Both the plaintiff and the defense can benefit from the testimony of a medical billing expert in a personal injury case. Plaintiffs who want to recover medical expenses as part of their damages must often prove that the expenses were reasonable. While reasonableness may be presumed when the expenses were paid, unpaid expenses are open to challenge. A medical billing expert can help the plaintiff establish that the charges (as well as projected future charges) are consistent with the customary, usual, and reasonable charges in the local marketplace for the services that were (or will be) rendered.
Conversely, a defendant may want to use a medical billing expert when the charges appear to be excessive. Courts are generally in agreement that defendants are entitled to call medical billing experts to contest the reasonableness of charges for which the plaintiff seeks compensation.
Reliability of Expert Methodology
Judge Corrigan, presiding in a personal injury case in the Jacksonville Division of the Middle District of Florida, was recently asked to exclude the testimony of a defendant’s medical billing expert. Qualified experts are generally permitted to testify in federal court if they form expert opinions by applying a reliable methodology to sufficient facts in a reliable way.
The defense expert analyzed the medical bills for which the plaintiff was seeking compensation. The billing expert determined that “the medical procedures were not correctly billed, and that the bills far exceed the usual, customary and reasonable charges for the services rendered.”
Judge Corrigan noted that the billing expert had “significant education, training, and experience in the field of medical billing and coding.” The court had no difficulty concluding that the expert was qualified to testify about the reasonableness of the charges and whether medical procedures were correctly coded in billings.
The plaintiff contended that the expert testimony was not based on a reliable methodology. Judge Corrigan determined that the expert-based each opinion on reliable methods.
The expert explained that he examined the bills to search for upcoding or the assignment of a Current Procedural Terminology code for a more expensive service than the service that was actually provided. Comparing services identified and described in medical records to services billed was a reasonable methodology for determining whether the billings were infected with upcoding.
The expert also examined billing records for unbundling of services. “Unbundling” refers to the assignment of billing codes for two separate procedures that were actually performed at the same time, resulting in a higher charge than was warranted by the time it took to perform the procedures. Again, comparing medical records to billings was a reasonable way for a trained coding expert to determine whether unbundling resulted in excessive billings.
To calculate the usual, customary, and reasonable (UCR) charges for the services rendered, the expert relied upon benchmarks from the “resource-based relative value scale,” a physician payment system used and endorsed by the American Medical Association, the U.S. Department of Health and Human Services, and many other medical providers. The plaintiff’s attorney argued that the scale was not applicable to an insured, self-pay plaintiff. The expert testified that the scale applied and the plaintiff offered no evidence to the contrary. The court concluded that the testimony was based on a reasonable methodology and was therefore admissible.
Helpfulness of Expert Testimony
In addition to being reliable, expert testimony must be helpful to the jury. Expert testimony is helpful when it helps a jury decide a disputed issue in the case. If an expert plans to tell jurors something they already know, or offers opinions that aren’t relevant to the case, the expert’s testimony is inadmissible because it isn’t helpful.
The plaintiff argued that the billing expert’s testimony was unhelpful. Judge Corrigan rejected that argument because it was based on precedent that addressed the necessity of treatment rather than the reasonableness of billing.
Like most jurisdictions, a Florida plaintiff who seeks the recovery of medical expenses must prove not just that the expenses were reasonable, but that they were medically necessary. Medical necessity is typically established through the testimony of the treating physician or, in the case of future expenses, a medical expert who believes that specified treatment will probably be necessary for the future.
A billing expert might not be qualified to testify that a particular medical procedure was unnecessary. On the other hand, a billing expert may be well qualified to testify that the charge for a particular medical procedure was unreasonable.
The plaintiff’s argument was based in part on the district court’s decision in Maluff v. Sam’s East. In Maluff, the district court concluded that while a billing expert “may be qualified to opine on whether Plaintiff’s treating physicians double-billed for a certain procedure or incorrectly charged for a certain injury, she cannot speak to Plaintiff’s injuries or the appropriateness of certain treatments.” Defense attorneys need to use a medical expert rather than a billing expert to challenge the necessity for treatment. Nothing in Maluff, however, supported the argument that a billing expert cannot provide helpful testimony about the reasonableness of charges for necessary treatment.
Maluff relied upon the Eleventh Circuit’s opinion in Castellano v. Target Corporation. The court’s one-sentence discussion of medical billing in the Castellano case focused on the “expert’s broad lack of knowledge of the background and underpinning of the information in the DRG on which the expert relied considerably.” The expert apparently failed to demonstrate a sufficient understanding of a patient classification system (diagnosis-related group, or DRG) that standardizes prospective payment to hospitals. The Castellano decision addresses the expert’s qualifications, not the admissibility of testimony regarding the reasonableness of medical billings given by a qualified medical billing expert.
Judge Corrigan considered the Florida court’s decision in State Farm v. Bowling to be a more useful precedent. The defendant in that case proposed to have an expert testify that she compared the plaintiff’s medical bills to the medical treatment records and found “extreme abuse” regarding “the coding, billing, and medical record documentation” of four medical care providers. She testified that with regard to those four providers, “there is absolutely nothing within that documentation that is supportive or representative of any of the billed procedures that I have reviewed.” She identified about $111,000 in improperly documented charges. The appellate court determined that the testimony was helpful and should have been admitted.
Judge Corrigan concluded that the billing expert, like the expert in Bolling, would offer helpful opinions that would assist the jury in deciding whether the plaintiff’s medical billings were reasonable. Judge Corrigan, therefore, allowed the defense to call the medical billing expert as a witness.