Expert Witness Profiler

Tag: Billing

  • Pain Management Expert Witness Overstepped by Offering Opinions on Fraud 

    Pain Management Expert Witness Overstepped by Offering Opinions on Fraud 

    In a civil RICO lawsuit, Plaintiff Allstate Insurance and its affiliates sued Defendants Dr. Ayman Tarabishy and his medical clinic, Ayman Tarabishy, M.D., PLLC, (doing business as Enhance Center). Allstate alleged that the Defendants orchestrated a racketeering scheme to exploit Michigan’s no-fault insurance law by generating and submitting fraudulent medical bills for reimbursement.

    Allstate retained Dr. Wilfred Hynes “to testify regarding the fact, extent, and causation of the alleged services for which Allstate was billed [by the Defendants] relative to patients at issue in this action . . . the medical necessity and reasonableness of the services billed by the Defendants; the billing submitted by the Defendants; and any other subjects or opinions referenced in his report, supplemental report, or in subsequent deposition testimony, including reasonable inferences and summaries arising therefrom.”

    On September 8, 2023, Allstate disclosed Hynes’ initial expert report, where he detailed his findings and opinions after reviewing the Defendants’ treatment and billing records for more than 90 patients involved in the case. Eighteen days later, Allstate submitted a supplemental report in which Hynes included five charts that Allstate might “use at trial to summarize the opinions set forth in detail in [Hynes’] medical expert report.”

    Pain Management Expert Witness

    Dr. Wilfred L. Hynes, M.D.  is a pain-management physician at Tufts Medical Center in Boston, Massachusetts. He is board certified in anesthesiology and pain management. Since 2005, he has been the medical director of the pain management center and co-chair of the pain management committee at Tufts Medical Center in Boston, Massachusetts. He is an award-winning, Harvard-trained pain management physician with a long career in interventional pain-management.

    Hynes is  familiar with the diagnosis and treatment of patients diagnosed with a variety of chronic pain conditions, and the standard of care applicable to the management of these patients. 

    Want to know more about the challenges Wilfred L. Hynes has faced? Get the full details with our Challenge Study report.   

    Discussion by the Court

    Defendant’s Arguments

    The Defendants moved to strike both the original and supplemental reports and sought to exclude Hynes’ testimony at trial, on several grounds:

    (1) Hynes is not board-certified in the specialties of physical medical rehabilitation or brain injury medicine and is not qualified to render opinions about Defendants’ treatments;

    (2) Hynes is not an expert in current procedural terminology (CPT) coding and is not qualified to render opinions about Defendants’ CPT coding or billing;

    (3) Hynes did not prepare the “Supplemental” expert report served on September 26, 2023;

    (4) Hynes’ opinions regarding “fraud” are beyond his purview and he is not qualified to give an opinion or testify about Defendants’ intent;

    (5) Hynes’ reports contain analysis of patients for whom Plaintiffs are not seeking to recover damages and his findings regarding these patients are irrelevant; and

    (6) Hynes’ testimony will not assist the trier of fact and is significantly more likely to mislead a jury.

    A. Hynes’ Opinions on Medical Care

    Defendants argued that Hynes lacked the necessary qualifications and experience to opine on the treatments that Tarabishy provided to patients. Although both doctors are board-certified pain management practitioners, Tarabishy is also board certified in two additional specializations which he regularly practices: physical medicine and rehabilitation (“PM&R”) and brain-injury medicine.

    Hynes is not qualified to testify about every medical procedure Tarabishy performed

    First, Defendants argued that Hynes “has never practiced outside of an academic or hospital setting,” which means unlike Tarabishy, Hynes does not treat patients throughout the entire course of their injuries. Allstate contested this characterization of Hynes’ practice, and Hynes’ own report contradicted it, too. Even if this were true, the Court held that it does not justify excluding Hynes’ opinions.

    Second, the Defendants pointed out that because Tarabishy’s practice is a ‘combination’ of all three of his specialties, Hynes is not qualified to testify about every medical procedure Tarabishy performed.

    To bolster this argument, Defendants cited two provisions of Michigan statutes: Mich. Comp. Laws § 600.2169(1)(a), which requires that experts in medical-malpractice suits practice the same specialty and have the same board certifications as the Defendant-physician; and Mich Comp. Laws § 500.3151(2)(a), which requires the same of physicians conducting an independent medical examination under the No-Fault Act. 

    Allstate pointed out that these state-law provisions have no bearing on the Daubert inquiry, and Defendants provided no authority demonstrating otherwise. The Court agreed.

    Moreover, Defendants did not really explain how pain management is so different from PM&R, such that an expert in one could not testify about the other. Nor did they label any specific opinion of Hynes as one that only a PM&R specialist would be qualified to give. In fact, whatever differences between PM&R and pain management, even Tarabishy acknowledged there is overlap: he testified that, in the context of his practice, “it’s really hard to draw a line where one ends and the other one starts.”

    Hynes is not qualified to opine on Defendants’ assessment, diagnosis, or treatment of brain or neurological injuries

    When Defendants argued that Hynes is not qualified to opine on Defendants’ assessment, diagnosis, or treatment of brain or neurological injuries, Allstate responded that this is a nonissue because “not once in his report does Hynes critique a brain-injury treatment allegedly rendered by the Defendants.”

    While the bulk of medical care at issue in this case is not neurological, the Court held that Allstate’s read of the report is not wholly correct—or at least it hides the ball. Neurological treatments aside, Hynes certainly critiques how Defendants handled diagnostic testing for neurological disorders, especially as related to Magnetic Resonance Imaging (MRIs).

    Hynes went on to opine that “without concerning neurologic deficits, particularly considering the negative head CT scans, there was no indication to routinely proceed with a brain MRI on every patient with headache complaints.”

    While Hynes is no expert in brain injury, he maintained that, based on his “review of the literature” outlined in his report, he could testify as to whether ordering brain MRIs was appropriate.

    Although the factual basis is weak, the Court held that Hynes has seen patients with head injuries, ordered diagnostic testing for some such patients, and reviewed medical literature on when ordering such testing is proper. Therefore,  Hynes has provided a “reasonable factual basis” for his opinions on whether Defendants properly ordered neurological testing like MRIs.

    In sum, Hynes may opine on the bulk of the medical care at issue in this case. The sole caveat is that he may not offer opinions at trial that attempt to interpret the substance of any MRIs related to brain injuries.

    B. Hynes’ Opinions on Billing and CPT Coding

    Defendants also argued that Hynes’ opinions on Defendants’ billing and use of CPT coding exceeded the scope of his expertise.

    The Court, however, noted his decades of experience providing the types of services and treatments at issue in this case—which includes billing and using CPT codes for those services and treatments. This experience alone provides a sufficient basis for Hynes’ testimony. 

    C. Hynes’ Opinions on Fraud

    Hynes accused Defendants of fraud more than once. For instance, he said that Defendants “exhibited clear patterns of health care fraud,” and that they were “fraudulently submitting” bills to Allstate, and that “there was clear evidence of rampant fraud, waste, and abuse of health care resources.”

    According to the Court, Hynes plainly overstepped by offering opinions on fraud because they improperly invaded the province of the jury. When Hynes opined that Defendants “committed health care fraud” by “fraudulently submitting” bills to Allstate, he decided the answer to an ultimate issue for the jury. 

    When Allstate cited Champion v. Outlook Nashville, Inc., 380 F.3d 893, (6th Cir. 2004)  because it supported admitting Hynes’ opinions on fraud, the Court found the case distinguishable. There, the district court permitted an expert to testify about a discrete aspect of police practices—the use of excessive force—despite excessive force ultimately being a question for the jury.  The Sixth Circuit affirmed, given that the expert had extensive and particularized knowledge about the area.

    The Court held that Hynes’ general training for “medicare fraud, waste, and abuse” did not constitute particularized knowledge or expertise about medical fraud.

    D. Hynes’ Supplemental Report

    Defendants argued that Hynes’ supplement is inappropriate under Civil Rule 26(e), which requires parties to supplement discovery disclosures and responses in certain circumstances.

    The supplement stated that its contents “do not alter the opinions set forth in [Hynes’ initial report] in any way, are derived entirely from the opinions set forth [in the initial report], and will be used only to summarize the opinions of [the initial report].”

    However, all the supplement’s information comes from Hynes’ initial report—which no one disputes he prepared himself. While Allstate formatted the supplement; by providing all the supplement’s underlying findings and opinions, the Court held that Hynes helped prepare it.

    Defendants pointed out 3 instances (out the supplement’s 575 entries) where the “date of treatment” listed differs from the date listed in Hynes’ initial report. They added that  “Allstate’s contradictory positions . . . have made it unreasonably difficult for Defendants to prepare their defense or determine what Allstate claims as its damages.”

    Although the supplement requirement was not intended “to allow parties to spring late surprises on their opponents under the guise of a ‘supplement to earlier disclosures,’” the Court held that Allstate has attempted no such thing. Moreover, these minor inconsistencies would not substantially mislead or confuse the jury, requiring exclusion under Federal Evidence Rule 403. 

    E. Patients Not Listed in Allstate’s Damages Chart

    Defendants argued that Hynes’ opinions about treatments provided to patients not listed in Allstate’s “damages” chart were irrelevant.

    However, the Court held that Hynes’ testimony was relevant to Allstate’s RICO claim, even for patients not included in the damages chart. The Court emphasized that a RICO claim under 18 U.S.C. § 1962(c) required proving “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.”  

    A pattern of racketeering activity requires related predicate acts of racketeering which continued during a substantial period or which by their nature forebode of future criminal conduct. The Court held that Hynes’ opinion on all patients is relevant to proving a pattern of racketeering activity by Defendants. 

    In other words, Hynes’ testimony about whether Defendants acted similarly across the full range of patients discussed in his expert report goes to this pattern element. Thus, his opinions as to patients not listed in Allstate’s damages chart will not be stricken.

    Held

    The Court granted the Defendants’ motion to strike Wilfred Hynes’ testimony to the extent that Hynes, may not offer opinions labeling Defendants’ conduct as “fraud” in any way; nor may he offer opinions on the substance of MRIs related to brain injuries. The motion was denied in part in all other respects.

    Key Takeaways:

    i) Qualifications of Hynes – Defendants argued that Hynes lacked the necessary qualifications to testify as an expert. The Court rejected this claim, ruling that his expertise in pain management qualified him to opine on the medical care at issue in this case, except for brain-injury-related MRIs.

    ii) CPT Coding and Billing Practices – Defendants challenged Hynes’ qualifications to testify about their billing practices and use of CPT codes, arguing that his opinions exceeded his expertise. The Court disagreed, ruling that Hynes’ decades of experience provided a sufficient foundation for his testimony.

    iii) Legal Conclusions – Defendants objected to Hynes labeling their conduct as “fraud.” The Court agreed and prohibited him from characterizing Defendants’ actions as fraudulent, ruling that such determinations fell into the jury’s province.

    iv) Supplemental Report – Defendants sought to exclude Hynes’ supplemental report, asserting that he did not personally prepare it. The Court disagreed because the supplement could not exist without Hynes first generating each of the findings and opinions in his initial report. Even if Allstate formatted the supplement; by providing all the supplement’s underlying findings and opinions, it was Hynes who helped prepare it. 

    Case Details:

    Case Caption:  Allstate Insurance Company Et Al V Ayman Tarabishy, Mc., Pllc Et Al
    Docket Number: 2:22cv12736
    Court: United States District Court for the Eastern District of Michigan, Southern Division
    Order Date: January 31, 2025
  • Medical Billing Expert Witness’ Report Precluded Because it Reviews the Amounts Previously Billed

    Medical Billing Expert Witness’ Report Precluded Because it Reviews the Amounts Previously Billed

    This matter stems from a motor vehicle accident that occurred on May 21, 2023 when the vehicle driven by Plaintiff, Juwan Brown, and occupied by his parents, Clarence and Tawanna Brown, was struck by a commercial vehicle driven by Dashawn Brooks.

    The commercial vehicle was owned by Penske Truck Leasing Co. and leased by Defendant Mayflower Laundry & Linen. As a result of the accident, Plaintiffs have alleged that they have sustained various injuries and damages.

    The Defendant retained Yvonne Dailey “to coordinate an analysis of the billing and reimbursement dates for services provided to [Plaintiffs] due to” the motor vehicle accident at issue in this case.

    In her report, Dailey compared the amounts charged for Plaintiffs’ medical care arising from the accident with the amounts permitted by the fee schedules under the New Jersey Personal Injury Protection (“NJ PIP”) fee schedule and Pennsylvania’s “Act 6” schedule. However, Dailey’s analysis did not include the amounts that were actually paid for the services.

    Plaintiffs challenged the reliability, relevance, and fit of Dailey’s opinion, asserting that her testimony should be precluded under Federal Rule of Evidence 403. Plaintiffs argued that the charges reflected in Dailey’s report “have already been reconciled with Plaintiffs’ health insurers [and] will be presented to the jury in the form of liens which will be sanitarily presented in compliance with the collateral source rule.

    Medical Billing Expert Witness

    Yvonne Dailey has over 20 years of experience in the medical billing and coding field. As a Certified Professional Coder (CPC) and Certified Professional Biller (CPB), she helps clients understand the importance of accurate coding and documentation in the reimbursement process.

    Her specialties include Infectious Disease, Family Practice, Endocrinology, Interventional Radiology, Internal Medicine, OB-Gyn, Chiropractic, Mental Health, Podiatry, Substance Abuse, Oncology, Hematology, Ophthalmology, Dental (medical side), and Orthopedics.

    Want to know more about the challenges Yvonne Dailey has faced? Get the full details with our Challenge Study report.   

    Discussion by the Court

    The defense expert created spreadsheets identifying the charges from Plaintiffs’ medical providers, and opining as to the allowable amounts under NJ PIP and Act 6 for each charge. However, as Plaintiffs pointed out, Plaintiffs’ health and auto insurers have already paid for the treatment which Dailey analyzed.

    Under Pennsylvania law, “if the exact amount of [past medical] damages has been decided, or payment has been made and accepted in full, the Plaintiff’s recovery is limited to that amount and there is no issue for the factfinder to determine.”

    Plaintiffs asserted that Dailey’s report reviews the amounts previously billed which have already been paid and Defendants did not dispute this characterization. Because the measure of damages for past medical damages is the amount accepted by the provider as payment in full and that amount is readily available, the Court concluded that Dailey’s analysis is not relevant to any issue the jury must decide and would not aid the jury.

    Held

    The Court granted the Plaintiffs’ motion to preclude the testimony of Yvonne Dailey.

    Key Takeaways

    Under Pennsylvania law, “if the exact amount of [past medical] damages has been decided, or payment has been made and accepted in full, the Plaintiff’s recovery is limited to that amount and there is no issue for the factfinder to determine.”

    Because the measure of damages for past medical damages is the amount accepted by the provider as payment in full and that amount is readily available, the Court concluded that Dailey’s analysis is not relevant to any issue the jury must decide and would not aid the jury. Therefore, Dailey’s analysis was precluded.

    Please refer to the blog previously published about this case:

    Nursing Expert Witness’ Opinions on the Propriety of Treatment Recommendations Admitted

    Case Details:

    Case Caption: Brown Et Al V. Brooks Et Al
    Docket Number: 5:23cv2966
    Court: United States District Court, Pennsylvania Eastern
    Order Date: November 22, 2024
  • Medical Billing Expert Witness’ Opinions on the Reasonable Value of the Bills Admitted

    Medical Billing Expert Witness’ Opinions on the Reasonable Value of the Bills Admitted

    Plaintiff Wendy Marie Henshaw alleged that she slipped and fell on a liquid substance on October 28, 2021, at the Defendant Wal-Mart’s premises.

    Plaintiff filed a motion to strike Defendant’s medical billing and coding expert, Kathleen DePaolo, MSHI, RHIA, CCS. DePaolo, who is a “Certified Coding Specialist,” intended to offer expert testimony regarding the reasonable market value of Plaintiff’s medical bills. DePaolo’s ultimate opinion is that, although Plaintiff’s medical bills amount to $264,324.76, the reasonable value of those bills is $90,053.36.

    Reasonable Value of Plaintiff’s Medical Bills

    DePaolo’s expert report includes item-by-item analyses of Plaintiff’s medical providers’ charges. To calculate the reasonable value of Plaintiff’s medical bills, DePaolo used a “three-pronged analysis.”

    First, DePaolo audited Plaintiff’s medical bills to ensure that each charge was correctly coded and complied with the “applicable medical billing and coding rules, standards, and federal regulations.” If Plaintiff’s providers failed to code an expense (or if she determined that a provider applied an incorrect code), then DePaolo applied the code that she deemed to be appropriate based on her review of Plaintiff’s medical records.

    Second, DePaolo “determined the reasonable marketplace value for the same services within the same community within in the same year.” To calculate the reasonable value of a line-item charge, DePaolo generally relied on three pricing databases: (1) Physicians’ Fee Reference (Yale Wassermann, DMD Medical Publishers, Ltd); (2) Medical Fees (Context4Healthcare Inc. Practice Management Information Corporation); and (3) Find-A-Code.

    DePaolo specifically reviewed the seventy-fifth percentile value for each code across the three databases, and she identified the median value to be the “national usual and customary value.” She then multiplied the “national usual and customary value” by a geographic modifier based on Plaintiff’s providers’ zip codes. DePaolo concluded that the resulting number was the “reasonable value” for each line item.

    Third, DePaolo conducted a market analysis of outpatient service prices in the Orlando area. To identify additional evidence and further validate the results of her audit, DePaolo reviewed published, hospital-specific data listing local outpatient service prices.

    Medical Billing Expert Witness

    Kathleen DePaolo is a medical billing auditor with specialized expertise in inpatient hospitalization billing including DRG, ICD-10 diagnostic code classification and pricing methodologies. Her expertise lies in medical billing, health information, and revenue data analytics.

    Want to know more about the challenges Kathleen DePaolo has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    The Plaintiff argued that the Court should exclude DePaolo’s testimony regarding the reasonable market value of Plaintiff’s medical bills because: (1) DePaolo’s opinions are unreliable conduits of hearsay upon hearsay; (2) her opinions and methodology cannot be tested; and (3) her opinions will not assist (and pose an unreasonable risk of misleading) the jury.

    DePaolo’s opinions are unreliable conduits of hearsay upon hearsay

    According to the Court, the Plaintiff failed to recognize that (1) Rule 803(17) of the Federal Rules of Evidence states that “[m]arket quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations” are not excluded by the hearsay rule and (2) Rule 703 provides that an expert may rely on inadmissible facts or data in forming her opinion if experts in her particular field would reasonably rely on the same evidence.

    The Plaintiff primarily claimed that DePaolo’s reliance on the three pricing databases is insufficient, considering that DePaolo does not know how the pricing databases compile their data. However, DePaolo and other courts have explained that experts in the medical billing industry routinely rely on the three databases that DePaolo used.

    DePaolo’s opinions and methodology cannot be tested

    The Plaintiff specifically argued that DePaolo’s opinions and methodology cannot be tested because DePaolo (1) declined to demonstrate how she queried the pricing databases during her deposition (because she considered the databases to be proprietary) and (2) merely referenced two peer review studies in her Expert Report.

    Although the average person lacks access to the pricing databases that  DePaolo used, another medical billing and coding expert could surely replicate DePaolo’s calculations. Additionally, Defendant included two letters— authored by highly credentialed individuals—reflecting separate studies of DePaolo’s procedures with its Response.

    The Court concluded that the Plaintiff’s argument that DePaolo’s opinions and methodology cannot be tested is meritless.

    DePaolo’s opinions and testimony will not assist the jury

    Despite the Plaintiff’s argument to the contrary, DePaolo’s testimony plainly relates to the reasonable value of Plaintiff’s medical expenses.

    The Court notes that there is a split in this district regarding the admissibility of medical billing and coding experts’ testimony and that it has previously excluded a medical billing and coding expert because “she provided no analysis as to how she reached her opinions and merely state[d] her opinions in a conclusory fashion.”

    However, considering the detailed nature of DePaolo’s Expert Report (as well as the complicated healthcare billing landscape in United States), the Court is satisfied that DePaolo’s testimony and opinions are sufficiently reliable, relevant, and admissible in this case. Therefore, the Plaintiff, once again, failed to show that DePaolo’s opinions and testimony will not assist the jury.

    Held

    The Court denied the Plaintiff’s motion to strike Kathleen DePaolo’s opinions as to reasonable value of the bills.

    Key Takeaway:

    DePaolo submitted a detailed report on the reasonable market value of the Plaintiff’s medical bills. Her reliance on the three pricing databases was deemed sufficient, and her methodology could be tested despite the Plaintiff’s reservations. Given the complicated healthcare billing landscape in the United States, her testimony, which plainly relates to the reasonable value of the Plaintiff’s medical expenses, could assist the jury.

    Case Details:

    Case Caption: Henshaw V. Wal-Mart Stores East, LP
    Docket Number: 6:23cv2388
    Court: United States District Court, Florida Middle
    Order Date: October 21, 2024
  • Expert Witness’ Limited Testimony on Medical Billing Considered Unhelpful

    Expert Witness’ Limited Testimony on Medical Billing Considered Unhelpful

     On June 27, 2019, Plaintiff was involved in a motor vehicle accident with an underinsured driver. At the time of the accident, Plaintiff was covered by an Uninsured and/or Underinsured Motorist (“UM”) policy issued by Defendant. Plaintiff issued a demand to Defendant for settlement at policy limits. On August 26, 2020, Plaintiff filed a civil remedy notice (“CRN”) against Defendant, demanding $100,000 in UM benefits and asserting medical expenses exceeding $145,000.

    Defendant retained Nicole Bonaparte to provide expert opinions and testimony on medical coding and billing. Specifically, the parties engaged Bonaparte to testify about the reasonableness of Plaintiff’s medical expenses and the billing practices used in connection with those charges. In her report, she opined that “the charges in this case were above the usual, customary, and reasonable charges in the community for the subject procedures and services.” The Plaintiff then moved to strike Bonaparte as an expert so as to preclude her from testifying at trial.

    Medical Billing Expert Witness

    Nicole Deniene Bonaparte, C.P.C., became a Certified Professional Coder after completing her Medical Coding Specialist Program in 1998 at the National School of Technology, North Miami Beach. She earned an A.A. degree from Miami-Dade Community College the same year. In 2000, she completed education classes, including ESOL, at Nova Southeastern University. She later received a Corporate Etiquette Consultant Certificate of Completion, specializing in Healthcare Protocol from the Protocol School of Palm Beach. She has extensive knowledge of medical terminology, diseases, surgeries, and insurance and medical billing terminology.

    Get the full story on challenges to Nicole Bonaparte’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Plaintiff primarily challenges the helpfulness and reliability of Bonaparte’s testimony. The Plaintiff argued that the Court should exclude Bonaparte’s testimony for two reasons. First, they claim her proposed testimony is irrelevant and will not assist the trier of fact in deciding the ultimate issue in this case. Second, they assert that her opinions are not based on reliable methodology.

    Plaintiff contended that his medical damages were already litigated in the Underlying Lawsuit, and Defendant is not entitled to relitigate Plaintiff’s damages in this case. In response, Defendant argued that “based on the record and established case law, Bonaparte satisfies each prong necessary to permit her testimony.” 

    A. Helpfulness

    I. Relevance

    The Plaintiff argued that the Court should exclude Bonaparte’s testimony because it was irrelevant and would not assist the jury. The Plaintiff contended that the probative value was outweighed by the risk of unfair prejudice and confusion. Also, the testimony could raise doubts about an issue already decided in the underlying case. Defendant countered that Bonaparte’s testimony was essential to “demonstrate that its decisions were based on an objective evaluation of the medical charges and were not made in bad faith.”

    However, the Court sided with Plaintiff and held that Bonaparte’s testimony regarding the reasonableness of Plaintiff’s medical expenses and the billing practices used in connection with those charges would not be helpful to the jury and should be excluded. It noted that courts throughout the Eleventh Circuit, including the Eleventh Circuit Court of Appeals, have routinely excluded medical coding and billing experts under Daubert and Federal Rule of Evidence 403. The Court found such testimony irrelevant and unhelpful, as experts in this area are typically unqualified to testify as to the reasonable charges for the myriad medical procedures involved in injury cases. 

    II. Qualifications

    Bonaparte’s curriculum vitae reflects that she holds certificates in medical coding, but does not have a medical education or training. Because Bonaparte holds no medical qualifications that would support her testimony as to the reasonableness of the medical procedures, the Court finds that her limited testimony on medical billing/coding would not be helpful to the jury.

    However, Defendant disputed this conclusion, arguing that “an expert’s analysis is required to assist the trier of fact to assess the reasonableness of the medical charges at issue.”

    However, Bonaparte is being offered to opine about the reasonableness of charges for medical services assumed to have been delivered rather than about whether the medical services billed reflected medical services delivered. In conclusion, the Court held that Bonaparte’s testimony would not be applicable where there is merely “a conflict over the reasonableness of charges for medical services, assumed to have been delivered.”

    Held

    The Court granted the Plaintiff’s Daubert motion to strike Nicole Bonaparte as an expert and preclude her from testifying at trial in this matter. 

    Key Takeaways:

    • Bonaparte’s limited testimony on medical billing/coding would not be helpful to the jury because she holds no medical qualifications that would support her testimony as to the reasonableness of the medical procedures.
    • Because there is a conflict over the reasonableness of charges for medical services, assumed to have been delivered, Bonaparte’s testimony would not be applicable because Bonaparte is being offered to opine about the reasonableness of charges for medical services assumed to have been delivered rather than about whether the medical services billed reflected medical services delivered.

    Case Details:

    Case Caption: Collazo v. Progressive Select Ins. Co.
    Docket Number: 1:23cv22953
    Court: United States District Court for the Southern District of Florida
    Order Date: September 23, 2024
  • Medical Billing Expert Witness’ Testimony Does Not Breach Georgia’s Collateral Source Rule

    Medical Billing Expert Witness’ Testimony Does Not Breach Georgia’s Collateral Source Rule

    This case arises from a high-speed, single vehicle collision into a tree. After the collision, the vehicle caught fire and exploded. Plaintiff Jade Burch was the front seat passenger in the vehicle.

    As a result of the collision, Burch broke her pelvis, femur, tibia, and seven ribs. She required emergency leg surgery. Burch also suffered burns on her left foot, which required a skin graft. To date, Burch has incurred over one million dollars of medical expenses and will have at least one more surgery in the future.

    Defendant hired Marilyn Pacheco to give testimony “regarding the reasonableness of medical charges for medical services provided.

    Pacheco opines that “the $900,343.05 in billed charges on or after 10/25/21 is excessive and the reasonable value of the past medical care received by Plaintiff is $429,553.74.” Plaintiff argued Pacheco’s opinions must be excluded because she is not qualified to offer them, they are unreliable and unhelpful to the trier of fact under Fed. R. Evid. 702 and Daubert and its progeny, and her opinions impermissibly inject collateral source into this case under Georgia law.

    Medical Billing Expert Witness

    Medical Billing Expert Witness

    Marilyn Godoy Pacheco has over 30 years of experience in establishing medical charges, medical billing, collections, pricing, and third-party payer contract negotiations and has been qualified and has testified as an expert forensic medical bill auditor in state and federal trials and arbitrations on approximately 638 occasions. She has 18 years of experience managing the medical billing department of a medical practice with 10 physicians; became a Certified Professional Coder from the American Academy of Professional Coders in 2012; founded E&M Billing Services, a medical billing service for multiple independent physician practices filing 1,000 claims per month, in 2004; been the director of Miller Children’s Subspecialty Group since 2005 where she provides oversight of the medical billing department, contract negotiations, and credentialing of 26 specialty medical groups with 90+ physicians; and since 2012, she has provided expert testimony for medical billing and auditing services for Elevate Services, Inc.

    Get the full story on challenges to Marilyn Pacheco’s expert opinions and testimony with an in-depth Challenge Study.  

    Discussion by the Court

    A. Pacheco’s Qualifications

    Plaintiff first challenged Pacheco’s qualifications, arguing she is not qualified to offer opinions about what an Augusta hospital (or any Georgia hospital) should have charged for Plaintiff’s medical treatment. Plaintiff argued while Pacheco may be qualified to assign the right billing codes to the medical services provided at Doctor’s Hospital, she is not qualified to use those codes to determine a reasonable fee in this case. However, the Court held that the Defendant has met its burden of demonstrating Pacheco is qualified as a medical billing expert.

    Plaintiff pointed out that Pacheco held only a high school diploma and lacked formal training in finance or economics. Moreover, she had no professional experience with pricing medical procedures and services in the state of Georgia. Despite this, Pacheco’s extensive experience in medical billing qualified her as an expert. She asserted that no specific academic degree existed for medical billing professionals, who do not need to be physicians or healthcare providers. As a medical billing expert she has specialized knowledge on industry-specific requirements “including ICD-9, ICD-10, CPT, HCPCS, APC, DRG, and NDC coding, rules, and regulations related to each code set and regional/geographic pricing.”

    B. Pacheco’s Methodology and Reliability

    The Court found Pacheco’s methodology is sufficiently reliable for admissibility, and the weaknesses in the data she relies on in conducting her methodology is appropriately addressed on cross examination. To form her opinions, Pacheco used a multi-step process to review and audit the medical charges to determine the reasonable value of the services provided. 

    First, Pacheco analyzed Plaintiff’s past medical records, billing data, and medical cost benchmarking resources over the period of Plaintiff’s treatment in Augusta.

    Second, she applied geographic-specific pricing to determine the reasonable marketplace value for the same services within the same community within the same year.

    Third, she conducted a market analysis of the local medical community for similar services based on published data “to identify additional evidence of reasonable marketplace value and further validate the results of the audit.”

    Plaintiff argued Pacheco’s methodology simply consists of plugging codes into databases from which she picks the “reasonable” value for the medical services; she cannot explain the origin of the data in these databases; she did no independent research in the Augusta or Georgia healthcare market to determine what hospitals charge for similar services; and therefore neither the Court nor the jury can test whether the databases are accurate and reliable. But these arguments are appropriately addressed on cross examination.

    Moreover, the methodology and data sources Pacheco employed have been peer reviewed in 2013 by Gerard Anderson, Ph.D., a widely known expert in the field of healthcare services pricing, and again in 2023 by a panel of experts including Professor Emeritus Gerald F. Kominski, Ph.D,; Orthopedic Surgeon Stewart L. Shanfield, M.D.; QA Auditor and Coder Vivian Washington, CPC, COC, CPMA, CRC, CPC-1; and Healthcare Administrator Andrew Bowen who found the methodology “sound, reliable, and applied appropriately using industry standard data.”

    C. Helpfulness to the Jury

    The Court is also unpersuaded by Plaintiff’s contention that Pacheco’s opinions are not helpful to the jury. The average lay person does not know what hospitals charge for healthcare services or understand how they generate the prices. Pacheco’s opinions address coding issues and whether the correct billing codes were applied, removing charges for improper packaged services, which is beyond the understanding of the average lay person and will assist the jury in determining whether Plaintiff’s medical expenses are reasonable. 

    D. Collateral Source Rule

    The collateral source rule bars the Defendant from presenting any evidence as to payment of expenses of a tortious injury paid for by a third party and taking any credit toward the Defendant’s liability and damages for such payments.” But the Eleventh Circuit has rejected this challenge to similar medical billing experts, explaining “Defendants were properly allowed to argue that medical charges were unreasonably high,” and such expert testimony “did not violate the collateral source rule.” Here, Pacheco does not opine that the medical expenses should be reduced by insurance payments, write-offs, or write-downs.

    The Court held that her testimony as to how the charged fees compare to the market is relevant to the reasonableness inquiry and does not “purport to present evidence that a third party paid for or should pay for the expenses of the tortious injury allegedly caused by Defendant’s negligence; accordingly the collateral source rule does not apply.”

    Held

    In conclusion, the Court denied Plaintiff’s motion to exclude the testimony of Defendant’s medical billing expert witness, Marilyn Pacheco.

    Key Takeaway:

    Not only is Pacheco qualified as a medical billing expert, she used a multi-step process to review and audit the medical charges to determine the reasonable value of the services provided followed by a detailed analysis of Plaintiff’s past medical records, billing data, and medical cost benchmarking resources over the period of Plaintiff’s treatment in Augusta. Moreover, her opinions address coding issues and whether the correct billing codes were applied, removing charges for improper packaged services, which is beyond the understanding of the average lay person and will assist the jury in determining whether Plaintiff’s medical expenses are reasonable.

    Case Details:

    Case caption: Burch v. Cracker Barrel Old Country Store, Inc.
    Docket Number: 5:22cv316
    Court: United States District Court for the Middle District of Georgia, Macon Division
    Dated: September 30, 2024
  • Pain Management Expert Witness’ Testimony About Billing for Medical Examinations Admitted

    Pain Management Expert Witness’ Testimony About Billing for Medical Examinations Admitted

    This matter involves the Plaintiff insurers’ claim that Defendants unlawfully billed for medically unnecessary and illusory services, misrepresented the nature and extent of the services, and operated in violation of various laws specific to the healthcare and/or insurance sector.

    According to the Plaintiff, Titan Defendants agreed to refer patients to the Stein Defendants in exchange for the Stein Defendants providing the patient with a false EMC diagnosis, which enabled the Titan Defendants to provide medically unnecessary chiropractic, physical therapy, and other services to the patient and to receive reimbursement for these services in excess of the ordinary $2,500 limit.

    Defendants Joel D. Stein, D.O., P.A. and Joel D. Stein, D.O. (collectively the “Stein Defendants”) procured an expert report from James Padula, which includes the following three opinions that Plaintiffs seek to exclude:

    • The billing submitted through Stein P.A. to GEICO by the Stein Defendants was “appropriate.”
    • “[T]he therapies and treatments provided [by the Stein Defendants to GEICO insureds] were supported by the examinations and the results of diagnostic testing, and therefore medically necessary . . . .”
    • Based on the subjective complaints of the insureds and the objective findings from the testing and examinations, the Stein Defendants’ EMC findings were warranted.

    Pain Management Expert Witness

    James Padula has over 25 years of experience in treatment of spine and joint pain. Padula completed his Bachelor’s Degree at Villanova University. He graduated from New York College of Osteopathic Medicine with Honors.
    He completed his internship at Maimonides Medical Center and residency at North Shore University Hospital at Glen Cove. Padula is trained in interventional Pain Management and Minimally Invasive Surgeries. He also trains physicians in the field of pain management.

    Padula is Board Certified in Pain Management.

    Get the full story on challenges to James Padula’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Plaintiffs argued that Padula’s opinions should be excluded as not based on “sufficient facts and data” under Rule 702 and, therefore, unreliable because he did not review the documents that he would have needed to review in order to render a reliable opinion on the subject topics. In particular, Plaintiffs claimed that Padula only reviewed treatment records for initial examinations, which would provide him a basis for rendering an opinion on whether the billing for initial examinations at Stein P.A. was appropriate, and nothing more.

    Padula’s export report stated the following regarding what he reviewed: “I was provided with, and reviewed, 36 [patient files], randomly selected by a blind draw [from the patient files included in the Second Amended Complaint].”

    Padula’s Expert Witness Report and Declaration are Inconsistent with Parts of his Deposition Testimony

    In his declaration, Padula stated that he reviewed 20 of the 95 claims files compiled by Plaintiffs for their expert witness Merritt’s review. These claim files contained “the medical records of all of the treating doctors and results of diagnostic testing tests, and would have contained other relevant data to this analysis such as crash reports, the results of IME exams, Peer Review Reports, [and] Explanations of Review.”

    Plaintiffs cited excerpts from Padula’s deposition testimony to argue that Padula only reviewed treatment records for initial examinations performed at Stein P.A., despite his opinions relating to a broader scope of services and billing. However, the Court held that Padula’s expert witness report and declaration describe a review process that would provide a reliable factual basis by which Padula could opine on the subject issues. Also, to the extent Padula’s expert witness report and declaration are inconsistent with parts of his deposition testimony, this goes to Padula’s credibility, not the admissibility of his opinions.

    While Padula subsequently appears to have contradicted himself in his deposition testimony with respect to certain materials, Plaintiffs are asking the Court to credit one source of evidence over another, which is typically a task reserved for the jury. Even further, for many of the materials Padula testified in his deposition to not having reviewed, Padula separately claimed to have reviewed notes summarizing these materials.

    Held

    The Court denied Plaintiffs’ motion to exclude opinions of Stein
    Defendants’ expert James Padula, D.O.

    Key Takeaway:

    Padula’s expert witness report and declaration might be inconsistent with parts of his deposition testimony but only the jury can ask the Court to credit one source of evidence over another. The Court believed that Padula’s expert witness report and declaration describe a review process that would provide a reliable factual basis by which Padula could opine on the subject issues.

    Case Details:

    Case Caption: Government Employees Insurance Co. Et Al V. Titan Wellness Center Of Fort Myers, L.L.C. Et Al
    Docket Number: 0:22cv61648
    Court: United States District Court for the Southern District of Florida
    Order Date: August 8, 2024