Frank L. Madia

Key Points:

• The Florida Standard Jury Instructions pertaining to plaintiff’s medical expenses instruct the jury to consider and award damages for the reasonable value or expense of medical care and treatment necessarily or reasonably obtained by plaintiff in the past or future. 
• It is plaintiff’s burden at trial to prove the reasonableness of his or her medical expenses. Once he or she testifies to the amount of the medical bills and introduces them into evidence, it is a jury question whether the bills and charges represent reasonable and necessary medical expenses. 
• If scientific technical or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if: the testimony is based on sufficient facts or data; the testimony is the product of reliable principles and methods; and the witness has applied the principles and methods reliably to the facts of the case.

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In a recent slip and fall case we handled in Broward County, Florida, the plaintiff moved to strike a retail store’s billing and coding expert under Daubert from testifying at trial as to the usual, customary, and reasonable charges of the plaintiff’s medical-related expenses. Among other things, the plaintiff alleged the billing and coding expert relied on incomplete, unverifiable information, including her own opinion testimony, which the plaintiff averred would only confuse the jury.

In opposition, we argued the billing and coding expert had sufficient specialized knowledge, experience, and training and was adequately qualified to express her expert opinions regarding the plaintiff’s medical bills and how those bills compare to the prevailing and customary rates charged in the medical community and specific geographical location where the services were performed and that such testimony would assist the trier of fact in understanding the evidence related to those reasonable charges for the alleged treatment provided to the plaintiff. 

The plaintiff’s position would make it impossible for a defendant to contest whether the charges claimed are usual, customary, and reasonable. It would also be contrary to Florida law, which acknowledges a defendant’s right in personal injury litigation to argue to a jury that a plaintiff’s medical bills are unreasonable. See e.g., Katzman v. Rediron Fabrication, Inc., 76 So. 3d 1060, 1065 (Fla. 4th DCA 2011) (sufficiently explained below why certain hospital billing information was necessary as part of determining whether a treating doctor billed non-litigation patients at a lower rate for the same medical services is “admissible evidence regarding the reasonableness of medical expenses”); Giacalone v. Helen Ellis Mem'l Hosp. Found., Inc., 8 So. 3d 1232, 1235 (Fla. 2d DCA 2009) (stating that reasonableness of bills can be determined by looking at: (1) the relevant market for services, including the rates charged by other similarly situated providers for similar services; (2) the usual and customary rate the provider charges and receives for its services; and (3) the provider's internal cost structure). 

The plaintiff in our case also argued that the medical and billing coding expert did not employ a sufficiently reliable scientific methodology in forming the basis for her expert opinion. In pertinent part, the plaintiff cited testimony from the expert that, as part of her methodology, she would input data from the medical billing charges (CPT coding) into a nationally recognized data base in order to obtain what the usual, customary, and reasonable charges were, in her expert opinion, for the plaintiff’s medical treatment. This method, according to the plaintiff, was not sufficiently reliable under Daubert and was, therefore, inadmissible. Simply inputting data into a database, according to the plaintiff, does not survive Daubert.

In response, we cited Cordero v. Target Corporation, 2019 WL 13080580 (2019), where the federal court had already spoken on the same legal challenge under Rule 702 of the Federal Rules of Evidence as it relates to the admissibility of expert opinion testimony from a medical and billing coding expert. 

The Cordero court held that the medical billing and coding expert who specifically utilized the Context 4 Healthcare UCR database—the exact same database used by the billing and coding expert in our case—was qualified to render expert opinions on the reasonableness of the medical charges based on, among other things, the expert’s nine years of experience in reviewing the reasonableness of medical charges and nearly thirteen years of experience in establishing and reviewing “fee schedules using standards such as UCR databases and negotiating out-of-network reimbursement amounts (based on UCR data and commercial insurance allowable fees.” Id. at 23-24.

In applying Cordero and Daubert to our case, we referred the court to the testimony of our billing and coding expert, who testified at length as to the methodology utilized to determine the reasonable value of past medical bills uniformly employed by medical billing professionals based on proper CPT coding for the medical services performed, together with the sources and data obtained, which, in her expert opinion, were not arbitrary. It was further argued that our expert utilized the same methodology throughout her 30 years in the medical billing and coding industry. 

Our expert relied on nationally recognized medical billing and coding standards, federal regulations, and geographically specific modifiers based on the particular categories of medical care. The expert’s methodology was “based on billing rules and coding standards that dictate how medical services are billing in the United States, which are federally regulated, and the application of pricing databases specific to the category of care, community and year in which the service was provided.” As part of her methodology, as indicated above, the billing and coding expert utilized the nationally recognized and generally accepted UCR database (Context 4 Health Care) to review, analyze, and determine what the UCR charges should have been for the medical treatment and services provided to the plaintiff.
 
Additionally, our expert testified that she reviewed the plaintiff’s medical records and billing, including a review and verification of the CPT codes inputted by the providers, to determine if the providers listed and billed the services under the correct CPT codes. In essence, the methodology employed in our case was the same methodology utilized by thousands of medical providers throughout the United States inasmuch as those same or similar databases were used to establish and implement their fee schedules. 

Overall, we were able to successfully establish that our medical and billing coding expert relied on sufficient and reliable data, the testimony was based on reliable and verifiable methods, and the expert applied those nationally recognized scientific methods to the facts of our case. 

As a consequence, the Circuit Court denied the plaintiff’s motion in its entirety and ruled that our medical and billing coding expert was permitted to testify at trial and to provide expert opinion testimony on what the usual, reasonable, and customary charges should be for the plaintiff’s medical treatment and related expenses. The court’s decision led to a favorable settlement of the litigation shortly thereafter. 

Frank and Tom are both members of our Casualty Department and work in our Orlando, Florida, office.  

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_{Defense Digest, Vol. 30, No. 3, September 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}