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Sep 2014

Hospitals Should Consider Expert Testimony in Claims Disputes

Experts are expensive.  They may charge hundreds of dollars an hour to review your documents and give their opinion on whether you have a strong case.  They may charge thousands of dollars to attend depositions, appear at trial or attend arbitration.  By the end of a case, a health care provider could easily have spent thousands of dollars in expert fees.  In the end, was it worth the cost?  Since an expert, when used wisely, can make or break a case, the answer is a resounding “yes!”

Experts explain complicated information and present an opinion on a disputed issue in a way that a judge or arbitrator can understand and apply in making a decision on a case.  Usually, experts are necessary because there are valid arguments on both sides, and the right expert can help tilt the scales in favor of one of the parties.

With healthcare reimbursement, experts are typically used in two broad contexts:  Hospital Pricing and Clinical Denials.

In the pricing context, experts are invaluable for purposes of establishing that the prices hospitals charge for their services are reasonable.  Because “reasonable” is such a loaded – and subjective – term, it is cause for constant debate between payors and healthcare providers, among patients, and a source of bafflement to judges who have to determine whether a million dollar heart transplant really should have cost a million dollars.  Experts help explain, through statistical evidence, comparative data, and their own knowledge and experience, why the charges at issue make sense and are “reasonable”.  They present and interpret a host of factors (the size and geographic location of the hospital, its patient population, the nature and quality of care provided) in an effort to persuade the judge that the hospital should be paid what it is charging.

In the clinical context, experts are typically used to show that the treatment provided was medically necessary, that the treatment should not be considered experimental, that certain charges should not have been disallowed, or that the patient was extremely ill and thus required to be treated at a very high level of care, such as in the intensive care unit or at the trauma level.  Sometimes it is useful to retain an expert with experience in the very narrow area of medicine that is being disputed.  An expert with specific knowledge and experience in a particular area will often trump the opinion of another expert who has only a generalized knowledge and understanding of the area.

In deciding whether to use an expert or not, a hospital needs to weigh the probable return on investment.  A big factor, of course, is the amount at stake.  Paying an expert $50,000 on a case worth $60,000 might not make a lot of sense.  Sometimes, however, it is a matter of principle, and the cost becomes a secondary concern.  On a strong case, it can provide an opportunity for the hospital to send a clear message to an insurer with a history of underpaying claims.

In selecting an expert, the goal is to have someone with significant knowledge and experience along with an impressive pedigree (a great educational background and practical training and experience is always helpful).  Just as important is how the judge will perceive and experience the expert.  The expert should be able to communicate an opinion clearly, simply and eloquently; be the right “fit” for the case; and be highly knowledgeable without coming off as too esoteric or “ivory-tower.”  He or she should be able to command respect and exude a certain amount of gravitas, yet be “likeable” and approachable but not too casual or “jokey.”  It helps if they are well dressed.

Finally, the expert should never appear to be just a “hired gun”—i.e., unduly biased.  In other words, while they are representing one side of the case, they are not there to toe the party line no matter what.  Experts lose credibility where they merely sound like a broken record, repeating the same opinion and conclusions even when presented with information that shows their opinion to be incorrect.  The best experts will have already anticipated the weaknesses in their position and have a ready response as to why the weakness isn’t really fatal.

The right expert can make or break a case.  A hospital would do well to consider all of the relevant factors and not make a decision based solely on cost..

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