Physician Compensation Expert Witness, Fair Market Value Expert Witness
Fair Market Value Physician Compensation in Cardiology and Other Medical Specialties – Litigation Consulting and Non-Litigation Consulting
- The Sunshine Act is an initiative designed to increase transparency for patients to improve their visibility into the financial relationships their doctors may have with the pharmaceutical and.
medical device industry.
- In other words, the Act is designed to help illuminate whether a physician’s financial relationships might negatively affect the patient’s treatment by improperly inducing a physician to select a drug or device based on the financial relationship rather than based on what the best choice is that the physician would make using their normal medical decision making.
- We review Sunshine Act payments and ascertain, in the context of Fair Market Value physician compensation, whether the compensation is higher than a physician could earn by performing surgical procedures or otherwise practicing medicine in lieu of the payments from any organization such as a medical device company
- Accordingly, The False Claims Act imposes penalties:
- on any person who knowingly submits or causes another to submit a false claim to the government or knowingly makes a false record or statement to get a false claim paid by the government.
- The damages against liable individuals can include penalties of $5,000 and $11,000 for each false claim and treble damages regarding the government program’s loss amount or damages.
- Exclusion from Medicare and Medicaid. (42 USC 1320a-7b(b)).
- The Stark Law prohibits a physician from making referrals for certain “designated health services” (DHS) payable by Medicare if the physician (or an immediate family member) has a financial relationship with the entity performing the DHS. For example:
- Designated health services include:
- Clinical laboratory services.
- Physical therapy services.
- Occupational therapy services.
- Outpatient speech-language pathology services.
- Radiology and certain other imaging services.
- Radiation therapy services and supplies.
- Durable medical equipment and supplies.
- Parenteral and enteral nutrients, equipment, and supplies.
- Prosthetics, orthotics, and prosthetic devices and supplies.
- Home health services.
- Outpatient prescription drugs.
- Inpatient and outpatient hospital services.
- Stark Law provides an exception to the referral prohibition related to compensation arrangements for fair market value compensation 42 CFR 411.357(l)
- Designated health services include:
- The Anti-Kickback Statute (AKS) provides that one cannot knowingly and willfully offer, pay, solicit or receive remuneration to induce referrals for items or services covered by government program (such as Medicare or Medicaid) unless the transaction fits within a regulatory safe harbor.
- There is a “One purpose test”: Anti-Kickback Statute applies if one purpose of the remuneration is to induce referrals even if there are other legitimate purposes. (U.S. v.Greber, 760 F.2d 68 (3d Cir. 1985))
- The penalties are
- up to 5 years in prison and a $25,000 fine.
- There are civil penalties of $73,600 per violation + 3x damages.
- False Claims Act liability
Our litigation consulting and non-litigation consulting experience include engagements such as:
Expert opinions regarding Fair Market Value (FMV) compensation for cardiologists, gastroenterologists, as faculty members, and medical directors. A synopsis of selected experience is appears below.
- We rely on industry-Standard compensation and physician productivity data such as Relative Value Units (RVUs) and the work component attributed to physician productivity, procedures and physician care (wRVUs)
- We examine other factors listed below.
We also evaluate
- peer productivity for medical proceduralists; peer productivity benchmarks for physician specialties or subspecialties, using industry-Standard sources and Standardized productivity measures
- productivity percentiles,
- comparison to peer specialists in a specific geography,
- comparison to faculty level or tenure, and comparison to years of experience
- faculty members, faculty tenure and levels
- on-call time,
- thorough document reviews of actual compensation data, including tax returns
- other factors as relevant or requested
SELECTED EXAMPLES OF OUR FAIR MARKET VALUE PHYSICIAN COMPENSATION ENGAGEMENTS
Minimally Invasive Cardiovascular Surgeon v. Healthcare Medical Group – U.S. Court, Northern District of California
Retained by attorney representing a physician Plaintiff who practices in the following specialties:
- Cardiology, General Surgery
- Thoracic Surgery Vascular Medicine
Physician pioneered minimally invasive procedures using robotics and was subsequently subjected to anti-competitive action by hospitals. Served as an expert regarding discovery of complex billing data which proved to be valuable in positioning the plaintiff and as a damages expert, in part focused on lost physician compensation. Market definition was also important given the Federal rules regarding market control in anti-trust cases.
Accordingly, some of the physician procedures and CPT codes associated with this physician’s work included:
- 33361 – Transcatheter Aortic Valve Replacement (TAVR) with prosthetic valve; percutaneous femoral artery approach
- 33362 – TAVR with prosthetic valve, open femoral artery approach
- 33363 – TAVR with prosthetic valve, open axillary artery approach (this is an option for subclavian access)
- 33365 – TAVR with prosthetic valve, transaortic approach (median sternotomy, mediastinotomy)
Interventional Cardiologist v. Health System, Montana
Retained by attorney representing physician Plaintiff
Served as an expert regarding discovery of complex billing data and as a damages expert, in part focused on lost physician compensation. Physician’s complaint focused on his lost Relative Value Unit (RVU) based compensation. He alleged that hospital employer had been under-reporting his RVUs for years. “…Plaintiff is also the only cardiologist who reads cardiac CT (CCT) and coronary calcium scores (CCS) in [confidential town].
Interventional Cardiologist v. Health System, West Virginia
Retained by attorney for physician Plaintiff. Physician is a Thoracic Surgeon.
Wrongful termination case where lost compensation associated with achievement of specific contractual goals was at issue. Complaint alleged that physician was terminated in retaliation for being a whistleblower regarding a failed Electronic Health Record (EHR) implementation and other issues. Served as an expert regarding discovery of complex billing data, EMR implementation, Fair Market Value issues related to compensation. “…violation of the West Virginia Patient Safety Act, [physician] has suffered, and will continue to suffer, lost wages (back and front pay) and benefits, other economic damages, and emotional damages….” “…The elements of a civil conspiracy claim are met therefore when it is proven that (1) two or more persons who are named as defendants (2) agreed to commit over tortious act(s) for a common purpose (3) committed the overt tortious act(s) (4) proximately causing Plaintiff harm.” Marfolk Coal Co., Inc. v. Smith, 274 F.R.D. 193, 197 n. 4 (S.D.W.Va.2011).” Guided plaintiff’s counsel regarding discovery of compensation information and record-keeping to ascertain veracity of hospital compensation paid and changes in compensation. Opinions regarding compensation quartiles for a physician in the geography, specialty, and with equivalent years of experience.
State of Texas – Physician Compensation
Capitation Arrangements, Improper Physician Inducements and Conflicts of Interest in Utilization Review (UR) Conflicts of Interest and Independent Review Organizations (IROs)
- Served as expert to educate the Court and the trier of fact regarding capitation arrangements and Standards of care regarding independent review organizations (IROs) and Utilization Review (UR) conflicts of interest.
- Whether physician industry Standards regarding self-referral and disclosures as the Affordable Care Act, whether he had a Safe harbor as defined in Stark Law and whether physician had a Conflict of Interest in utilization review, discharge and referral decision making as defined by Accreditation organizations such as Utilization Review Accreditation organizations (URAC) and the National Association of Independent Review Organizations (NAIRO)
regarding the discharges and referrals of a patient. (see biomedical ethics).
Confidential Medical Director of Surgical Center
Retained by Defendant Ambulatory Surgery Center to opine on Fair Market Value (FMV) compensation of Medical Director in the GI Specialty, what Administrative Duties, time logs and activities were actually performed in contrast to his duties as a clinician and surgeon. Physician plaintiff’s complaint focused on lost compensation from FMV compensation of Medical Directorship, as well as lost compensation from anti-dilution provision on shares, K-1 distributions over 10-years. Served as damages and FMV expert as well as regulatory risk expert regarding anti-kickback statute Stark Law. These opinions went to support Defendant’s legal arguments that an agreement that is entered into where one party circumvented counsel and the entities entered into an agreement that set up illegal compensation under AKS and Stark Law could not be performed.