Medical Expert Witness Testimony
February 3, 2022
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Why do physicians charged with healthcare fraud need testimony from a medical expert witness? Our federal criminal defense lawyers explain.
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In our 35 years of defending licensed healthcare professionals accused of healthcare fraud or improper opioid prescribing, we at Chapman Law Group are adept at spotting a disturbing pattern: healthcare providers coming to us after their former lawyers just couldn’t handle their healthcare-based criminal law matter.
It could be a solo attorney offering a doctor a low rate or a flat fee in accepting their healthcare fraud case.
Or a physician coerced into using a big-name law firm based on the senior partner’s litigation experience — only for that doctor’s case to be thrown to inexperienced associate attorneys.
Perhaps the lawyer is taking on too many other cases, and a matter as complex as healthcare fraud is proving to be just too overwhelming.
Meanwhile, doctors, pain management specialists, pharmacists, chiropractors, and other healthcare providers end up wasting money, time, and peace of mind — all because they chose the wrong attorney without picking up on the signals that scream, “Stay away from this lawyer!”
But what are the warning indicators that anyone facing healthcare fraud or improper opioid prescribing charges should notice immediately when selecting counsel?
In our latest edition of Chapman Law Group’s Health Care Hot Topics video podcast, Ronald W. Chapman II, chair of Chapman Law Group’s White Collar Defense and Government Investigations practice, leads an exploration into the eight signs that tell healthcare providers they’ve chosen the wrong lawyer to handle their Medicare, Medicaid, TriCare, or other healthcare fraud-related case, or a pain medication charge.
Joining Ron are Chapman Law Group senior attorney Summer McKeivier, who works out of our Los Angeles/Southern California office, and specializes federal criminal defense, healthcare fraud and abuse, governmental investigations, and DEA matters.
In addition, we welcome Linda Cheek, MD, founder and director of Doctors of Courage, to this video podcast. Cheek, whose had been convicted on improper prescribing-related charges, started Doctors of Courage to help physicians understand their rights when facing prosecution or indictment by the Department of Justice. The Doctors of Courage website helps those in the medical community by providing resources and news stories about the “injustice against medical professionals and chronic pain patients.”
We at Chapman Law Group are dedicated solely to defending licensed healthcare providers, so our lawyers have the experience necessary to handle healthcare-specific criminal law matters at trial. In fact, we are one of the few — if not only — law firms in the U.S. that has this distinct advantage for those in healthcare.
And that point leads us to the kickoff entry on our list.
It’s not enough that a lawyer says he/she knows criminal law. When it comes to healthcare fraud, that attorney must understand terminology specific to Medicare and Medicaid. They need to mine through a myriad of complex billing/CPT and diagnostic codes to find proof that a simple billing error, and not a healthcare fraud scheme, is to blame.
They must be adept to all of the nuances within the Medicare system, because, as Summer explains, doctors “just want to practice medicine. They’re focused on reading The New England Journal of Medicine, not the CPT book, not the Medicare guidebook.”
This is why the lawyer needs to know, and to demonstrate, that he/she follows the ever-changing rules and regulations governing Medicare.
“The real focus should be on the definition of healthcare fraud under the United States [criminal] code, which is a scheme or artifice to defraud,” Summer says. “Nowhere in any criminal code is a mistake considered a crime. … Violating a regulation is not a violation of a criminal statute. You can make a mistake; in fact you can make a mistake repeatedly for years because you’ve understood a certain coding when billing your services to be to be a certain way.”
In addition, that attorney needs to have a decades-in-the-making track record of healthcare fraud and improper prescribing trial victories.
As Linda says, “It’s extremely important that they have trial experience because they have to know what direction the prosecution might take in attacking their client and be able to have the proper tools in which to put those particular attacks down.”
Many inexperienced healthcare attorneys adopt a wait-and-see approach when their client is targeted by the federal government, such as the DEA, for healthcare fraud or drug trafficking charges. Not wanting to “ruffle the government’s feathers,” and instead waiting to see if an indictment is handed down, is one of the worst strategies in white collar federal prosecutions.
That’s because if a criminal defense attorney is not doing anything before an indictment, that attorney isn’t doing anything that will effectively help his/her healthcare provider client.
“The let-sleeping-dogs-lie thing is pretty much paramount amongst standard white-collar attorneys that really do not know what they’re faced here,” Linda says. “It’s the old ostrich approach: if we ignore it, it’ll go away. And the doctors think that the more time that passes, a month turns into two months, turns into six months, ‘Oh, they haven’t found anything wrong.’”
That is, until the indictment is handed down.
At that point, Summer says, the healthcare provider is put “behind the eight ball, because once an indictment comes down, the government has pretty much done their investigation.”
Instead, Summer explains, any advance indication that the government is looking into a healthcare practice, like a search warrant or a request to review records, is “a gift.”
“It’s going to give you the time to begin doing a parallel investigation. At this point what you know is that Medicare or the government are investigating you. … You need to be making a parallel copy of those to provide to your attorney because at the same time the government is sending those records to their medical expert or whomever or their billing and coding expert to review.”
Summer adds, “You can do so much more prior to an indictment being issued than you can once that becomes stamped on an indictment.”
Just as a patient wouldn’t assume a family doctor is able to perform brain surgery, a healthcare provider shouldn’t expect a lawyer who handles everyday law — DUI, divorce, wills, personal injury — to take on matters as highly complex as healthcare fraud or improper prescribing.
But there are those kinds of attorneys who claim they can. And they usually can’t.
“A general criminal defense attorney or federal criminal defense attorney is not going to understand how time-consuming [healthcare fraud cases] are,” Summer says.
Because healthcare fraud cases involve comprehensive, data-driven analysis, “they’re not going to understand a lot of the terminology so they’re really not even going to know what they’re looking at and if what they’re looking at is important to the defense.
“This is not just about reading some interview reports of the witnesses and saying, ‘OK, now we can go to trial,’” Summer adds. “This is about actually going back and checking the government’s work.”
Ron explains that approximately 80% of the cases he takes — from false claims charges and unlawful dispensing of a controlled substance, to prescribing outside of accepted medical treatment principles and home health care fraud — are ones he’s had to take over from general practitioner. By that point, the healthcare provider client is in dire straits.
“That generalist has often spent a considerable amount of money and finite resources and chewed that up in furtherance of defenses that aren’t going to work,” Ron says. “Many times we’re able to fix it and make it right, but there are many doctors I can’t help because they’ve spent everything on a generalist who is pursuing the wrong goals in the wrong direction.”
Many criminal law attorneys are prone to take cases on a flat-fee or low-fee basis, and in doing do don’t do right by their clients. They will instead pressure their clients to take a plea deal, so that the attorneys need not spend too much extra time defending them. In that scheme of things, those lawyers simply profit.
With healthcare fraud and drug trafficking, however, there are no simple solutions. And both general criminal attorneys and their unwitting healthcare provider clients who agreed to a flat or reduced fee find this out the hard way.
Even the most “simple” healthcare fraud case takes over 100 hours. And at a reasonable hourly rate of $300-$500, an attorney who offers a flat fee of $15,000 is sure to pressure his/her client to plead after spending time on the case.
“They’re not going to want to take it to trial,” Summer explains, “because that’s going to take them out of their office and [be able to make] money on other cases for a long period of time, which ultimately is them losing money.
“And if you’re not savvy as to the ways of retainers and how it works, a lot of them are going to ask for an additional fee. If you haven’t read the fine print of your retainer agreement, you’re going to understand that you owe that additional fee.”
By the time a healthcare provider realizes he/she needs a new attorney to handle the healthcare fraud cases, “That just means you are repetitively paying the same money over and over and over again,” Linda says. “Whereas the smart thing to do would be to pick someone who basically knows the steps to take so they’re not having to go back and relearn their law school directions for healthcare fraud.”
That last point, Ron says, is something that adds insult to injury for healthcare providers: “The generalist who doesn’t know healthcare fraud who’s being charged an hourly rate and maybe not a flat fee is really charging you for their own education” into what healthcare fraud litigation involves.
Many attorneys trade on their reputation of personally knowing the judge or prosecutor involved in the healthcare fraud case. But will that judge give his “friend” a good deal for their client simply because they go to the same church? Does the prosecutor come up with a better arrangement just because they see one another at dinner parties and chat?
Probably not. Many attorneys who claim they can get a good deal by knowing the judge or prosecutor do not aggressively litigate on behalf of their clients — for fear of upsetting the local judge or prosecutor in their local area.
“It’s one thing to actually know a prosecutor. It’s another thing to tell a prospective client that you can get them a better result because you know the prosecutor, which is a very, very damaging thing to say,” Summer says.
Such behavior, she adds, is detrimental: “That’s how these prosecutors get away with everything. … They get set in this pattern because no one’s challenged them, and they just do it that way and that’s a problem.”
That’s not the case with a healthcare fraud attorney who not only has experience in the courtroom, but also uses the courtroom — particularly the federal appellate court — to advance the practice, principles, and case law that governs healthcare fraud law.
“We’re finding when we go to each of these districts is that we’re being pigeonholed by, ‘This is just how we do it in this district,’” Summer says. “We are the ones who are challenging it. Why are we doing that? So that when we go to the next district that says, ‘This is just how we do it,’ we can say. ‘Look we’ve changed it [in this district], and we’re bringing it here.’
“It’s not just benefiting our clients; it’s benefiting us as defense attorneys.”
Sometimes what a consumer is offered isn’t what he/she actually gets in the end. That can happen to healthcare providers who go the “Big Law” route and are expecting an experienced partner from the largest, most prestigious law firm in that area to personally handle their healthcare fraud or improper prescribing case.
That highly touted partner then utilizes his/her skills and experience by handing the case off to an associate attorney.
And while associates certainly can be used for certain tasks, why didn’t a case as complex, intricate and potentially career-devastating as healthcare fraud go to the big-name attorney originally — assumedly — hired for it?
“There are particular law firms out there where the name on the door is just a figurehead,” Summer explains. “He or she is not really an attorney who goes and does cases. So that’s why they’ll throw their name on your case. They’ll file an appearance, but the truth is they’re not doing that for any other reason than sort of to protect themselves. … That is false advertisement.”
Linda concurs, adding, “That’s going to cause a lot of disgruntlement among the defendants [from the] perspective that he’s not getting the person he thought he ‘paid for’ defending him. That can set up a lot of rift.”
A healthcare-based criminal defense firm that employs a team approach, and puts that aspect upfront, will have a much better strategy. Those expectations give the healthcare provider client a better peace of mind.
“That’s how a law firm works,” Ron says. “You can’t have one attorney who does everything. Nobody has that kind of time. But we’re never going to just say to one of our associates, ‘OK, we just got this client. Here it is, go do it,’ and not in any way shape or form have oversight or not in any way shape or form not know that person. I just think that that happens quite a bit with these nationwide firms where you see these big names.”
Ron says every so often he will get a call from another lawyer defending a doctor or prescriber somewhere else in the U.S., asking for a recommendation to use at trial.
“The first thought that goes through my mind,” he says, “is, why did you ever accept a case where you don’t know who to turn to for expert witness support?”
To win healthcare fraud and opioid prescribing cases means having support from experts — and not always just medical experts. If an attorney who’s not well-versed in healthcare fraud doesn’t have support from the right team of experts and investigators, that healthcare fraud or prescribing case is as good as lost.
“Much like starting with that inexperienced attorney and then giving us a call because we do healthcare law, you’re going to have the same problem with your expert,” Summer says. “You’re going to have an expert report and your attorney is going to review it and go, ‘This is not coherent,’ or, ‘This doesn’t make any sense,’ or, ‘This is nothing what I needed to be focused on.’”
One of the things a defense lawyer does is prepare an expert as a defense to the alleged crime, “so it’s not just come and stand up and say, ‘Here’s what I know about medicine.’ It’s, ‘Here’s what I know about this type of medicine and why this is not an unlawful distribution of an opioid.’ It’s not just you know how opioids work.”
Summer adds, “If your attorney doesn’t have experts that they know and like, what that tells you is that they don’t have experience in this area. If they don’t have experience in this area … this is not the attorney for you.”
Many small firm and solo attorneys who say yes to too many cases end up becoming overworked. This happens when, as mentioned earlier, they take flat-fee retainers that are too low and end up unable to meet their obligations to their cases.
Then there’s poor communication. Not paying attention to detail. A lack of preparation. The attorney seeking one adjournment after another.
The signs that this attorney is overworked and unable to meet the obligations of the retainer are neon bright.
“I’ve said this over and over: these cases are labor intensive because they’re data intensive,” Summer says, “Just yesterday, I spent over six hours focused on claims … for a pharmacy review, and from there what I found was the government not having everything they needed and double-counting some numbers.
“But a solo practitioner is just going to listen to what the government says and that’s going to be this little spreadsheet that the government made from that data, and they’re going to take that as evidence and say, ‘Oh, this many orders versus this many claims.’
“If they don’t have the time to go back and actually look at the underlying data where the government got that to see if the government was correct, then you’re in trouble. … They’re going to take the government at face value.”
As this latest video podcast states, there are so many things general practitioners do wrong, overlook, or simply cannot handle when it comes to healthcare fraud and improper prescribing defense. And with a healthcare professional’s license on the line, there’s more to being found guilty than just a criminal sentence.
But at Chapman Law Group, our healthcare fraud defense attorneys and criminal defense lawyers will aggressively defend all healthcare-related criminal matters.
With 35 years of exclusively representing the health care sector, we at Chapman Law Group understand that criminal proceedings will likely result in professional licensing or administrative actions. That is why we provide comprehensive and aggressive legal representation for physicians, nurses, and others who face criminal prosecution. Our goal is to not only streamline the process, but also to ensure that the criminal conviction is handled in such a way so as to limit the impact on your professional license.
Our national offices are located in Miami and Sarasota, Florida; Detroit, Michigan; and Los Angeles/Southern California. Contact us today to learn more.
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