November 15, 2017

Unreliable Expert Collapses DOJ-Led False Claims Act Case

Holland & Knight Healthcare Blog
Timothy Taylor

False Claims Act cases often turn into battles of the experts. But only rarely does that battle turn into a rout. It did last week in a case out of the Eastern District of Virginia, United States ex rel. Ribik v. HCR Manorcare, Inc. After a ruling excluding its key expert (and two others that depended on her testimony), the Department of Justice moved to drop the case.

The case alleged that HCR Manorcare overcharged Medicare for certain rehabilitation services at its skilled nursing facilities. DOJ endeavored to prove its case by selecting a sample of 180 patient files for expert review, in order to determine whether the services given them were medically reasonable and necessary. That is a typical method of proof in a medical-necessity False Claims Act case. What was not typical was the expert’s execution of that review.

According to the defendants’ motion in limine, the expert, “produced a report that contains 637 errors and 903 omissions of material facts and delivered clinical opinions that are outside her alleged area of expertise and have a provable error rate of 100%.” She “could not point to a single document in writing issued by CMS or any professional association that contains the documentation requirements she applied.” And “by pure random luck” the three claims in her sample that had previously been audited all were found to be reasonable and necessary, contrary to her conclusions.

Things only got worse from there for the expert and the government. At a hearing held last week, the magistrate judge stated “I’m ashamed that the Department of Justice would rely on this kind of nonsense by a nurse reviewer to get involved in a qui tam case and cost these defendants millions of dollars in legal fees.” The move to drop the case followed shortly thereafter.

We relearn some basics about experts from this case — and it’s always good to remember the basics:

  • Make sure your expert really is an expert. DOJ’s expert was asked to opine on the medical necessity of physical therapy, occupational therapy, and speech-language pathology. But she was only licensed as a physical therapist and hadn’t practiced in that field for 24 years.
  • Make sure your expert knows how to be an expert. DOJ’s expert had never before been qualified to provide expert clinical testimony. And it appears that she and her team did not properly implement the basic rules surrounding the documentation of expert opinions and the preparation of expert reports.
  • Make sure your expert is unbiased. DOJ’s expert worked for a ZPIC assisting DOJ with its investigations as her primary job. That made her that much easier to impugn.

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