The importance of expert opinion (offered either by affidavit or in deposition testimony) in summary judgment practice cannot be overstated. We have previously written about this in a number of different contexts: medical malpractice (https://www.videntpartners.com/blog/2019/medical-expert’s-affidavit-opposition-summary-judgment-fails-establish-triable-issue), health insurance coverage (https://www.videntpartners.com/blog/2019/what-makes-expert-opinion-so-“speculative”-it-can’t-prevent-summary-judgment), and premises liability (https://www.videntpartners.com/blog/2020/summary-judgment-against-plaintiff-who-failed-offer-expert-opinion-affidavit-or-deposition). A recent Third Circuit decision, Druding v. Care Alternatives, https://www2.ca3.uscourts.gov/opinarch/183298p.pdf (3/4/2020), addresses the impact of expert opinion in a False Claims Act (FCA) case.
The plaintiff-relators in Druding were former employees of defendant Care Alternatives, a provider of hospice care. They claimed that 35% of the patients admitted to Care Alternatives were ineligible for hospice under the Medicare statute and regulations. To establish eligibility, a hospice must submit a doctor’s certification that the patient’s life expectancy is 6 months or less, plus clinical information and other documents supporting that prognosis. The plaintiffs’ expert reviewed the records of 47 patients and opined that, for 16 of those patients, the documents did not support the certification of need for hospice. “In his view…any reasonable physician would have reached the [same] conclusion.” Unsurprisingly, the defendant’s expert reached the exact opposite conclusion: in his opinion, “a physician could have reasonably determined that the prognosis for each patient was six months or less.”
The district court granted summary judgment to Care Alternatives on the ground that the plaintiffs had produced no evidence that the 16 disputed certifications of terminal illness were “false” within the meaning of the FCA. The court held that a “mere difference of opinion between physicians, without more, is not enough to show falsity” (emphasis in original), because medical opinions are subjective and therefore cannot be false. To put it another way, “scientific judgments about which reasonable minds may differ cannot be ‘false.’” (Citation omitted.) The district court held that the plaintiffs could not succeed without evidence of “objective falsehood,” namely, that the certifying physician’s prognosis of terminal illness was incorrect. What might constitute evidence of such an “objective falsehood” in this context is far from clear.
The Third Circuit rejected the district court’s “objective falsehood” standard and reversed the grant of summary judgment. In doing so, the court entered into a lengthy (14 pages in the slip opinion) and highly technical discussion of the meaning of the words “false or fraudulent” in the FCA, the distinction between “factual falsity” and “legal falsity,” and the importance of not conflating falsity and scienter (knowledge of wrongdoing), which are separate and distinct elements of an FCA claim. Any summary of the court’s analysis would itself be lengthy, so I’m not going to attempt it here; but the full opinion is well worth reading for any attorney with a substantial FCA practice, especially because the court candidly acknowledges a split in the circuits: The Eleventh and Seventh Circuits have adopted the “objective falsehood” standard, while the Third Circuit now joins the Tenth Circuit in rejecting it. Hopefully the Supreme Court will resolve this conflict in the not-too-distant future, as FCA cases are an important category of federal litigation in which millions of taxpayer dollars are at stake.
For present purposes I want to focus on one specific aspect of the Third Circuit’s decision, because it bears on the function of expert opinion in FCA lawsuits alleging false medical claims. The court here relied on United States v. Paulus, a Sixth Circuit case in which a jury convicted a cardiologist of healthcare fraud, based on expert testimony that he had exaggerated the extent of coronary artery blockages so that he could perform and bill for unnecessary stenting procedures. The district court granted Dr. Paulus’ motion for a post-verdict judgment of acquittal, agreeing with his argument that an angiogram interpretation is a subjective medical opinion, not a fact subject to confirmation or contradiction. On appeal by the Government, the Sixth Circuit vacated the judgment of acquittal and reinstated the guilty verdict. The Third Circuit quoted and relied upon Paulus as follows:
[W]e reject the District Court’s bright-line rule that a doctor’s clinical judgment cannot be “false.” In United States v. Paulus, the Sixth Circuit…stressed that medical “opinions are not, and have never been, completely insulated from scrutiny.” For example, “opinions may trigger liability for fraud when they are not honestly held by their maker….” Such was the case in Paulus, where the defendant was charged with lying about the results of angiograms he conducted and bill[ing] taxpayers for procedures conducted based on those results. As the Sixth Circuit explained, a good faith medical opinion is not punishable, but a bright-line rule that medical opinions can never be false [would] fail to hold accountable a physician who “saw one thing on the angiogram and consciously wrote down another, and then used that misinformation to perform and bill unnecessary procedures.” The court concluded that whether the defendant was acting in good faith or committing fraud by misrepresenting the angiogram results was an appropriate question for the jury….In weighing that decision, the jury could consider evidence of different doctors who had interpreted the angiograms differently.
We can apply these same principles to our civil FCA case. The “reliability and believability of expert testimony…is exclusively for the jury to decide.” Contrary to the District Court’s reasoning, medical opinions may be “false,” and an expert’s testimony challenging a physician’s medical opinion can be appropriate evidence for the jury to consider on the question of falsity. (Emphasis added; citations omitted.)
When you’re filing or opposing a motion for summary judgment, you need a strong affidavit or deposition testimony from a top expert. We provide experts in all fields of specialization for all types of litigation, and we look forward to assisting you the next time you need help finding an expert.
