Healthcare regulation is complex. It is often necessary and helpful to involve an expert. While using experts is wise, however, relying on them comes with peril. Expert reports must be carefully scrutinized.

A recent experience with two such experts illustrated some of the dangers of placing blind trust in anyone. Each concluded that there was a major problem requiring a refund. Yet I feel strongly that they were  both wrong.

This article will focus on the first of the two experts, who provided advice about a surgical coding.

Colleagues had accused a surgeon of using a code indicating a more extensive surgery than the patient received. We asked the expert to review the cases. The expert concluded that the code selected was improper for 90 percent of the cases reviewed. 

The report included a considerable amount of technical language. The executive summary was much easier to read and focused on the surgeon’s 90-percent “error rate.” The only logical conclusion that could be gleaned from the summary was that the surgeon was a bad egg, with a refund necessary and discharge from employment a reasonable consideration. But when I read the full report, I found a phrase that changed everything. 

“While the procedure technically qualifies for the code billed,” the line began. Consider that carefully. If the code is “technically accurate,” why does the consultant believe that the code was wrong and a refund necessary? Even if there are other codes that would also be appropriate, the consultant acknowledged that the code selected was accurate. This purported “expert” was suggesting that the client refund tens or possibly hundreds of thousands of dollars for a “technically accurate” code. That conclusion is “technically” wrong. 

My client was very lucky. Methodical review of the report was sufficient to detect the error. When you obtain a review from an expert, do you read the entire report carefully? Does your counsel? When you’ve got a complicated report, do you pore through it and make sure you understand every element of the expert’s conclusion? Do you require your experts to carefully detail their thinking in a way that you understand?

If you don’t, and you defer to your expert because of their specialized knowledge, you may find yourself needlessly refunding money or believing a false assurance that your organization is without risk. 

Hire experts. Listen to them. But don’t assume that they are always right. Experts, including lawyers (and including me!) make mistakes. Make us prove our arguments. When an expert tells you that a refund is necessary, make sure that they have explained why your claim was indefensible. 

When your bill is completely indefensible, you likely have an overpayment and a duty to refund on your hands. If, however, there are some arguments that support your claim, you may still choose to do a refund – but you have the ability to make that choice.  

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