Does Attorney-Client Privilege Cover Communications with Medical Billing Experts?

Lawyers hire medical billing experts for many reasons. They are an important link in the chain of evidence to recover (or defend against) medical expenses in personal injury cases. Most jurisdictions only allow the recovery of “reasonable” medical expenses. Medical billing experts are uniquely qualified to provide expert testimony about the reasonableness of medical bills.

Medical billing experts also testify in insurance disputes and in false claims lawsuits. Any litigation that asks whether a healthcare provider overbilled will benefit from the testimony of a medical billing expert.

The communications between lawyers and their clients are privileged from discovery. In other words, clients who testify in court or in depositions are not required to disclose what they have been told by their attorneys.

Does that same privilege extend to communications between lawyers and the medical billing experts they have hired for their client’s litigation? The answer depends on the circumstances.

Experts can be retained for different purposes in litigation. Consulting experts provide information to an attorney that the attorney needs to prepare for trial. Consulting experts are not expected to testify as witnesses. They are not required to prepare reports that comply with the requirements that rules of evidence impose upon testifying experts. They usually offer informal opinions that are often communicated in emails or in conversation.

Testifying experts are retained for the purpose of giving evidence. A testifying expert must usually prepare a report that complies with the applicable rules of procedure. In federal court, the rules require the report to disclose specific detailed opinion about the expert, the expert’s compensation, the expert’s precise opinions, the facts upon which the expert relied, and the reasoning that supports the expert’s opinions.

In some cases, consulting experts become testifying experts. For example, a lawyer might initially retain a medical billing expert to determine whether medical expenses are reasonable. If the expert’s opinion favors the lawyer’s client, the lawyer may decide to hire the expert to testify in court. If the expert’s opinion does not favor the client, the lawyer may decide not to pursue that aspect of a claim or defense.

The Federal Rules of Civil Procedure (and typically their state counterparts) require lawyers to disclose the identities of experts who have been retained to offer evidence in a case. Lawyers must also disclose the expert’s formal report to opposing counsel.

While the formal report must be disclosed, prior drafts of the report are usually protected from disclosure. It is not unusual for a report to evolve over time. Nor is it unusual for experts to share reports with the lawyer who retained them and to prepare a new draft after the lawyer identifies weaknesses in the expert’s data or reasoning. Under most circumstances, those earlier drafts of the report cannot be discovered by the opposing party.

The exception for prior drafts is narrow. An expert’s notes, for example, might not be regarded as the prior draft of a report. Courts also allow discovery of prior drafts when the opposing party has a substantial need for the report.

Even before the report is prepared, the lawyer and the expert will probably communicate about the nature of the expert opinions that the lawyer requires. The lawyer will generally share documents and provide facts that the expert will rely upon to form an opinion. In the case of a medical billing expert, for example, the lawyer will at least provide medical billings and medical records for the expert to review.

The Federal Rules of Civil Procedure protect some, but not all, communications between a lawyer and a testifying expert. When the communication is protected, the form of the communication — letter, email, or conversation — does not matter. Protected communications need not be disclosed in discovery.

Communications of the lawyer’s mental impressions about the case and the lawyer’s legal theories are at the heart of the rule protecting communications with lawyers from disclosure. Communications between an expert and the lawyer’s client, however, enjoy no protection.

Exceptions to the rule that protects attorney communications with experts from discovery include:

The phrase “facts or data” includes anything the expert considered in forming an opinion, even if the expert ultimately chose not to rely upon it. For example, a billing expert might consider prices charged by other doctors for similar procedures when the expert considers whether charges are reasonable. The expert might decide that certain doctors are less experienced or are otherwise not suitable for comparison. The fact that the expert considered but rejected certain data for comparative purposes makes the data discoverable.

Testifying experts are subject to discovery, including discovery of certain communications with the lawyers who retain them, because they will be offering opinions at trial. Consulting experts who do not testify are subject to different rules.

For the most part, opinions communicated to a lawyer by a consulting expert are protected from discovery. That protection includes facts communicated to the expert by the lawyer. A medical billing expert who reviews data and provides opinions to a lawyer but who is not expected to testify at trial is generally shielded from discovery.

A narrow exception to that rule applies when exceptional circumstances exist that make it impracticable for the opposing party to obtain facts or opinions on the same subject by other means. That exception rarely applies to medical billing experts because there are almost always other sources of facts and opinions available to opposing parties.