Medical Expert Witness Testimony

Legal Books and Court Gavel

Why Physicians Charged with Healthcare Fraud Need Expert Witnesses to Testify on Billing, Coding, Issues of Medical Necessity

If you’re accused of healthcare fraud by the federal Government, you can’t afford to fight these claims on your own in court. Without a lawyer who’s solely dedicated to healthcare fraud defense, your case is as good as lost. At the same time, your attorney can’t rely on just caselaw to defend you — they must have the right team of medical experts in place, too.

Although the government has a wide range of resources and experts for when it takes a healthcare fraud case to trial, not all the professionals they use have a direct medical background. Instead, the Feds traditionally rely on statistical data to either support the basis of a healthcare fraud indictment, or to argue medical necessity of a particular procedure or claim.

When this happens, your lawyer can use defense experts — including medical professionals and certified billing and coding experts — to challenge the government’s specialists and their methodology.

What is Healthcare Fraud?

In its simplest form, healthcare fraud is making a false claim to a Government-run healthcare benefit program or a third-party insurance carrier. For a defendant to be found guilty of committing federal healthcare fraud, the Government must prove, beyond a reasonable doubt, that the defendant (1) devised a scheme or artifice; (2) to defraud a healthcare benefit program; and (3) the scheme was executed.

Among the more common examples of healthcare are:

  • Accepting kickbacks for patient referrals
  • Submitting false claims or inflated claims to federal healthcare programs (Medicare, Medicaid, and TriCare) or insurance companies
  • Billing for services or durable medical equipment that were never provided
  • Billing for more expensive services or procedures than were provided or performed
  • Performing medically unnecessary services for the sole purpose of generating insurance payments
  • Making false statements on applications or contracts to participate in Medicare or Medicaid programs

How Does Someone Qualify as an Expert Witness for a Trial?

The prosecutor and the defense counsel can’t simply put someone who claims to be an expert on the witness stand. In order to be considered a qualified expert for federal trial purposes, all expert witnesses must follow and pass a four-prong test under Rule 702 of the Federal Rules of Evidence:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Can an Expert Witness’s Testimony Be Called Out?

Yes. The court system uses a benchmark called the Daubert standard to determine whether an expert’s testimony can be admitted at trial. Stemming from a 1993 U.S. Supreme Court case, this standard offers both the prosecutor and the defense counsel a chance to question an expert’s reliability and how relevant his/her testimony is to the case at hand.

Under Daubert, if the prosecution’s expert has a theory or technique that casts doubt over reliability, your defense lawyer can ask whether the theory or technique:

    • Can be (and has been) tested;
    • Has been subjected to peer review and publication;
    • Has a known or potential rate of error; and
    • Enjoys general acceptance in the relevant scientific community.

The Daubert panel noted that because each case has unique circumstances, courts can take other things besides those four questions into consideration.

In addition, for an expert’s testimony to relevant, it must aid the jury in “understand[ing] the evidence or … determin[ing] a fact in issue” and “make a fact more or less probable.” If it doesn’t, that expert’s testimony can be dismissed.

Why Is a Medical Expert Needed for a Healthcare Fraud Case?

Some healthcare fraud claims are rooted in whether a physician’s diagnosis and treatment were medically necessary. If the Feds can prove that the treatment was unwarranted, they can assert that the physician submitted a false claim for it.

Yet, only a medical provider can truly render an opinion regarding the medical needs of a patient. Therefore, the most crucial expert to engage is a physician who concentrates on the same practice as the defendant.

Let’s say you are a pain management specialist who’s accused of overprescribing. Your defense lawyer will want an accredited, reputable physician who also has a pain medicine practice and works closely with controlled substances.

This expert should be able to meet the Daubert standard and the qualifications necessary to be considered an expert, in order to discern whether your actions served “a legitimate medical purpose within the usual course of the prescriber’s professional practice.”

Ronald W. Chapman II, chair of Chapman Law Group’s White Collar Defense & Government Investigations practice group, firmly believes that a strong defense “requires a narrowing of the standard, solid expert testimony and a strong presentation of the patient’s medical need for the prescription issued by a physician.’”

Also, the expert should be active in the practice field, not someone whose full-time job is as a professional expert. Ideally, they should be located in the same geographic area as you.

Note that if you are a nurse practitioner or a physician’s assistant who is accused of healthcare fraud, your defense lawyer will probably still retain a physician as your defense expert. This is because the physician is the most integral and knowledgeable source in a healthcare practice, and they will be able to impart knowledge on whether your alleged actions were intentional.

What Happens Once a Medical Expert is Selected for a Healthcare Fraud Case?

Once the appropriate medical expert has been chosen, your defense attorney will provide them with a detailed engagement letter informing them of the standard of proof required in a criminal case and the defense theory. (This theory may change over time, or after the expert’s review of the medical records.)

Your lawyer will then educate the expert on the law as well as the overall theme of the defense to the charges. Summer McKeivier, a healthcare fraud attorney at Chapman Law Group’s Los Angeles office, explains that this step is crucial:

“[It’s not having the expert] 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.”

Finally, your lawyer will provide the expert with copies of the Government’s medical expert’s report and the relevant medical records. This will allow the medical defense expert to render a medical opinion regarding the treatment provided, as well as to aid the defense in preparing to cross-examine the Government’s expert at trial.

Why Are Billing and Coding Experts Needed for a Healthcare Fraud Case?

Although billing and coding are subjects that aren’t taught in medical school, they should be. Why? Because if the government and third-party insurance carriers suspect a healthcare practice of filing false claims, the physician will be the first person on the Feds’ radar. And if the physician doesn’t know what goes into billing and coding, how can they explain what may have happened?

Medical billing and coding make up the most complicated parts of practicing medicine. Just the process of getting paid for medical services is a full-time concern, which is why most physicians hire dedicated billers and coders.

And it’s not simply about matching a code to a service, then sending it off for Medicare and Medicaid reimbursement; coding guidelines and regulations vary between insurance policies and change almost every year, so the billers and coders must stay abreast.

Biller and coders have several roles in the claims process, so much so that they can go by corresponding titles. These include medical records technician, clinical documentation specialist, medical abstractor, and payment integrity auditor.

Your attorney should have a Certified Professional Coder (CPC) and Certified Professional Biller (CPB) on the trial team for defending against allegations of false and fraudulent claim submissions. Each expert must have proven knowledge of how to submit claims in accordance with government regulations and private payor policies. They should know all manners of billing fraud, such as double billing, upcoding, unbundling services, and submitting false claims for services not rendered. They also must be accredited by the American Health Information Management Association or the American Academy of Professional Coders.

At trial, your CPC and/or CPB expert witness(es) will explain to the jury what the process is for healthcare providers to normally bill Medicare. By giving the jurors an understanding of the steps involved, your expert will demonstrate how you followed the necessary steps, or, if you and/or your staff made a mistake, how it stemmed from neglect or human error, not intent. A billing error might not be as outrageous as the government is claiming it to be; a billing expert attesting to this at trial could result in lesser charges or full acquittal.

In addition, the Government routinely produces contradicting opinions, guidelines, and regulations for billing practices. A defense expert in billing and coding can take advantage of the fact that the Government is responsible for conflicting information — thus damaging the prosecution’s case and raising reasonable doubt in the minds of a jury.

What Other Expert Witnesses Are Beneficial for a Healthcare Fraud Defense?

There are other highly qualified experts who should be retained for a healthcare fraud case. Not only can these professionals provide trial testimony, they also can assist the defense team in understanding the intricate regulations in healthcare.

These experts should have certifications in regulatory compliance, including:

    • Certified Professional Medical Auditor (CPMA)
    • Certified Healthcare Compliance (CHC)
    • Certified Medical Compliance Officer (CMCO)
    • Certified Medical Coder (CMC)
    • Certified Medical Insurance Specialist (CMIS)

How Do the Healthcare Fraud Attorneys at Chapman Law Group Use Expert Witnesses?

For more than 35 years, our lawyers have built a solid, proven track record of victories for healthcare fraud cases. But we’ve never reached dismissals and not-guilty verdicts at trial on our own: Chapman Law Group has a network of medical professionals, statisticians, and healthcare fraud investigators at the ready to provide expert witness testimony. In addition, we have a full-time Certified Professional Biller on our staff who is regularly called upon to analyze the Feds’ claims.

Our national law firm is solely dedicated to representing licensed medical providers in federal healthcare-based criminal defense matters. Many of our attorneys have advanced law degrees (LL.M.) in Healthcare Law. And we aggressively defend physicians and medical specialists at every step — from the internal investigation right up through trial.

Our experienced lawyers and reputable medical experts are ready to help you with the best healthcare fraud defense. Contact us today to learn more about what we can do for you.

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Summer McKeivier

Senior Attorney

Healthcare-Based Criminal Law, Healthcare Fraud

Los Angeles Office

5250 Lankershim Blvd., Ste. 500
North Hollywood, CA 91601
Phone: (248) 644-6326

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