Experts are key in defending the recent wave of prosecutions alleging the fraudulent provision of medically unnecessary services. However, the defense must first survive the Daubert challenge.
Surviving Daubert Analysis
Dr. Rajashakher P. Reddy was able to convince the Eleventh Circuit that his defense expert survived Daubert.
Dr. Reddy was named in a thirty-seven count Indictment alleging wire fraud, mail fraud, health care fraud, and falsifying records in a federal investigation. Dr. Reddy was a licensed and board-certified radiologist and the owner of Reddy Solutions, Inc. (“RSI”). RSI was a teleradiology business in Atlanta, Georgia. The charges stem from Dr. Reddy’s operation of RSI.
The Indictment alleged that Dr. Reddy perpetuated an eighteen-month health care fraud scheme, whereby Dr. Reddy fraudulently signed and submitted radiology reports electronically and through the U.S. Mail for “tens of thousands of patients … in cases where neither he nor any other RSI physician had ever reviewed or analyzed the film.”
The jury convicted Dr. Reddy of all offenses, except for five wire fraud counts. Dr. Reddy appealed arguing that the trial court committed reversible error by excluding the proposed defense expert testimony of Dr. Benjamin Sacks pursuant to Daubert.
The defense theory at trial was that Dr. Reddy performed the services as represented, but that remote access and other indicia that he did the work were not adequately reflected by RSI systems and records. Dr. Reddy’s proposed expert, Dr. Benjamin Sacks, was to provide testimony summarizing his “peer review” of a sampling of images which Dr. Reddy had purportedly examined and diagnosed. Dr. Sacks’s substantive findings were that Dr. Reddy’s work as a radiologist was “spot on” and Dr. Sacks concurred with Dr. Reddy’s conclusions in 1053 out of the original 1060 reports reviewed.
The Government moved to exclude the testimony of Dr. Sacks based upon its claim that the entire peer review study was unreliable for various reasons, and that the testimony would not assist the jury. The district court agreed that the proposed peer review testimony failed all three aspects of the Daubert analysis.
The Eleventh Circuit determined that the exclusion of the defense expert was an abuse of discretion and vacated Dr. Reddy’s convictions and remanded for further proceedings on the issue. Particularly, the court found that Dr. Reddy’s defense was that he “did the work”. The court further found that the purpose of the peer review performed by Dr. Sacks was to give the jury some sense of the accuracy of the work that was being generated by Dr. Reddy as indicative of the actual attention he must have paid to the images on which he reported. The court stated that the jury could infer from Dr. Sacks’s peer review and attendant results that a radiologist and not a lesser trained staff member had undertaken a review of the image. The court agreed that this was a “powerful defense evidence.”
The Eleventh Circuit appeared impressed that the defense expert had hired a statistical expert to identify how to conduct the peer review. Additionally, the statistical expert had suggested that Dr. Sacks review a minimum of 287 images to achieve a greater level of confidence with the peer review. Dr. Sacks exceeded this number in reviewing 1060 images. The court also noted that Dr. Sacks had the proper credentials. He was a graduate of Cornell University, obtained his medical degree from UCLA, had completed a four-year residency in diagnostic radiology at Emory University, and was board-certified.
Takeaways From This Case
The takeaways from this case are:
- Pick an expert with solid credentials and highlight these at the hearing;
- Confirm all the information in your expert’s CV before the hearing;
- Conduct a thorough review of all authoritative literature;
- Ensure your expert has done more than the minimum in reaching his opinion;
- Illustrate the reliability of your expert’s testimony; and
- Ensure the review or analysis is independent.