Re: F-A-C-T

[Louise Andrew]

Dear David,

Thanks for everything you have done to try to maintain our
prior ties.

I for one hate to see this group die, but we do
collectively seem to have lost the passion to pursue it.
Or perhaps other events in our lives and world have
overshadowed this particular issue.

Knowing what I know about medical associations, I don't
think there's any way at all that we could coordinate their
efforts in this regard---herding cats being so innately
difficult, herding herds of cats would be impossible. I
think we can be pleased and proud that so many associations
have established EW policies, some of them at our prompting
and using some of CCEMT's principles as guidelines.

I agree with you that we can and must continue our
individual efforts, teaching, and writing whenever possible
to educate our colleagues and the public about the issue.
And communicate with each other, perhaps individually, when
something relevant comes to our attention. Or when a
colleague calls out for help with this issue.

Probably we can rally around other related issues such as
establishment of health courts, if and when the political
climate allows for this.

Is there a way to maintain the mailing list even if the
group becomes deactivated?

Hope you all are well and enjoying spring wherever you are.
As for myself, I am expecting grandbaby #3 at any moment in
Baltimore!

Regards,

Louise
Louise B. Andrew MD JD
www.MDMentor.com
www.Black-Bile.com

[Kenneth Zahl MD]

Dear David/Louise

I am on spring break with (by design with limited email access) so am responding to David and Louise

I agree with Louise (other events in our lives)

As to herding cats that is why doctors are easy to conquer and divide, that being said, most speciality societies have ethical testimony policies for experts

I recently won a case where I was viciously sued by State Farm after prevailing in over 50 arbitrations for alleged insurance fraud on interventional pain procedures I did in my office based pain clinics. Thus I will be soon testing the American Society of Anesthesiology's policy on expert testimony. State Farm hired an anesthesiologist who was also a JD- the case was so badly put together - we won on cross examination. In other words we got a directed verdict at the end of the State Farm case.

One thing that helped with the trial judge is that NJ has a policy where an expert has to be actively practicing in a sub-speciality and board certified. In my case their for hire expert, while possessing anesthesia boards did not have the pain sub-specilalty boards and beyond basic lumbar epidurals, never did. The judge refused to qualify him in the field of pain or billing for pain procedures ( you should have seen his expert report)

As long as there is money to be made, I suppose egregious EW will continue, but as I intend to take this to the hilt, maybe it will prevent another case. What I learned more than anything though was carefully educating the judge who did the right thing worked. I know that for this expert though there were issues before when we got some of his other cases, another judge tossed him. If he gets sanctioned, it is the beginning of the end for him, and he goes back to being a for hire high price escort and delivery service for the ORs where he works.

If there is no real cost to maintain the google group I say keep it

Oh and congrats to Grandma Louise ( I fell old enough to be the grandfather of my 7 & 10 year old after spending the week in Florida)

Best regards

Ken

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Kenneth Zahl MD
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www.painpa.com

[dpriver]

Ken,
I'm sorry to hear about your ordeal, but pleased to see that you
intend to pursue action. Do I understand you to say that you will be
filing some sort of grievance against the expert who State Farm hired?
If so, please keep us informed about what transpires, as I think this
is just the sort of thing that will advance our cause as well as keep
interest alive in this discussion group. I think all of us would be
interested in hearing of similar stories. I suspect there's not a one
of us who hasn't been in some way victimized by bogus expert
testimony. If people are willing to share their war stories, I'm more
than happy to keep this group going.
David

> > For more options, visit this group athttp://groups.google.com/group/fellowship-for-accurate-courtroom-test....
>
> Kenneth Zahl MD
> kenz...@gmail.comwww.painpa.com- Hide quoted text -
>
> - Show quoted text -

[Kenneth Zahl MD]

David:

If not a big chore, please keep the group going.

As you enquired,  I will discuss my matter.  The State Farm (SFIC) case dragged on for 4 1/2 years,  many problems form including having to change my attorney who was too cozy with SF.  Funny my kids shreak and boo when they see a State Farm commercial or pass a store in the mall.

A little history will,  as it is instructive, I hope (and since I just won this case and had to catch up with the office prior to Spring Break).  I am copying myself as it will be the preamble to the ethics complaint.

SFIC charged me (in June 2006) under the NJ Insurance Fraud Protection Act   (IFPA) - an act designed by and for insurance companies).  They did this after I won 40 no-fault (auto injury)  fee arbitrations.  Under the IFPA they get to go back for six years.  The NJ Attorney General can join the case and they can even charge you criminally.  If they can prove five coding violations over the six years, one has engaged in a pattern of insurance fraud.  IFPAs are tactical and they can also get triple damages and legal fees/expenses.

The charges stemmed from complex coding scenarios for in office pain procedures under fluoroscopy.   I was the only physician in the State who at the beginning of the last decade owned his own C-Arm,  which they claimed it was illegal to charge a professional and technical fee.  SFIC claimed illegal to bill for supplies and injectables and illegal to bill for anesthesia.  In addition there were many coding disputes, which I usually prevailed on during arbitrations.  In the arbitration when you win the attorney gets his fee paid by the losing insurance.  When they sue you, your med mal insurance does not cover this ( my general liability insurance also declined) and it cost well over a $100,000 to defend - not including lost time.

Once they charge you it freezes all the arbitrations and the awards - and now that I have won the bogus lawsuit, in addition to getting those payments (plus interest at the court approved, not commercial rate)  I have another 10 arbitrations schedule for hearing,  but SF has won in a sense in that they have stalled this so long that they are paying with cheaper, inflated dollars at lower rates of interest than if they did not have the money.

Since insurance fraud involves expert testimony, they hired a MD JD Dr. Lorne Sheren ( who also worked a while for NJ Firm that dealt with my medical practice so he had an additional ethical conflict).  Saying that his expert report was egregious is kind.  We moved to disqualify him as he did not have pain boards or any coding experience, but the judge allowed him to continue only as an expert in anesthesiology and basic lumbar epidural pain procedures and documentation for same but not coding per se.

Of course that was a major blow for them  He really then lost all credibility when we subpoenaed his bills.  He never produced the first bills, and  he said he did not  yet bill for the additional 60 charts her reviewed - because sometimes with lawyer clients he holds off on doing so until the case is over.  The American Society of Anesthesiologists (ASA) prohibits such seemingly contingent fee arrangements.

 (5. The physician’s fee for expert testimony should relate to the time spent and in no circumstances should be contingent upon outcome of the claim. )

The judge was very poker faced, but I could see his disdain when Dr. Sheren did not have those bills, or even his original bill for the first review and report on 10 sample charts.

I guess I will find out what the ASA says, I hope they don't cop out and say it was not a medical malpractice case, when I file the complaint ( I need to order the transcripts from the hearing and would estimate that it would take at least 10 hours for another peer to review this).

"6. The physician should be willing to submit such testimony for peer review." 

Next came the nurse coding expert - who never billed for procedures in a doctor's office (worked at a major teaching hospital) and tried to apply medicare and other rules to my bills.  All of her work was seemingly spoon fed by the insurance company attorneys.  Another waste as I had to hire a "nurse coder" and when she could not stay late because she had to work the next day, it screwed up our schedule as I had to pay for an extra travel day of my expert.

Then when SFIC rested my attorney filed the motion for a directed verdict or dismissal on a Thursday. We correctly felt that SFIC had not met their burden of proof, and that many if not all of the issues had been raised in arbitrations (res judicata).

The Judge took his time but was very thorough, in addition to the testimony there were over 8000 pages of patient records and bills ( I sent my expert home). He dismissed the case after the weekend went by.

20 days before the trial I offered SFIC $20,000.00, a fee I came up with which I was willing to pay to walk away and not have to spend another day, as I knew I was paying an additional $30K    the week before the trial started (not including no income generated in the long pre-trial prep and trial days).  SFIC litigation counsel jeered at my offer, but if they don't appeal and win I will have the last laugh.

State Farm had to obtain a judgment on verdict (judicial) of $16,000 or higher in order to be relived of potential liability for my  attorneys’ fees under NJ Rule. 4:58-1 et seq.   ( The Rule means that if  the person turning the offer down loses, they are on the hook from the day they turn the offer down)  On this point, I am now awaiting a decision on my R. 4:58 attorneys’ fee claim where the SFIC IFPA claims have been successfully defended to a no-cause or dismissal, thus they never came close my Offer of Judgment.  

We are talking some $71,500 in attorneys fees and $11,500 in expert witness and other expenses I spent in the 10 days before and during the 7 day trial.

I am not celebrating yet, as once the judge signs the order dismissing the case ( he may also knock down some of my attorney's fees),  the clock runs on their time to appeal.  Certainly as I have waited so long I can await the next few months before filing the ethics complaint against Dr. Sheren.  I also wished my prior attorney made the Offer of Judgment as soon as we got the two faulty so-called expert reports, as in theory I could have recouped the fees my experts charged and other legal fees dating back to 2009.  

By the way, it does not seem that the American Association of Professional Coders (AAPC) has an expert witness policy.  She was awful and clearly misrepresented the CPT code book.  She never even coded a pain or anesthesia procedure,  but the judge allowed her to testify despite that.

Oh well as I said I hope it is instructive.

Best regards

Ken

For more options, visit this group at http://groups.google.com/group/fellowship-for-accurate-courtroom-testimony?hl=en.

Kenneth Zahl MD

ken...@gmail.com

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[Judge Thomas]

I would be interested to know whether State Farm appeals and, if so,
the outcome of the appeal. This is precisely the type of case where I
would use an independent expert early on in the case to test whether
the State Farm experts could testify.

Neil Thomas

> ...
>
> read more »- Hide quoted text -

[Judge Thomas]

Louise,

I would like to see if we can keep the group together. I have been
very frustrated with trying to get judges to use Rule 706 to appoint
independent experts to assess the reliability of experts on either
side of the case, especially in med mal cases. I have used that rule
successfully in four cases.

Neil

[dpriver]

This case is most interesting in that it raises the question of
whether the system of "health courts" being suggested by Philip Howard
would have headed off this costly many year ordeal. His proposal
(which the Obama administration has expressed interest in) would
assign all medical liability claims, and presumably ones like this, to
a panel of medically trained judges and eliminate juries. One wonders
if this expert would have been ruled unqualified to testify right at
the outset for the reasons Ken cites. I'm sure it's safe to say that
the trial bar will not sit quietly by for a plan which would end jury
trials. Should be interesting.
David

> > Louise B. Andrew MD JDwww.MDMentor.comwww.Black-Bile.com- Hide quoted text -

[Mayer, Dan]

Hi all,

I'm in favor of continuing too. I'm trying to be more and more objective in the legal work that I am doing in the hope that this is one way to prevent partisan expert testimony that could be tainted by the lack of objectivity.

Are there any 'costs' in keeping the group together?

You have all been very good in having important discussions that have always been very cordial and (I think) productive.

Best wishes,

Dan


Dan Mayer, MD
Professor of Emergency Medicine
Albany Medical College
Mail Code 34
47 New Scotland Ave.
Albany, NY, 12208
phone: 518-262-6180
FAX: 518-262-5029
Mobile: 518-461-3191

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[John Schedler]

Louise & everyone --

I am one of the lurkers who long ago should have piped up.  I, too, think we should keep at it.

John W. Schedler | SCHEDLER BOND PLLC

2448 76th Ave. SE, Ste 213 | Mercer Island, WA 98040

Dir Ln (206) 659-6285 | Fax 866-580-4853| Email<mailto:sched...@gmail.com>

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As Mayer, Dan noted,

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