The Role of an O&P Expert Witness

Whether to enhance your academic status, expand your knowledge of O&P, or just provide an additional service to your patients, becoming an O&P expert witness can be an adjunct to your normal clinical practice, or it can be a way of easing yourself into retirement. The difference between an expert witness and a clinician is that you are paid for your knowledge and communication skills, not your hands and clinical expertise. Attorneys want an expert witness to be able to clearly communicate and explain complex topics, be coachable and open to and accepting of feedback from the legal team, confident to overcome difficult situations, and candid with the ability to fairly assess merits of a situation. 1 Establishing an Expert Witness Practice The first decision that you need to make when setting up an expert witness practice is whether you want to do it as an independent expert or just for your patients, and whether it will be full or part time. 2 Your next choice is whether to rely on self-referrals or join one of the expert referral services available. Finally, you will also need to decide if you want to be involved with liability cases and/or malpractice cases. Although it can vary by state, usually all written communications between you and the attorney are discoverable, meaning the opposing counsel can review that material. This includes anything written down whether typed or handwritten, including draft documents, any correspondence, text, or emails, all your notes, all your billing records, and anything the attorney sends you. The exception is any verbal communication (in person or by phone), which is considered hearsay and is not admissible. So if you are not proud of your handwriting or spelling, use your computer. As an expert witness, you will be expected to be able to evaluate the client’s O&P care, whether it was appropriate or not, and what the client’s future O&P care could be; determine future costs; review records (medical, therapy, O&P, other expert opinions, and depositions); write a report outlining the recommended care; and provide depositions and testimony. The determination of future costs is generally the most important item for attorneys and patients. When setting up an expert witness practice you will need to create a curriculum vitae (CV), a consultation agreement between you and the attorney, and a website highlighting your expert witness practice. The difference between a CV and a resumé is that a CV is a far more comprehensive document that lists your academic achievements, awards, honors, and publications and not just your work experience. 3 The consultation agreement is the contract between you and the law firm outlining the scope of work, payment terms, length of contract, disagreement resolution process, and how you will protect their client’s information. In addition to general information common to most websites, an O&P expert witness practice website should include your litigation list, fee schedule, and billing process. Your litigation list consists of your past and current cases: name, case number, state, type, defendant or plaintiff, status—settled, deposition, trial, or closed—and it will be reviewed by opposing counsel. The fee schedule consists of the cost of your retainer, your hourly rate for records review and report writing, the fee for independent O&P evaluation, fee for any deposition and trial testimony, and travel expenses. A retainer fee is not a separate or distinct fee, but rather an advance payment for future fees. Future work payment draws down from the retainer amount, then any additional costs are billed separately, usually on a monthly or quarterly basis. 4 Operating Your Practice Financials In an expert witness practice, your clock is always running, meaning when you are doing any work on the case, you need to log your time. Record keeping for billing and invoicing can be done using general accounting programs or a simple spreadsheet. There are special time-tracking apps/tools that can be used if there are multiple experts in your practice. 5 Regardless of your tracking methods, invoicing should be done on a monthly basis for very active cases or a quarterly basis for dormant cases on which you have not done any work. It is also very important to schedule and make estimated tax payments to the Internal Revenue Service so you do not owe additional taxes at the end of the year. The spreadsheet I use consists of a billing record, activity log, and O&P log. The activity log records interaction with the attorney or his/her office and the time I spend on records review, writing reports, etc. The information included in it is then imported into the billing record to track the amount of time per activity, which will be invoiced to the counsel’s office. The O&P log is used to note the client’s interaction with his or her O&P clinician, therapist, or physician. See Figures 1, 2, and 3. [caption id="attachment_235287" align="aligncenter" width="600"] Figure 1. Activity Log[/caption] [caption id="attachment_235286" align="aligncenter" width="600"] Figure 2. Billing Spreadsheet[/caption] [caption id="attachment_235288" align="aligncenter" width="600"] Figure 3. O&P Contact Log[/caption] Evaluating Cases and Preparing Documentation To determine future O&P costs, I review the documents provided by the client’s attorney, ask the client to complete self-assessment outcome measures and review the O&P billing records to determine coding. I then compare billing statements to the Centers for Medicare & Medicare Service (CMS) ceiling and State rates followed by conducting an independent O&P evaluation (in person, if it’s practical). I then use my best clinical judgement to determine the primary device design, replacement rate, and client’s life expectancy. If additional devices or special components are needed, those are then planned for. Because changes in technology and inflation cannot be projected, the future cost is based on current technology and the current usual and customary rate. Reviewing the records, including medical records, occupational and physical therapy notes, prosthetic or orthotic clinic evaluation, clinical notes, and depositions, helps to identify the client’s future needs and future costs. I will either make notes from the client’s records on the O&P log spreadsheet or take screenshots of actual records and import them into a Word document. An independent O&P evaluation will always enhance the rationale for your recommendation, written report, or any future deposition or testimony. It begins with a normal O&P clinical evaluation of the limb’s condition, range of motion and strength, O&P measurements, and walking or other functional ability. Outcome measures help quantify what is needed going forward. Subjective self-assessment measures are a snapshot of how the client is doing. Objective performance measures should be video recorded for future reference. The outcome measures validate your recommendation for future O&P needs or current changes. The self-assessment measures I have used are the Orthotics and Prosthetics User’s Survey Client Satisfaction with Devices scale; Trinity Amputation and Prosthetic Experience Scale; the Disabilities of the Arm, Shoulder and Hand assessment; Prosthesis Evaluation Questionnaire–Mobility Subscale; Locomotor Capabilities Index-5; and Prosthetic Limb Users Survey of Mobility. For performance measures, I have used the Timed Up and Go Test; L-Test of Functional Mobility, the two- or six-minute walk test, timed-meter walk test, four square step, Berg Balance Scale, and the AmpPro and AmpNoPro. A lifestyle questionnaire is a formalized, consistent way of asking the usual questions you use during a clinical evaluation to determine a patient’s current and future O&P needs and device designs. It also gives you an organized approach. Asking the client to fill it out beforehand will shorten the evaluation time and provide a more permanent record. To create a basis for future costs, I use the CMS national ceiling and State rate as the base point to determine the item cost. 6 I then multiply those rates by 120 to 125 percent to create the usual and customary fee. If I am not familiar with the O&P economy of a specific state, I will confer with practitioners in the state where the client will receive O&P care to validate the usual and customary fee. I then compare those figures with the current/past O&P provider’s billings but ignore any discounts. See Figure 4. [caption id="attachment_235289" align="aligncenter" width="600"] Figure 4. CMS – U&C Worksheet[/caption] The spreadsheet lists all L-Codes for a specific device and then a total amount for that prosthesis/orthosis. Each type of prosthesis/orthosis (or special component) should have its own total. Prosthetic examples would be preparatory prosthesis, definitive prosthesis, replacement sockets, recreational prosthesis, microprocessor ankles, etc. The spreadsheet is used to import the current amount and any previous billed amounts into the future cost projections spreadsheet. Determining future costs can vary based on the client’s age, life expectancy, age at time of amputation/injury, and replacement intervals (limb condition, design, components, and lifestyle). National statistics are used to arrive at life expectancy, or when the prosthesis(es)/orthosis(es) will no longer be necessary. In the case of prosthetic projections, I subdivide the spreadsheet into pre-prosthesis, rehabilitation phase, acute phase, and geriatric phase since these will affect the replacement intervals. The acute and geriatric phases should be based on annual costs, but the rehabilitation phase should be monthly based. The columns are divided into each of the different types of prostheses, replacements sockets, annual repairs, special components, and total costs. The bottom of each column has the total projection for that type of item and then the total projected costs based on the life expectancy of the client and the care that you have recommended. Caution: Do not make changes to the replacement intervals based on the request of the plaintiff/defendant. See Figures 5 and 6. [caption id="attachment_235290" align="aligncenter" width="600"] Figure 5. Future Cost Projections Spreadsheet (Previously Provided Items)[/caption] [caption id="attachment_235291" align="aligncenter" width="600"] Figure 6. Future Cost Projections Spreadsheet (Totals and Lifetime Costs)[/caption] If previous billings are available, then those figures are included. No calculations for changes in component technology or inflation are included. But there was only a 24.7 percent increase between 2006 and 2021 for the CMS ceiling rate. Make sure that the attorney understands that the actual cost estimate should be done by an actuary or other financial specialist. The Expert Witness Report Sometimes the attorney does not want or need a written report, just the cost. But maintain the folder just in case. If there is further litigation pending, then the next step is usually a written expert witness report—in this case an independent orthotic/prosthetic report. The format that I use for the independent orthotic/prosthetic report is: introduction, patient history, O&P care, independent evaluation, outcome measures and lifestyle questionnaire, future O&P needs, cost projections, and recommendations. I will also include any references and appendices, such as copies of outcome measures. The introduction is a brief paragraph about what you were asked to do and what materials were provided to you. Patient history is what happened to the client, his or her medical and therapy history, and the lifestyle changes the injury or amputation will cause. O&P care simply explains what kind of O&P care was provided, who provided it, and when it was provided. Briefly explain the relevance of this, and what impact the provision of the O&P care did have or will have on the client’s life. Insert photos and screen shots from videos if they would be appropriate and help explain the care given. Independent evaluation explains what you did as part of your O&P evaluation and briefly what you discovered and what impact that will have on your assessment of the O&P care the client received. It explains what changes you would recommend that will have a significant improvement in returning the client to as normal a life as possible. The outcome measures and lifestyle questionnaire section describes how the self-assessment measures were conducted and what the scores mean. These are used to justify your recommendation for future O&P care. Highlight any specific questions that raised concerns during the evaluation. The performance measures will also justify your recommendations. The same is true for the lifestyle questionnaire and any information from previous depositions. Again, it is used to justify your recommendation. To come up with future O&P needs, you will use the evaluation, outcome measures, questionnaire, and your experience to arrive at the most beneficial O&P care for the client. Do not make any recommendations based on financial considerations. But be realistic. Do not recommend K-4 technology for an individual at the K-2 level; or vice versa. If advanced technology or multiple devices are warranted, then include them. Once you have determined what you feel is the most appropriate O&P care, you can revisit the cost projections spreadsheet(s). After any adjustments are made, the full future cost projections spreadsheet described above it is imported directly into the written report. State that the projection is based on current technology costs and that any future changes in technology or inflation would increase the projections and that the actual cost estimate should be done by an actuary or other financial specialist. I then add a bullet point list of how many replacements of each item will be necessary for the life expectancy of the client. The recommendations are the final part of the written report. I usually write them in a list format. In each state, there is usually a phrase that means that you know what you are talking about and will testify to it. In Illinois it is, “To a reasonable degree of certainty, it is probably more true than not that (client’s name) will need the above mentioned prostheses in the future and those prostheses would be reasonable and necessary.” Check with the attorney to find the phrasing they recommend. The recommendations list will include each of the prostheses/orthoses recommended and why they are justified, when they should be replaced, and what the projected cost for the O&P care would be. If special designs or components are recommended, then the justification could be highlighted at this point. I always end the written independent orthotic/prosthetic report with: “The conclusions were derived from review of records, patient’s responses to questionnaires, photos, videos evaluation, and personal experience. I reserve the right to review and alter my report based on any new evidence that may be presented.” It is followed by my signature and a date line. The written report will have a reference list of the outcome measures that were used and an appendices list of the attached spreadsheets, outcome measure forms, and any other documents filled out by the client or used to arrive at the recommendations. If they are not attached, they will be requested during discovery. You may be done after you have submitted your report and the opposing counsel reviews it during discovery. If they or their expert agrees with you, then they will stipulate and accept your findings. If not, then the next step is usually a deposition. If the case is not settled by then, you can expect to be called to give testimony in court. The irony of “financially unencumbered” O&P care is that advanced O&P designs that cost more are supposed to allow the individual to function at a higher level and more independently, but a less disabled individual may not benefit from an increase in the “pain and suffering” area of any settlement. In closing, consider the goals of an expert witness: Make an independent and rational assessment of the O&P care that has been provided. Help the attorneys recognize the validity of the case. Assist in settlement efforts without a trial, or make sure that the judge and jury understand the complexity and value of appropriate O&P care. Exercise humility, which is better received by the judge and jury and will enhance the acceptance of your testimony. Terry J. Supan, CPO(E), FAAOP(E), FISPO(E), is an O&P expert witness and consultant with Supan Prosthetic Orthotic Consultations, Rochester, Illinois. He can be contacted at supanpoc@gmail.com.

References https://news.bloomberglaw.com/us-law-week/insight-what-makes-a-great-expert-witness-look-for-the-four-cs https://seak.com/getting-started-as-an-expert-witness/ https://www.themuse.com/advice/cv-vs-resumehere-are-the-differences https://attorneys.uslegal.com/attorney-fees/types-of-fee-arrangements/retainers/ https://www.psohub.com/blog/how-consultants-track-time https://www.cms.gov/medicaremedicare-fee-service-paymentdmeposfeescheddmepos-fee-schedule/dme20 https://www.hgexperts.com/expert-witness-articles/structure-of-an-expert-witness-report-45914

The Role of an O&P Expert Witness

2022 Reimbursement Policy Impacts: What You Need to Know

O&P Education: Guiding the Transition to Client-centric Training

O&P Education: Guiding the Transition to Client-centric Training

RECENT NEWS

Get unlimited access!

O&P JOBS

Pediatric Orthotic & Prosthetic Clinician Department of Orthopaedic Surgery – UCSF

CERTIFIED ORTHOTIC FITTER

Certified Orthotist & Orthotic Technician

Are you sure want to unlock this post?

Are you sure want to cancel subscription?

The most important industry news and events delivered directly to your inbox every week.

Welcome Back!

Retrieve your password

Are you sure want to unlock this post?

Are you sure want to cancel subscription?

The Role of an O&P Expert Witness

Support authors and subscribe to content

Subscribe

Related posts:

2022 Reimbursement Policy Impacts: What You Need to Know

O&P Education: Guiding the Transition to Client-centric Training

O&P Education: Guiding the Transition to Client-centric Training

RECENT NEWS

Get unlimited access!

O&P JOBS

Pediatric Orthotic & Prosthetic Clinician Department of Orthopaedic Surgery – UCSF

CERTIFIED ORTHOTIC FITTER

Certified Orthotist & Orthotic Technician

Login to your account

Reset Password

Signup to your Account

Are you sure want to unlock this post?

Are you sure want to cancel subscription?

Account Activation

The most important industry news and events delivered directly to your inbox every week.

Welcome Back!

Retrieve your password

Login to your account

Reset Password

Signup to your Account

Are you sure want to unlock this post?

Are you sure want to cancel subscription?

Account Activation