Medical Billing Expert Testimony in Medical Malpractice Cases

Medical errors are a leading cause of death in the United States. Errors caused by negligence can entitle a patient (or a deceased patient’s family) to compensation. 

Expert witnesses help patients prove medical negligence. Doctors usually testify as expert witnesses in a medical malpractice case. When a negligent physician has taken steps to hide his or her error, medical billing experts can also offer testimony that is critical to making a successful malpractice claim.

When physicians attempt to conceal malpractice by altering medical records, they create a disconnect between the treatment records and billings. A careful analysis of billings can provide strong evidence that the treatment records were changed. Altered records often provide the proof that cements a malpractice claim.

Medical malpractice is another term for medical negligence. A physician or hospital commits malpractice by failing to adhere to the treatment standard that governs prudent healthcare providers.

For example, when a patient complains of certain symptoms to a family practice physician, the physician must provide at least the same care that would be expected of an average family practice physician. If the standard of care requires the physician to order certain tests in order to diagnose or rule out specific causes associated with the patient’s symptoms, a physician who fails to order those tests is negligent.

Medical negligence is usually proved through the expert testimony of a physician who practices in the same field of medicine as the defendant doctor. When the malpractice claim is based on a family practitioner’s failure to diagnose a health condition because critical tests were never ordered, the patient will usually call a family practitioner as an expert witness to establish that the standard of care requires prudent family practitioners to order those tests.

Nobody is perfect. When ethical doctors make a mistake, they inform their patient of their error. When the mistake harms the patient, the doctor’s insurance company should compensate the victim of the doctor’s negligence.

Unfortunately, not all doctors are ethical. Studies have established that many doctors attempt to conceal their mistakes or shift the blame to the patient or other doctors rather than admitting their errors. Doctors may worry about their professional reputations, while hospital administrators may worry about institutional liability if they fail to cover up a doctor’s mistake.

Surveys show that 7% of doctors believe it is acceptable to conceal errors from patients, while another 14% feel it is acceptable to hide the truth under some circumstances. In practice, since human nature is to think of ourselves as honest until we are presented with a choice to be dishonest, the percentage of doctors who are willing to hide their malpractice is probably much higher than the percentage who are willing to admit their dishonest instincts.

Physicians who try to conceal their malpractice often do so by altering medical records. They might change patient histories to make it appear that a patient never told them about an allergy. They might change medication records to make it appear that they prescribed a different medication than a nurse administered to a hospitalized patient. They might indicate that they advised a patient to obtain a test that the doctor never discussed with the patient.

In some cases, altered medical records result in “doctor said – patient said” credibility contests. In a percentage of those cases, a medical billing expert can detect evidence that the patient records were changed.

In a New York case, a patient was examined for a complaint of pain in her breast. The patient contended that the physician told her she had a lump in her breast but advised her that 90% of lumps do not lead to a diagnosis of breast cancer. Several months later, the lump had enlarged and had become noticeable to the patient. She returned to the doctor, who recommended a biopsy. The biopsy revealed the presence of breast cancer.

The patient contended that the physician should have advised her to obtain a biopsy during her first examination months earlier. Had the physician done so, the patient could have commenced treatment earlier and would likely have had a more favorable prognosis. The patient contended the doctor’s failure to recommend a biopsy during the first examination was negligent. The patient’s medical expert offered evidence that the standard of care required an immediate biopsy and that the failure to order one shortened the patient’s lifespan.

The doctor responded that the initial breast exam was normal and that no lump was detected. The doctor claimed that the patient’s medical records confirmed that no abnormality was present during the exam. 

However, billing records that had been submitted to the woman’s health insurer contained a diagnostic code that, translated into words, means “unspecified lump in breast.” The billing therefore revealed the doctor’s finding of a lump, a finding he tried to conceal by altering the medical records. 

Jurors do not know the meaning of diagnostic codes. Medical billing experts can provide vital testimony to help the jury understand that the diagnosis indicated in billing records establishes that the diagnosis was made, even if treatment records were later altered.

Discrepancies between billing records and treatment records raise questions about a doctor’s credibility. Tampering with evidence creates a strong impression that the physician is hiding the truth. In a “doctor said – patient said” case, billing records that suggest the doctor’s deception may tilt the jury’s view of the evidence in favor of the patient.

In addition, when doctors change treatment records to cover up their mistakes, most jurisdictions allow the patient to seek punitive damages as part of the malpractice action. The patient may also be entitled to seek sanctions for spoliation of evidence. The most common sanction is a jury instruction that allows the jury to infer from altered evidence that the evidence was unfavorable to the doctor before changes were made.

Comparing medical records to billing records is a vital part of a lawyer’s assessment of a potential medical malpractice case. Experts in medical billing can conduct that assessment, produce a report, and testify in court if they find a mismatch between treatment records and billing records.