Using a Medical Billing Review Expert in a Wrongful Death Case

Wrongful death liability is primarily a creature of state law. While every state recognizes the right to sue for wrongful death, states take different approaches when they define the persons who can sue and the damages that are available. 

In every state, however, a plaintiff who brings a wrongful death action can recover the victim’s medical expenses prior to death as an element of damages. Medical billing review experts help plaintiffs recover those billings. They also help insurance companies defend against an award of damages for unreasonable charges.

A wrongful death is a death that is caused without legal justification. The death might be caused intentionally or negligently, although most intentional killings are handled in criminal prosecutions rather than civil lawsuits. Still, a murderer with substantial assets will sometimes be sued for wrongful death.

The plaintiff in a wrongful death lawsuit is determined by state law. The deceased victim’s estate may be entitled to pursue a wrongful death action. State law may give that right to certain close family members, including the victim’s spouse and minor children. Whether other relatives can join the lawsuit, and how the person who brings the suit must distribute the proceeds among eligible relatives, is also determined by state law.

Depending on state law and on the circumstances, damages may be recovered in either a wrongful death action or a survival action. A survival action is brought on behalf of the deceased for harms that the victim suffered before death. A wrongful death action is brought by or on behalf of the victim’s estate or heirs. Both kinds of lawsuits are often combined in a single complaint. The recovery of medical expenses may be possible in both a survival and a wrongful death action. 

When the estate or the victim’s heirs paid the victim’s medical expenses related to the injury that caused the death, the estate or heirs may sue to recover those expenses. When a death was sudden and immediate — such as a death caused by a gunshot to the head — medical expenses may be minimal or nonexistent. In those cases, the estate or heirs may seek recovery of funeral expenses and other damages provided by state law, such as loss of financial support that the victim would have provided.

In many cases, however, medical expenses are substantial. A victim may linger in a coma for weeks before death is pronounced. Surgeons might perform multiple operations in an effort to extend or save the victim’s life before the victim dies. Palliative care for cancers caused by exposure to asbestos or other toxic substances in dangerous products can result in substantial medical bills.

Plaintiffs in a wrongful death or survival action can recover medical expenses related to the injuries that caused the victim’s death. Causation is typically proved by fact witnesses, treating physicians, and by other witnesses with knowledge of how injuries were sustained that resulted in medical treatment. 

To recover those expenses, the plaintiff must proof that the treatment was necessary and that billings for the treatment are reasonable. Necessity is usually proved by a treating physician’s testimony that the billed services were needed to diagnose and treat the injuries.

Medical bills are reasonable when the charges are consistent with the usual and customary fees charged by other providers of the same services in the same community. The “usual” fee is the fee that the same provider charges other patients for the same services. The “customary” fee is the fee that comparable providers charge for the same services in the same geographic area.

Expert testimony is often essential to establish that a physician charged a usual and customary — and therefore reasonable — fee. Whether charges are reasonable cannot usually be established by medical testimony. A physician’s opinion that his or her chares are reasonable does not meet the evidentiary standard for proof of reasonableness. 

Doctors usually have no personal knowledge of the prices charged by competitors. They often admit on cross-examination that they have not surveyed other doctors in their area to determine the amount they charge for the kind of services that are reflected in a medical billing. 

Since jurors do not understand whether charges in a community are usual and customary, expert evidence is typically needed to prove the reasonableness of fees. The federal Daubert standard and its state counterparts require expert to testimony to be based on sufficient facts and a reliable methodology that experts apply to the facts in a reliable way. Physicians might have anecdotal conversations with other doctors about fees, but they can rarely claim to have used a reliable methodology to determine whether their charges are reasonable.

Familiarity with billing and diagnostic codes gives medical billing experts specialized knowledge that ordinary jurors do not possess. Courts agree that medical billing experts do not need medical training to qualify as expert witnesses.

Medical billing experts satisfy the Daubert standard by gathering sufficient facts and data. They review medical records to determine whether the billings are accurate and whether they reflect the correct billing codes. They base opinions on databases that record the actual costs of specific medical services within a community. Courts consider those facts to be sufficient to support an expert’s analysis of a medical billing.

Medical billing experts also derive their opinions from reliable methodologies. They use databases to determine the actual prices charged by other physicians in the same area for the same services. That analysis allows the expert to determine whether the medical billing falls within a reasonable range of charges for the same services or is substantially higher. 

By adhering to methodologies that satisfy Daubert , medical billing review experts offer admissible expert testimony in wrongful death cases. Whether called by a plaintiff to establish that bills are reasonable or by a defendant to challenge reasonableness, a medical billing review expert is an essential witness in wrongful death litigation.