Lucien W. Roberts

If you have ever been sued frivolously, you know the opposing counsel found an “expert” willing to testify that the standard of care was breached. While most expert witnesses are objective and provide unbiased opinions, there are some who defy logic and find breaches where none exist. Such charlatans exist on the fringes of medicine, using their board certification to convince juries they are indeed experts. And they make a nice living doing so.  We want to explain the safeguards that are in place to protect you if you are ever sued.

The modern Federal Rules of Evidence rule lays out the legal concept for expert testimony and gives trial judges the authority to exclude incorrect or irresponsible experts and evidence.  Two additional rules-the ‘

’ -were incorporated into the Federal Rules of Evidence in 2000 and give “

trial judges authority to exclude expert testimony that is based on bad science or faulty reasoning

.” Trial judges, though, don’t go to medical school. They are unlikely to exclude testimony based upon their understanding of the medical nuances of a lawsuit.  

 a plaintiff’s expert if said expert did not thoroughly review the medical facts of the case and all available relevant information. (This review has been interpreted by courts to include the requirement that experts read all deposition testimony.) Further, your attorney can use the guidelines for expert witness testimony established by your professional society.  The American Academy of Family Physicians’ policy on Physician Expert Witness in Medical Liability Suits can be accessed 

Third, the groundwork laid by the American Medical Association (AMA) is helpful. Since 1998, AMA has considered 

 to be the practice of medicine. This was one of the earlier steps to police expert witnesses, creating a path by which expert witnesses might be held accountable for unbiased or inaccurate testimony.  While it seems likely that this standard curtailed the behavior of some plaintiff ‘experts,’ we do not have data to prove such.  

Finally, ACOG and other professional associations have adopted guidelines for ethical conduct and attendant enforcement tools.  They do not want members who testify blurring the lines between medical malpractice (i.e., negligence) and medical maloccurence (i.e., a bad outcome unrelated to the quality of care provided). Unfortunately, this 

 comes into play after the conclusion of a trial if a physician reports his/her concerns to the professional society.   Its ethics committee will review the complaint along with de-identified testimony to determine if the society’s ethical code of conduct has been breached. If the ethics committee finds merit, it may ask for a hearing in which both parties can attend. Potential disciplinary actions for inappropriate testimony include published reprimand, suspension, a ban from the professional society, and reporting of the plaintiff witness’s misdeed to the National Practitioner Data Bank. 

Both of us have borne witness to questionable plaintiff witness testimony, and we feel these guidelines are underutilized tools. If you have concerns about keeping a complaint confidential, check with your professional society to determine whether anonymity is an option.  

Combatting charlatan behavior is an ongoing effort, and professional societies need our help to affect change. We hope you never are named in a frivolous lawsuit. If you are, however, and the opposing counsel’s “expert” seems not so expert, we hope these four safeguards are of some benefit. Together-physicians, defense attorneys, and practice administrators-we can make a dent in reducing frivolous lawsuits.   

Sean P. Byrne is a director at Hancock Daniel, a national healthcare law firm. Sean focuses on medical malpractice defense work. He’s also an adjunct associate professor at the University of Richmond where he teaches courses on trial skills and healthcare law. Sean may be reached at 

is administrator of Gastrointestinal Specialists, Inc., a 27-provider practice in Central Virginia.  Despite standing a statuesque 5’8”, he eschewed a promising basketball career to help doctors run their practices.  He may be reached at 

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How physicians can protect themselves from unethical testimony by an ‘expert’ witness.

Not-so-expert experts

“Leading by examples” is the rarely discussed little brother of “leading by example.” With our diverse employee and patient populations, leading by examples is a necessity. I seek to explain the difference and how a physician might incorporate Leading by Examples to great effect.

I had dinner recently with my in-laws in the dining home of their retirement community. Our server was new and had received typical, generic “lead by example” training: be nice to our guests. She needed more…she needed 

 to follow. Management had not given her examples such as hold chairs for elderly guests and take the ladies’ orders first. Incorporating these examples-call them standards if you prefer-into her training would make her a better server.

I have erred in thinking that leading by example is enough; it isn’t. We-and I put the blame on myself-have not made 

 a big enough part of our training. For instance, I asked our staff to let patients know if the doctor was running late. That example lacked detail, and as a result, we were inconsistent and fell short of patient expectations.

The examples we need to add include: 1) apologize for the inconvenience; 2) provide an update to any patient who’s been in an exam room more than 10 minutes; and 3) let patients in the lobby know the doctor is running about “x” minutes behind and ask if they mind waiting.

[A quick aside: Physicians should lead by example in the previous scenario, apologizing to patients when running late. That apology means more than all of staff’s apologies combined, and it is leading by example at its best.]

Leading by examples is giving our team clear direction on what great care is. If we 

 it (e.g., “Each one of us will return all patient calls on the same business day”) and 

 it (e.g., “Beverly, I loved how you held the door for Mrs. Jones and thanked her for being our patient”), we are leading by examples and creating an environment of excellence. Alan Vengel wrote a wonderful book, “20 Minutes to a Top Performer,” on fast and effective conversations for motivating, developing, and engaging others. I have found it very helpful as I grow towards leading by examples. His advice can help you lead by examples without adding time to your day.

Leading by examples has tentacles in many facets of the practice, from great care to quality metrics. It incorporates shared goal setting (“We” will achieve the top score on 98 percent of all patient surveys for our office) and shared problem solving (How can “we” do better on our patient satisfaction surveys?). It incorporates the sharing of what wows and what doesn’t within the practice.

Here’s my advice on starting to lead by examples, using patient service as an example:

1. Pull the results of recent patient satisfaction surveys, and share them with your staff;

2. Have a short meeting with your staff, and give them (and yourself) a homework assignment:

Identify five little things we should start doing to make patients smile more without adding any extra work to our day; and

3. Schedule a follow-up meeting and jointly decide what examples will become expectation.

It sounds simple, but leading by examples 

 a simple concept. The goal is to incorporate examples to help us better lead by example. We are finding it helps with employee communication, buy-in, and morale. We are finding it creates a service edge that can separate us from our competition. And we are finding it creates a healthy competition between our clinics. I hope it works for you.

Lucien W. Roberts, III, MHA, FACMPE, is administrator of Gastrointestinal Specialists, Inc., a 28-provider practice in Central Virginia. He occasionally learns from his mistakes. For the past 25 years, he has worked in and consulted with physician practices in areas such as compliance, physician compensation, negotiations, strategic planning, and billing/collections. He may be reached at muletick@gmail.com.

"Leading by examples" means giving our team clear direction on what great care is. Here’s how to start.

Medical Practices Should Lead By Examples

Your best marketing assets are your employees and your patients.Â  Period.Â  We want our patients to tell friends, family and even strangers that we rock.Â  We want our employees engaged in the core mission - providing amazing care and caring to each and every patient.Â  We must energize them to be an effective sales team.We should not be concerned if they are talking about us online or face-to-face (more on that later in the next paragraph); but making sure the story they share is a wonderful one.Â  Enthusiasm is contagious.Depending upon whose statistics we use, at least one in five marriages begins online.Â  If someone is going to look for a forever soulmate online, you can bet they will go online to find a physician.Â  So let's not debate whether it's a good thing or not; it is a reality that we must accept.Â  Online reviews are simply the word-of-mouth for the masses and the millennials.Â  Let's focus on the message rather than the mode.Remember: enthusiasm is contagious.Â  Take care of your patients and employees, and you'll be amazed with how well they take care of you.Here are a few ideas for making your staff and patients a superb sales force.Â 

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Your patients and staff members are your best marketing tool. Get them to be "super fans" of you and your practice. 

8 Ways to Turn Patients, Staffers into Practice Advocates 

Patient collections are much more than collecting $10 copays: those days are long gone.  Patients are paying a greater percentage of what you get paid and will be paying an ever higher percentage in the years to come.  Smart and consistent patient collections tactics must be a part of every practice's financial strategy. 

Consider a few eye-opening stats from a 2015 survey from the Kaiser Family Foundation on employer health benefits  that emphasize why patient collections must be a priority now and for the foreseeable future:

• 24 percent of employees were in an employee-sponsored high-deductible health plan in 2015, a 600 percent increase over just ten years prior.

• The average out-of-pocket cost for patients has increased by 230 percent over this same period.

• More than 90 percent of persons enrolled in an Exchange Plan through the Affordable Care Act are in high-deductible health plans.

Though the rate of healthcare spending may have slowed, the share absorbed by patients has done the opposite.  Here are a few basics for improving your patient collections. 

Have a financial policy: Every practice should have a financial policy and every patient should sign it.  This document is in essence a contract.  In signing it, the patient agrees to your follow your rules regarding payment.  Fees for no-shows, copays, deductibles, the forms of payment you accept: all should be included.

Know in advance what your patients will owe: Most clearinghouses permit real-time and batch eligibility processing.  It is important to know in advance whether you should collect more than just a copay.

Let patients know in advance how much they will need to pay: This step is critical.  We are retraining patients who have been educated by all of us to only bring a copay to every visit.  For patients with existing balances or whose services will drop straight to their deductible, we must let them know before the service how much they must pay. 

Give patients the option: For patients who have a history of 'forgetting' co-pays or are frequent no-shows, offer the option of either pre-paying a nominal non-refundable deposit or rescheduling their appointment until they are ready to pre-pay.  Patients adjust to this policy, and our late-cancel and no-show rates have declined. 

Collect a flat amount in advance: Many practices collect a flat amount in advance of procedures when it is unclear how much the patient will owe.  After the claim has been adjudicated, either bill the patient the balance or issue a patient refund.

Accept multiple forms of payment: Permit patients to pay by cash, check, money order, credit card, and PayPal.  Most practices do, but there are a few outliers. 

Consider credit card on file: With appropriate safeguards, practices can keep patients credit cards on file and charge them for patient balances as long as the patient has given you written permission to do so.  You do not want the liability of keeping their credit card information onsite, so use a certified and secure third party to retain the information.

Offer payment plans: It's hard for most patients to come up with $1,000 on the spot.  Offer patients a chance to pay large balances over several months.  We do not charge interest, but you have every right to do so.  

Make patients aware of pharma subsidies: Saving your patients money on their prescriptions is a nice thing to do.  And as an added benefit, they may have enough money to pay your practice. 

Have a heart: There are some patients in poor or dire health who simply don't have the money.  There will be times when we care for patients with no expectation of getting paid.  It's okay. 

Patient collections is not rocket science.  The tough part, I find, is realigning patients' expectations.  We hope these recommendations help your patient collection efforts.

 is administrator of Gastrointestinal Specialists, Inc., a 25-provider practice in Central Virginia. For the past twenty years, he has worked in and consulted with physician practices in areas such as compliance, physician compensation, negotiations, strategic planning, and billing/collections. He may be reached at muletick@gmail.com.

High-deductible health plans are on the rise. Here are 10 methods to ensure your practice collects from patients with these plans. 

Author | Lucien W. Roberts

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