Class 10 – Trial

If a provider ends up having to go to trial over fraud and abuse or referral laws, an overview of the trial strategy may include:

  1. Prove good faith – get across that defendant is a good citizen – that the doctor or institution is dedicated to the well being of your community. Such as:
    • Aligned with the interest of patients – Reason for higher charges is because the physician provided a higher level of service or the reason the referral was made was because it was in the best interest of the patient and no harm was intended.
    • Defendant Reasonably Relied on Some Authority – like a reasonable person would do. Such as advice of counsel, learned articles, compliance manual, and the best being that the intermediary led the defendant to do what they are doing.
    • Use an expert – Someone who can show this is something done all around the place.
  2. Have High Scienter Requirements for Jury Instruction – so that the government would have to prove that the doctor or health care institution had guilty knowledge.
  3. Cast Doubt on the Government’s case – overreaching government. Attack government’s witnesses, attack government’s sampling of claims, and difficult to comply because coding is so complex.

Also, consider if the government uses sampling and multiplies this by all claims the provider had. A defense may be to cast doubt on the results of the government’s sampling. For example: (1) Question the governments sampling technique – such as, it is not a random sample used by the government; (2) Question each conclusion drawn by the sample; and (3) for the provider to do their own sampling – which hopefully calls the government’s sampling into question.

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