Supreme Court Rules on Expert Disclosures and Medical Liens

Last Thursday the Supreme Court of Nevada touched on what feels like the topic that drives most of the questions I receive: expert disclosures.  Khoury v. Seastrand[1] discussed a slew of other trial practice issues too and is worth a read, but this post discusses only those that could impact discovery.

Non-Retained Expert Disclosures

Apparently Khoury disclosed William Muir, M.D. as a non-retained expert and had him testify about the reasonableness and necessity of other medical treatment provided by Marjorie Belsky, M.D.  Seastrand seemed to argue Dr. Muir could not testify on this topic without a written report.

The Court reiterated that a treating physician is exempt from the retained expert reporting requirements to the extent the opinions were formed in the course of treatment.  It then highlighted the evidence in the record that “was presented supporting the contention that Dr. Muir’s opinion of the workup of Seastrand by Dr. Belsky was formed in the course of Dr. Muir’s treatment.”  This evidence was sufficient to permit Dr. Muir’s testimony about Dr. Belsky’s treatment.

What the Court did not address was whether the non-retained expert disclosure of Dr. Muir itself was adequate.  For instance, did it specifically state Dr. Muir would be expected to testify about Dr. Belsky’s treatment?  The Court also did not consider any argument as to whether Dr. Muir was qualified to form an opinion about Dr. Belsky’s treatment.  Merely because a medical provider forms an opinion about treatment the patient received from another provider in a different discipline does not automatically make the first provider qualified to give an opinion on the second.

Scope of Retained Expert Disclosures

Khoury also disclosed a retained medical expert, Jeffrey Gross, M.D.  Dr. Gross is a neurosurgeon and concluded that symptoms Khoury had before the accident were not evidence of pre-existing degenerative conditions in her spine.  He instead concluded these symptoms were “likely related to the heart or anxiety or both.”  Seastrand argued a neurosurgeon was unqualified to offer this opinion because heart and anxiety related problems are not within his scope of expertise.

This argument was unpersuasive.  The Court highlighted the evidence in the record that noted Dr. Gross needs to determine if the symptoms for which he is treating a patient are neurological in nature.  If so, he is able to treat them.  If they are not, then his treatment would not be helpful and a referral to another specialty is appropriate.  Using this differential diagnosis qualified Dr. Gross not to definitively diagnosis a heart or anxiety problem, but to determine the symptoms Khoury had before the accident were caused by something other than her neck.

The second argument concerning Dr. Gross was this opinion, that the pre-existing conditions were unrelated to Khoury’s spine, was not disclosed in his initial report.  Instead, the Court noted it was disclosed in a supplemental report.  The basis for the Court’s ruling on this topic is unclear to me.  It stated “Khoury’s experts had made disclosures of their opinions of Seastrand’s past medical records, including records from a doctor’s visit Seastrand made on October 27, 2008.”  What is unclear to me is whether that included Dr. Gross.  If, in his initial report, Dr. Gross had reviewed the records at issue and concluded they did not document pre-existing spinal problems, then it likely would have been appropriate for him to essentially rebut Seastrand’s experts.  However, if Dr. Gross had only reviewed these key records after the initial expert disclosures, then the supplemental report would have been improper, for all the reasons I recently discussed in another post.[2]

By the process of elimination I assume that Dr. Gross had reviewed the records in his initial report and was responding to a competing interpretation of them.  Otherwise this section of the decision would be at odds with other case law.

Medical Write Downs

Whether you call it “write downs,” “meds bills v. paid,” or “truth-in-damages,” the idea is that the jury should be told what was actually paid to satisfy the plaintiff’s medical damages in full.  It is a perpetual battle in pre-trial motions. Apparently Khoury treated on medical liens and the lienholders subsequently sold the liens to a third-party at a discounted rate.  Seastrand sought to admit evidence of the sale amount as relevant to the jury’s determination of the reasonable value of damages.  The Court concluded “that evidence regarding the sale of medical liens is likewise irrelevant to a jury’s determination of the reasonable value of medical services provided.”

My friends and colleagues in the plaintiffs’ bar have ballyhooed this short section as expanding the collateral source rule.  However, I believe this interpretation of the ruling is erroneous as it starkly contrasts with the language the Court used. The district court excluded the evidence based upon the collateral source rule.  The Supreme Court, however, affirmed on other grounds.  It concluded only “that evidence regarding the sale of medical liens is likewise irrelevant to a jury’s determination of the reasonable value of medical services provided.”  It did not go any further.  There is no discussion of whether the collateral source rule was the correct basis upon which to exclude, rather the evidence was excluded due to relevance. This was a very narrow, carefully tailored ruling.

Justice Pickering’s concurrence agreed that evidence concerning the value paid for selling a lien to a third-party is irrelevant.  “The price a third party pays to buy a lien from a doctor depends more on the third party’s assessment of the plaintiffs chances in the litigation, including the strength of the plaintiffs claim and the solvency of the defendant, than the reasonable value of the doctor’s services, and as such has so little probative value and so much potential for distraction as to be excludable as irrelevant.”  However, she expressed concern that the opinion went farther than that.  Based upon the language the majority used, I do not believe it did.

For discovery purposes, this means do not bother seeking information about how much the lienholder (the treater) was paid for selling it to a third-party.  However, this does not preclude discovery of other evidence addressing the reasonable value of medical services.  For instance, a medical provider may always charge $100 for procedure X.  However, the provider may receive varying levels of payment for that procedure.  Each payment received for the same procedure is evidence of the range of reasonable values.  If the provider charges $100 for procedure X, but routinely accepts as payment in full less than that amount, then that is evidence of what the provider believes is a reasonable value.

I can hear some readers screaming “collateral source!”  If presented like I suggest, the evidence is not a collateral source.  It does not concern a benefit that the plaintiff has received from a source other than the tortfeasor.  It instead addresses the medical provider’s own beliefs as to the reasonable value of the medical services provided.

I can hear other readers screaming “evidence of insurance!”  The source of the payment that the provider accepts is irrelevant and would not come into evidence.  Instead, the evidence would be that the provider charges $100 for procedure X, but routinely accepts as payment in full a range of prices less than $100.  Again, if presented in this narrow application, the evidence goes solely to what the provider has accepted as the reasonable value for the treatment provided.

How do you get this evidence? Medicare and Medicaid reimbursement rates would be a start, but it might be worthwhile to gather the ICD9 (now 10) codes and depose the billing or accounting manager for the provider about what is charged v. what is then accepted as payment in full.

Admissibility of Medical Liens

There are routine battles in nearly every case about whether the fact a medical provider has treated on a lien is admissible as relevant to bias.  Plaintiffs argue this evidence is inadmissible under the collateral source rule.  The Court rejected that argument.  A “medical lien represents something that the plaintiff has personally paid for his or her treatment, not compensation that a third party has paid to the plaintiff. Therefore, we hold that evidence of the existence of medical liens to prove bias does not invoke the collateral source rule.”

For discovery purposes, it is still important to lay the foundation to admit this evidence.  Introducing the lien itself is probably a good start, but testimony from the provider is also useful.

[1] 132 Nev. Adv. Op. 52, 377 P.3d 81, 94 (2016).
[2] July 25, 2016