Liability in medical malpractice cases, as in other negligence cases, is established with evidence that a defendant breached the legal duty to exercise reasonable care to avoid foreseeable harms. Unlike other negligence cases, the defendant’s duty is established by a standard of care that must be proved with expert witnesses.
Proof of damages in a medical malpractice case, as in other negligence cases, may also require expert testimony. Medical testimony may be needed to establish the nature and extent of injuries caused by malpractice, the necessity of medical treatment to repair the harm caused by the malpractice, and the probable need for future treatment.
In addition, victims of medical malpractice must prove the reasonableness of medical expenses they incurred to treat the harm caused by medical malpractice. That proof often requires the testimony of an expert witness.
Example of Medical Expenses in a Medical Malpractice Case
Medical expenses associated with medical malpractice can be substantial. A 35-year-old woman in Texas was pregnant with her first child. She first saw a doctor in her ninth week of pregnancy. Her pregnancy was uneventful until a routine prenatal checkup in her 37th week revealed an elevated level of hemoglobin, a test result consistent with blood loss. That evening, she was admitted to a hospital with severe abdominal pain. An ultrasound revealed that her fetus had detached from the uterine wall.
Further tests revealed that the woman suffered from a blood clotting disorder. She was infused with blood products, including plasma, red blood cells, and platelets. After she delivered a stillborn baby, further tests revealed that her blood still was not clotting properly and that she was suffering from significant blood loss. She was transferred to ICU, where an EKG indicated that she had an elevated heart rate.
During her stay in the ICU, nurses noted a drop in blood pressure and abnormally low oxygen saturation. Tests revealed that her blood was not clotting at a normal rate and that her kidneys were not receiving adequate blood flow. Doctors concluded that the woman had developed uterine atony, a loss of muscle tone in the uterus that prevents it from contracting and clamping down, resulting in excessive blood loss. They performed a hysterectomy to remove the failing uterus and stop hemorrhaging. In the operating room, the woman’s heart stopped because of blood loss.
The woman survived the surgery but experienced post-surgical seizures. A neurologist determined that she suffered brain damage because of her brain had been deprived of oxygen when her heart stopped pumping and perhaps in the hours leading up to her heart failure. After months of rehabilitation, doctors agreed that she would remain in a persistent state of vegetation.
Reasonableness of Medical Bills
The woman’s husband sued various healthcare providers for malpractice. The jury returned a verdict of more than $10 million, including almost $704,000 for past medical expenses and more than $7.2 million for future medical expenses.
While Texas allows the reasonableness and necessity of medical bills to be established by affidavit, it also gives the opposing party the right to challenge those affidavits. On appeal, the court noted that the Texas legislature’s effort to streamline proof of reasonableness and necessity of medical expenses “cannot negate the requirement that reasonableness and necessity be in fact proven by legally sufficient evidence.”
The appellate court noted that the reasonableness of medical bills is not always apparent. The court stated that “costs today are complex, and the price of a particular provider’s services may depend on many factors, including geography, experience, location, government payment methods, and the desire to make a profit.”
The court also noted that “it is not uncommon or surprising that a given medical provider may have no basis for knowing what is a ‘reasonable’ fee for a specific service.” Doctors focus on medicine, not on the cost of providing medicine. They might know what they charge, but reasonable fees are based on usual and customary charges within a community. Most doctors are not acquainted with usual fees charged by comparable doctors for similar services. Doctors are therefore not in a position to provide the expert testimony needed to prove that medical bills are reasonable.
How Medical Billing Experts Prove Reasonableness
Since ordinary jurors do not know whether a particular charge for a medical service is reasonable, plaintiffs must typically present expert evidence to establish reasonableness. In some jurisdictions, the payment of a bill establishes a presumption of reasonableness, but defendants are entitled to challenge that presumption with expert evidence.
To form an opinion about the reasonableness of a medical billing, medical billing experts examine the Current Procedural Technology CPT codes in the billing to determine the services for which the patient was billed. They compare those codes to the medical records to determine the billing’s accuracy.
In some cases, medical billing experts find that doctors or hospitals billed for services and procedures that were never provided. They may also find that the patient was billed for a more complex or expensive procedure than the one that was performed. A careful review might find that the biller separated procedures that were performed at the same time and billed them as if they were performed at different times. All those billing errors inflate charges and render the billing unreasonable.
Medical billing experts then consult established databases to determine the fees charged by other physicians in the same community for the same services as those that were billed. The decide whether the fee that was charged falls within a range that is customarily charged in the same community for the same services by doctors of comparable skill and experience.
If the bill is accurate and if it falls within the range of fees charged by other physicians, the bill is reasonable. If the bill is inaccurate or if it is substantially higher than the fees charged by other physicians, it is likely unreasonable unless there is a credible explanation for the higher fee.
Medical billing review experts, unlike physicians, base their opinions on standardize methods that are accepted within their field of expertise and that produce reliable results. For that reason, judges routinely admit the opinion testimony of medical billing experts.