Litigation is a lengthy process and one that requires the involvement of a multitude of people throughout its life cycle. More often than not, an Expert Witness or Subject Matter Expert (SME) will need to be called in. This holds true across all areas of legal practice, and the hunt for a qualified, objective SME comes with a set of unique challenges. In the Healthcare Fraud litigation space, selecting a SME as an Expert Witness can prove to be as difficult as building an entire case; with a plethora of certifications, guidelines, and ethics to adhere to. How can you ensure that you’ve identified a credible source? How do you form a brain trust with your SME that will not only hold up in court, but will support your case’s desired outcome? It’s easy to get lost in a sea of credentials and strong personalities, but we’re here to steer your ship in the right direction.
In December 2016, Forbes predicted that the insurgence of Subject Matter Experts across the market would be a driver for widespread success. Their projections came true, and an influx of self-proclaimed SMEs saturated the market. The problem then transitioned from finding a SME to selecting the right SME for the job (or case). When it comes to case involving healthcare fraud, waste, and abuse – the selection process became all the more muddy. Healthcare if full of credentials and acronyms from CPC, to RN, to CPHQ, to AHFE, and everything in between. How do you know where to start? Will you need a doctor? A nurse? An auditor? Maybe a Law Enforcement Officer?
Define Your Needs
So, you’re dealing with a case in which a provider not only was allegedly involved in kickbacks, but who was also performing procedures that were not medically necessary. What kind of Subject Matter Expert, or Experts are needed? Your SMEs will most likely fall into one of three categories.
- Practitioners: Depending on your needs, a Practitioner can be a licensed physician, a registered nurse, a certified fraud examiner, or someone whose background is clinically based. Physicians and other top-tier clinicians are often able to speak to medically necessity and perform peer reviews. Law enforcement officers may also fall into this category.
- Academics: These SMEs will be able to assist in more theological discussions or can truly benefit a case that is heavy in methodologies, statistical sampling and data analysis, RAT-STATs reviews, and extrapolation. In healthcare fraud, statisticians and data experts are often asked to lend their expertise.
- Professional Experts: Professional Experts are often a 2-for-1 SME, as they formally worked as a Practitioner before transitioning into a professional Expert Witness or SME. Professional Experts may need less courtroom etiquette training and preparation than the other two types of SMEs. Their hands-on experience in the field in question coupled with their deposition may prove to be beneficial – though some may question the cessation of their clinical experience for testimony. Strong examples of Professional Experts can be law enforcement such as Retired OIG Officers, or recently retired physicians or nurse practitioners. Be strategic in their utilization.
When examining the pool of “talent”, you may want to select at least one SME from each field – and narrow the choices down from there. If you’ve identified your needs but don’t know where to search – try universities, consulting firms, and even LinkedIn, in addition to your firm’s own network.
You’ve identified your candidates. Now it’s time to evaluate their potential efficacy as it relates to your case. There are three steps to follow to secure your firm an impressive SME.
- Background & Conflict Review: Prior to divulging any case details to your stable of SMEs, perform a thorough background check on your expert. Ensure that there are no conflicts on interest present that may sour your case later down the road and determine witness availability. You don’t want a no-show on game day. Review your candidates’ background to determine a record of professionalism and to verify that all reported credentials and experiences are up-to-date and factual.
- Assess Prior Experience: A SME is an investment of not only your firm’s money, but time as well. Make sure the ROI on your SME is moving in the right direction. How much preparation will they need? Do you need to give them a crash course in expert testimony? Comb through their professional background to determine if their experiences closely align with the responsibilities they’ll be taking on as a member of your litigation support team.
- Interview & Briefing: Now that you’ve done your due diligence, it’s time to meet your candidates. At this point in the process, you may have realized that you want to onboard more than one. That’s perfectly fine – some instances require coverage from all angles. During these interviews, you will be able to gauge a SMEs performance in the courtroom and can assess how well they operate in unpredictable situations. It’s recommended that you formulate a few questions not only on your professional relationship with this SME (fees & costs), but on the project itself, and how they’ll address key aspects of the case.
These steps should put you in a position to make a responsible and educated decision on who will be helping you during your litigation. If all goes well, you’ll have another contact to add to your stable for future projects. Developing a relationship with a well-vetted SME might be an arduous process at first, but if you find a professional who works well with your team and demonstrates competence and success in the courtroom, you can consider them your own secret weapon.