Personal injury cases require proof of liability and damages. To prove liability, lawyers need to establish that a negligent act or omission caused an injury. Medical experts are often crucial to proof of causation.
Some elements of damages, including pain and suffering, may require no expert testimony. Medical experts may nevertheless be needed to prove future damages, such as the need for future surgeries or the existence of a permanent disability that will cause ongoing pain and income loss.
Medical expenses incurred to treat injuries inflicted by negligent acts or omissions are recoverable as damages if they are reasonable and necessary. The necessity of treatment is usually established by the treating physician. However, courts have often ruled that medical experts are not the right witnesses to establish that medical expenses were reasonable. A medical billing expert is the proper witness to prove that element of damages.
Medical Expert Witnesses
Federal courts classify medical expert witnesses as retained experts or non-retained experts. Treating physicians are usually non-retained experts. They were hired by the patient to diagnose and treat an injury. The patient did not hire the doctor to testify in court.
Yet treating physicians often testify, usually by way of deposition, regarding the injuries they observed, the diagnosis they made, and the treatment they rendered. They may also testify that the injuries they treated are consistent with a particular event, such as a traffic accident. That testimony, coupled with the victim’s testimony that she was uninjured before the accident, will usually suffice to prove causation.
Treating physicians give expert testimony. When they explain a diagnosis, for example, they are rendering an opinion that is based on specialized training and experience that is beyond the knowledge of ordinary jurors. Some state courts classify a treating physician as a fact witness or a “hybrid” witness, but everyone recognizes that much of their testimony depends on their expertise.
Whether they are labeled fact witnesses, hybrid witnesses, or non-retained experts, treating physicians are not usually subject to the same requirements as a retained medical expert. In federal court, retained experts must prepare a report that satisfies federal discovery rules. Lawyers who plan to call non-retained medical experts must summarize their opinions but are not required to produce formal reports.
Retained medical expert witnesses are generally hired by lawyers rather than patients. They are hired to form and express opinions, not to treat the injury victim. They will often examine the injury victim, but they do so for the purpose of gathering facts that will inform their expert opinions. They might be hired to testify about the permanent nature of a disability, the need for future treatment, or whether the victim was injured by medical malpractice.
In federal court, medical expert witnesses who have been retained must prepare a formal report that describes the opinions they will express during their trial testimony and the factual basis for those opinions. State rules may or may not require the preparation of a formal report. If no report is required, lawyers will generally be served with interrogatories requesting a summary of each opinion the expert will express. Responding to the interrogatories may require an effort that is similar to preparing a report.
Medical Billing Expert Witnesses
Medical billing experts are always retained experts. They are retained by plaintiffs’ lawyers to prove the reasonableness of medical bills and by insurance defense attorneys to dispute their reasonableness.
The reasonableness of a medical bill depends on whether it represents the usual and customary charge for the same services by physicians in the same geographic area. The usual charge is the price that the treating physician charges other patients for the same service. The customary charge is the price that other physicians in the same community charge their patients for the same service.
As states have increasingly adopted some version of the Daubert standard of expert witness admissibility, it has become increasingly clear that medical experts are rarely able to give admissible testimony about the reasonableness of a medical bill. Expert testimony must be based on the reliable application of a reliable methodology to sufficient facts. Physicians who testify that their bills are reasonable are usually expressing a personal opinion, not an opinion based on a reliable methodology or sufficient facts.
Doctors rarely have more than anecdotal knowledge about what other physicians in the community charge for the same services. They do not base opinions about reasonable charges on reliable methodologies. Courts have increasingly decided that doctors cannot give admissible testimony about the reasonableness of medical billings.
Medical billing experts, on the other hand, use methodologies that have been proven reliable. Experts in the field have adopted a consistent methodology to inform opinions about reasonableness. The methodology requires a careful comparison of medical billings to medical records. If Current Procedural Terminology CPT codes in medical records do not correspond to services that were actually provided, the billing is likely to be inflated.
Medical billing experts also decide whether the correct CPT codes were assigned by the biller/coder. If a code describes a more complex service than the one provided, the billing will be excessive. If the coder used separate billing codes for services that should have been bundled into a single code, the billing will be unreasonable.
After determining that the billing is or is not accurate, a medical billing expert will consult reliable databases to determine the actual charges that other physicians within the same zip code have billed for the same services. The billing expert will compare the physician’s charges to physicians of comparable experience and will ask whether the billing falls within a reasonable range of charges for the same services. That analysis makes use of sufficient facts and a reliable methodology to produce opinions that courts will deem admissible.
Medical experts and medical billing experts have distinct roles to play in trials, but they are not interchangeable. By applying a reliable methodology to sufficient facts, medical billing experts can offer opinions about reasonableness of medical bills that medical experts are not qualified to render.