December 7, 2017

Challenging the Credibility of Experts in Cases of Medical Necessity

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There are lessons to be learned from challenging the credibility of experts in medical necessity issues.

Challenging the qualifications of an individual performing a medical necessity review can pay off. The dismissal of the HCR ManorCare case drew attention because the government’s expert lied and failed to disclose notes, but there is another part of the case that is of more importance and general applicability. The court determined that even absent those errors, AdvanceMed’s “expert” lacked the expertise to testify about medical necessity. The relevant order states: 

“The Court finds that Rebecca Clearwater does not have the expertise to testify as to the reasonableness and necessity of the medical treatment the patients received. Her qualifications, at best, would allow her only to testify as to obvious mistakes in the billing. Furthermore, Clearwater is not a medical doctor, an occupational therapist, nor a speech language pathologist, and she did not personally examine any of the ManorCare patients. The Court finds her simply not qualified.”

Once her testimony was excluded, there was a cascade effect. The statistical extrapolation was based on her review, so the statistical work was also excluded:

“The Court also finds that Plaintiff's extrapolation witnesses, Marna Bogan and Donald Edwards, should be excluded. Since Bogan’s and Edwards’s reports and testimony are based on evidence from Clearwater, which has now been precluded, their basis for postulation is gone.”

This represents a huge lesson about the value of challenging the credibility of experts in cases involving medical necessity. When a contractor uses a reviewer who doesn’t have the same qualifications as the professional rendering the services, it can be worth challenging the reviewer. That applies in a variety of situations, including when a nurse reviewer is used to deny physician services. 

As mentioned above, another factor influencing the judge in this case was the fact that Ms. Clearwater, who is affiliated with AdvanceMed, had asserted that she had no notes about the review. In fact, there was a lengthy notebook – and comments on a 5,000-page spreadsheet – that proved otherwise. She also told the government lawyers that she had asked colleagues to produce their notes, but those lawyers asked her colleagues if anyone had asked them for copies of their notes, and they said “no.” Because of the expert’s statements to the government lawyers, the government had made representations to HCR ManorCare and the court.

The court was understandably troubled when it learned of Ms. Clearwater’s misrepresentations. The court concluded that she was not credible and barred her testimony. This is a good reminder that as part of litigation, lawyers should ask contractors to provide all notes and other documents relevant to the review.

The government has faced a fair amount of criticism for its decision to dismiss the case, but the criticism is baseless. Some have asserted that the government should always allow cases to proceed. That makes no sense. A meritless case wastes the time of the court and the money of the defendants. Bad cases should be sent to pasture as quickly as possible. 

A few people have even claimed that the decision was motivated by the fact that some ManorCare investors contributed to President Trump’s campaign. I doubt the critics read the judge’s decisions about AdvanceMed’s experts. 

The Justice Department’s decision was the proper response to improper conduct by the contractor.  

David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and is a member of the RACmonitor editorial board.

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