Plaintiff, Robert Rone (“Rone”) asserted claims against Kiesha Pettway, RN, and Felicia Crawford, CRNP, for alleged violations of the Fourteenth Amendment of the United States Constitution pursuant to 42 USC § 1983 relating to Rone’s incarceration at the Mobile County Metro Jail on May 7, 2021.
Crawford and Pettway filed a motion to exclude the testimony of Robert’s purported expert, Ramzy Rimawi, M.D., pursuant to Fed. R. Evid. 702.
Internal Medicine Expert Witness
Ramzy Husam Rimawi, M.D. received his M.D. from Ross University School of Medicine, after which he completed his Internal Medicine internship and residency training at NYU Lutheran Medical Center, followed by two clinical fellowships in Critical Care Medicine and Infectious Diseases.
He is triple American Board certified in Internal Medicine, Infectious Diseases and Critical Care Medicine.
Crawford and Pettway argued that Rimawi’s opinions did not assist the Court with the decision as to whether Crawford and Pettway were deliberately indifferent to Robert’s serious medical need. Crawford and Pettway argued that Rimawi did not know the actions or inactions that were taken by either of them and he did not analyze the medical care and treatment they provided to Rone.
Indeed, in Robert’s response to the motion to exclude, he acknowledged that Rimawi “does not know what the nurse Defendants did, what the jail or NaphCare policies are, or even what deliberate indifference is” and he is solely a causation expert in this matter, who opined the stress that Robert experienced from his arrest and surrounding events caused him to develop shingles and chronic postherpetic neuralgia, as well as suffer symptoms consistent with post-traumatic stress disorder. These may be effects, but this opinion is not relevant to the claims.
Since Rimawi’s expert opinions are limited to medical effects and do not address whether Crawford and Pettway were deliberately indifferent to Robert’s serious medical need, they are not relevant to the claims. Rather, they would only be relevant as to any damages. Since the Court determined summary judgment is granted on the claims for deliberate indifference to a serious medical need, the motion to exclude was denied.
Held
The Court denied Kiesha Pettway and Felicia Crawford’s rule 702 motion to exclude the testimony from Plaintiff’s purported expert Ramzy Rimawi, M.D.
Key Takeaway
The district court’s objective is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.
Plaintiff Michael Swartzendruber claimed that Defendants United Healthcare Insurance Company and United Healthcare of the Mid-Atlantic, Inc. (collectively “United”), and Defendants Sentara RMH Medical Center and RMH Medical Group, LLC (collectively “Sentara”) overcharged him for hospital services and/or by making misrepresentations about the charges for his blood tests.
On each occasion, Swartzendruber’s blood was drawn at a Sentara satellite outpatient location and tested at Sentara’s main hospital location. Sentara billed, and United processed and reimbursed, charges for medical services based on rates associated with the main hospital location as opposed to rates of certain providers operating at the satellites.
Plaintiff filed a motion to exclude the expert testimony of Defendants’ expert, Kristina Kahan. Kahan was retained to opine on whether or not the health insurance claims at issue in this case were properly billed.
Medical Coding Expert Witness
Kristina B. Kahan is a Registered Nurse, Certified Professional Coder, and senior managing director at Ankura Consulting with decades of clinical, compliance, and coding experience in the healthcare industry.
She holds multiple coding certifications: Certified Professional Coder (“CPC”), Certified Outpatient Coder (“COC”), and Certified Risk Adjustment Coder (“CRC”).
To begin with, Plaintiff challenged the relevancy and helpfulness of Kahan’s opinions, and disputes that Kahan has offered a sufficient basis on which to offer her opinions.
a) Basis for Opinions
In her report, Kahan concluded that Sentara properly submitted claims for the services at issue in this case and that United properly adjudicated the claims it received from Sentara.
Specifically, Kahan concluded that Sentara appropriately billed the services rendered as originating from Sentara RMH Medical Center because the services were “performed at off-campus locations of RMH Medical Center and the blood testing was performed at RMH Medical Center’s main hospital location” and thus constituted “facility services.”
Kahan concluded that Sentara properly billed and United properly adjudicated the claims. In making these conclusions, Kahan evaluated Sentara RMH Medical Center’s hospital certification and Medicare Provider Enrollment, Chain, and Ownership System information. As a result, the Court found that Kahan has developed sufficient bases on which to support her opinions.
b) Relevancy and Helpfulness
Defendants asserted that Kahan’s report addressed material aspects of the case—whether Sentara appropriately submitted the claims and whether United appropriately adjudicated them.
However, Plaintiff argued that Kahan’s report is not helpful to the Court because Kahan offered no testimony that is helpful or necessary for the Court to interpret the contract at issue.
The Court found that the Kahan Report presented relevant and helpful evidence as it served to assist the Court in understanding the healthcare claims submission and adjudication processes, including the relevant regulations governing these processes, such that the Court is better equipped to address the issues in dispute in this case.
Held
The Court denied the Plaintiff’s motion to exclude Defendants’ expert Kristina B. Kahan.
Key Takeaway:
Basically, the parties are correct that the Court can read and interpret the contracts at issue, and the Kahan Report does not improperly delve into the world of contract interpretation. Thus, the Court may consider the Kahan Report for its value in understanding the broader environment of the instant case.
Case Details:
Case Caption:
Swartzendruber V. Sentara RMH Medical Center Et Al
This lawsuit stems from claims of breach of contract and statutory and common-law bad faith.
It all started when Plaintiff, Paul Schulz, was injured when his motorcycle struck an oil spill in the roadway, causing the front tire to slide out and the motorcycle to overturn. Shortly thereafter, Schulz filed a claim with his insurer, Shelter Mutual Insurance Company (“Shelter”), for uninsured/underinsured motorist (“UIM”) coverage. After speaking with Schulz about the accident and the injuries he sustained, the claims adjuster determined Schulz was 100% at fault for the accident and denied coverage. When Schulz hired an attorney, Shelter agreed to consider any other information that might bear on the claim and ordered the police report. Nine days later, Shelter again denied the claim on the basis that Schulz was more than 50% at fault.
Defendant filed a motion to strike certain opinions of Plaintiff’s industry standard expert Brian Seigal.
Insurance Expert Witness
Brian Seigal has been involved in the insurance industry throughout his career since 1995, working in and being responsible for claims departments. He has a multi-line background in P & C and Health Insurance. He has managed claims departments for carriers and TPAs, with experience spanning primary, excess, and reinsurance levels. Over the years, he has managed and trained hundreds of adjusters and has been involved with thousands of claims. He has also held department reserve and settlement authority.
Seigal should be precluded from relying on averments in Shelter’s amended answer to the complaint
Shelter first argued Seigal should be precluded from relying on averments in Shelter’s amended answer to the complaint to draw conclusions about the adequacy vel non of Shelter’s investigation. Essentially, in response to a series of allegations regarding the cause of the crash, the nature of Schulz’s injuries, and Shelter’s initial investigation, Shelter responded that it was without sufficient information to admit or deny those allegations. Seigal opined these answers demonstrate Shelter’s investigation was inadequate because they suggest Shelter was unclear as to the basic facts of the accident, the nature and extent of Schulz’s damages, and the results of its own investigation.
The Court held that the relevant facts regarding Shelter’s initial investigation are recited in Shelter’s claim file notes and were the subject of inquiry at the 30(b)(6) depositions of the corporate representatives. Expert testimony regarding Shelter’s pleadings about these same matters therefore also would be needlessly cumulative and wasteful of limited trial time.
Seigal’s opinion suggests Shelter’s investigation was unreasonable for failing to engage experts to vet Schulz’s claim prior to the initiation of litigation
Seigal stated there exist a variety of tools of which a carrier may take advantage to fulfill its duty of reasonable investigation, and while there is no formulaic approach, not pursuing a particular investigative avenue may indicate a lack of good faith in particular circumstances. Seigal suggests this case presented a circumstance in which the adjuster should have engaged one or more experts as part of the investigation of the claim.
Shelter points out that the insured bears the initial burden of producing sufficient evidence to suggest his damages were caused by an event that comes within the coverage of the policy.
The Court held that it is not objectionable for Seigal to opine that Schulz’s case was one which warranted the retention of one or more experts as part of Shelter’s investigation.
Seigal testified that Shelter’s attempt to condition payment of Schulz’s policy limits on his execution of a release was impermissible and unreasonable
Shelter sought to preclude Seigal from testifying that Shelter’s attempt to condition payment of Schulz’s policy limits on his execution of a release was impermissible and unreasonable.
Shelter attached a Release and Trust Agreement to his settlement letter which, inter alia, would have required Schulz to release Shelter from “all liability under any Uninsured Motorist/Underinsured Motorist/Uninsured Motorist Property Damage policy provisions for bodily injury, sickness, disease, or property damage (collectively “damages”) arising from the accident.”
The Court denied the motion to exclude this portion of Seigal’s testimony because the insurer breaches its duty not to unreasonably delay or deny payment of undisputed benefits, even if additional benefits remain in dispute. Shelter’s recommendations with regard to the payment of benefits suggested that Shelter acknowledged Schulz was entitled to a payment of more than $138,000, but suggested withholding the remainder of the policy limits until he signed a release.
Seigal opined, in regard to the withholding of the Fisher payment, that “other courts in Colorado have dealt with similar issues and provided orders against carriers who utilized these practices”
Lastly, and relatedly, Shelter objected to Seigal testifying, in regard to the withholding of the Fisher payment, that “other courts in Colorado have dealt with similar issues and provided orders against carriers who utilized these practices.” Seigal’s supplemental report suggested that he will provide these cases in a further supplemental appendix, and Schulz claims by his response that they have been provided to Shelter in discovery (although Shelter disputes that suggestion).
Critically, however, these cases are nowhere to be found in the record before the court. It therefore is impossible for the court to determine whether these cases are indeed analogous, as Seigal suggests. Even if they were, the Court held that allowing Seigal to discuss these other cases at trial runs too great a risk of confusing and misleading the jury, as well as wasting time on matters that can be, at best, merely tangential to the issues this jury will be asked to decide.
Held
The Court granted in part and denied in part Defendant’s motion to strike certain opinions of Plaintiff’s industry standard expert Brian Seigal.
Key Takeaway:
The insured bears the initial burden of producing sufficient evidence to suggest his damages were caused by an event that comes within the coverage of the policy. As a result, Shelter’s investigation was unreasonable for failing to engage experts to vet Schulz’s claim prior to the initiation of litigation.
According to Shelter’s recommendations with regard to the payment of benefits, Shelter was aware that Schulz was entitled to a payment of more than $138,000, but suggested withholding the remainder of the policy limits until he signed a release. However, the insurer breaches its duty not to unreasonably delay or deny payment of undisputed benefits, even if additional benefits remain in dispute.
