageous for these cases.

Valuation/Fair-Market-Value Lawsuits

The world of acquisitions and joint ventures opens the door to a variety of disputes involving the appropriateness and accuracy of valuation methods. Although many individuals in the industry claim to have expertise, they may actually only be just that: an "industry expert." There may be a significant difference between an expert who has finance expertise with some valuation experience, and one who has completed valuations for numerous and varied health care entities, for-profit and not-for-profit, for a range of engagements (e.g., mergers, acquisitions, divestitures, compensation agreements, etc.) and applying all the pertinent technical valuation methodologies. With the latter being the preference, there is a short list of these experts in our industry, and most know each other.

A valuation expert may be asked to focus on a specific set of data; however, there also may be a window of opportunity to access the knowledge he or she has of an opposing expert's reputation, strengths, weaknesses and tendencies for valuation methodology. Exploring this with your expert may unveil inconsistencies and errors from the opposition's expert that shed a brand-new light on your case.

Criminal Litigation

In criminal matters, the level of independent review from the expert will likely be less than what would be wanted in a civil matter. An expert who has had experience in criminal litigation will often be more familiar with the expectations of the attorney. In contrast, an expert who has only worked on civil matters in cases where they have been given carte blanche to introduce new issues might not fully appreciate the need to avoid deviating from the attorney's specific instructions. This certainly is not to imply that evidence should be concealed. Rather, it is to emphasize that many people who qualify as experts are more than willing (and all too often actually excited) to share every possible lapse in compliance that they can unveil to highlight the breadth of their knowledge.

An additional advantage to using an experienced expert is the exposure to the legal process for criminal matters, which immediately gives the expert context to the nature of your request for their services. For example, in cases involving fraud and abuse, the experienced expert will likely understand the relationship between the total dollars paid based on fraudulent claims and the sentencing that may follow if the defendant is found guilty.

A clear definition given by the attorney at the beginning of the case regarding the expert's scope to ensure that the expert stays within the confines of the review and opinion being sought will help ensure that they stay on track, do not exceed expected costs and prevent additional exposure.

Conclusion

While there may be a reluctance to engage an expert sooner due to cost considerations, experience shows that health care litigators benefit from the timely and effective use of outside experts, regardless of whether the context is a deposition, mediation, government investigation or an actual trial.

While health care litigators must stay current with legal and regulatory statutes that seem to shift on a monthly basis, the impact of these frequent changes are experienced through actual change management and implementation by others (i.e., the "experts"). The result can in some cases be a significant knowledge gap between a technical understanding of the law and a pragmatic understanding of how those regulatory changes impact the daily operations of health care organizations. Within this gap lies potentially useful information and guidance your expert may have that should be explored as often and as early as possible.

Sue Antoni is senior vice president of Sinaiko Healthcare Consulting, one of the nation's leading health care management consulting firms. Antoni, who is a frequent expert witness in health care litigation, can be reached at sue@sinaikohc.com.

 

 

 

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