Internal Medicine Expert Discusses “Homebound” Services in Medicare Fraud Case

Court: United States District Court for the Eastern District of LouisianaJurisdiction: FederalCase Name: United States v. CrinelCitation: 2018 U.S. Dist. LEXIS 144909

Facts

A federal grand jury found the defendant guilty of conspiring to defraud Medicare. The government appointed an expert in the field of internal medicine and the medical necessity of house health facilities to provide testimony regarding whether certain patients’ medical records supported a finding of the medical necessity of “homebound” services. The defendants moved to exclude the internal medicine expert’s testimony in their pre-trial motions.

The Internal Medicine Expert

The government retained an internal medicine expert witness who specialized in internal medicine and infectious diseases. The expert had been the Chief Health Officer of New Orleans for 13 years and continued to serve as Vice-Chair of the Board of Commissioners of the Orleans Parish Communications District. The expert witness owned his own private practice and frequently contributed articles related to health in journals.

Arguments for Exclusion

The defendants asserted that the court erred in certifying the internal medicine expert witness as an expert in the medical necessity of home health facilities as he did not have any special understanding, education, or expertise that made him an expert in the field of home health certification.

The defendant further argued that the improper testimony of the expert substantially affected one of the defendant’s Fifth Amendment right to remain silent. Particularly, this criticism was in reference to a question the government asked the expert during direct examination — “How could the defendant have care plan oversight at the highest level when he hasn’t seen the patient yet?” The expert responded that this question would be more appropriately directed towards the defendant. Following this remark, the defendant moved for a mistrial claiming that this remark was sufficiently erroneous and prejudicial to create a basis for a new trial.

Discussion

The court was of the opinion that the subordinate court had not erred when it qualified the internal medicine expert witness as an expert qualified enough to testify with regard to the medical requirement of home health services and allowed him to offer his opinion about individual patients and the criteria for their qualification for home health services.

The court also discovered that the expert had an adequate foundation for the views he articulated. In forming his opinions on the eligibility of individual patients for home health care, the internal medicine expert depended on OASIS forms (filled by the home health nurse practitioner), Medicare payment records, doctor-signed certificates, and other instructions issued by the physician. He had further depended on the patient file filed by the certifying physician. The court noted that the defendants objections were not about the expert’s qualifications, but rather about the weight of his testimony which was a subject for cross-examination.

The court observed that the expert’s comment did not significantly impact the rights of the aggrieved defender because his remark did not count as a constitutional violation. In addition, the subordinate court had instantly supplied the jury with a powerful curative guidance about the Defendant’s Fifth Amendment right. The Court also noted that even if the expert’s comment violated the Defendant’s Fifth Amendment right, the violation was harmless in the eyes of the court because the expert’s remarks were isolated, unsolicited, and never reflected in the subsequent interrogation or closing argument of the prosecution.

Held

The defendant’s motion to exclude the testimony of the government’s internal medicine expert witness was denied.