Defense counsel in personal injury trials are increasingly relying on medical billing experts to argue that clients’ medical bills are unreasonable. L. Lamar Blount, for example, has been popular among Georgia defense counsel recently.
Why are medical billing experts even relevant?
One might ask why reasonableness of medical bills is even an issue for the jury. If clients have to incur a particular cost as a result of their injury, they should be reimbursed. It is not their fault that medical bills are expensive, and they have minimal leverage to renegotiate.
Certainly when a client undergoes a wholly unnecessary procedure to run up a tab, that client should not be compensated. But billing specialists more typically agree (or assume) the procedure was necessary. They then simply assert that the doctor billed at a rate above the national or regional average.
All that being said, the current Georgia pattern charge on medical expenses, 66.040 reads as follows:
In all cases, necessary expenses resulting from the injury are a legitimate item of damages. As to medical expenses, such as hospital, doctor, and medicine bills, the amount of the damage would be the reasonable value of such expense as was reasonably necessary.
So long as the jury charge references “the reasonable value” of the expenses, the sort of argument made by billing experts, if it can survive Daubert review, is likely admissible.
The simplest way to undercut billing experts
That such testimony is admissible does not mean the jury will care about it. Kastorf Law has consistently found, when polling jurors after a verdict, that if the jury thinks a medical procedure was both necessary and a consequence of the accident, jurors are not inclined to debate the fair market price of the service. This fact creates a great opportunity to undercut a medical billing specialist before they ever take the stand.
The key is to ask a question not of the billing expert but the defense’s medical expert.
Assume the medical expert disagrees that some procedures were necessary. First ask whether the treating physician violated the standard of care in recommending the procedure. Medical doctors—particular defense experts—are loath to answer yes. They will frame the issue instead as a disagreement about the ideal scope of care.
Then, ask:
Q. Is it appropriate for patients to follow the advice of their physicians?
A. Of course.
Q. You are not faulting my client for following her physician’s advice, are you?
A. No.
One the jury hears that even the defense medical expert agrees the patient behaved appropriately, they will be disinclined to dicker with the bills, regardless of what the “reasonableness of charges” expert has to say.
Other strategies for dealing with medical billing specialists
Of course, you’ll still want additional strategies to blunt the impact of their billing expert. Kastorf Law has experience with these experts. If you would like to talk through strategies for deposing an expert on medical billing, reasonableness of charges, and Medicare & Medicaid reimbursement, you need to draft a Daubert motion, or are preparing for trial, please give Kastorf Law a call.