You don't necessarily think of billing with regard to malpractice cases, but increasingly it plays a role in aggressive tactics. It is used three ways: first to reduce credibility, secondly to open the door to punitive damages, which are special risks for the defendant, and finally it can result in secondary billing complaints to Medicare or a licensing board. Each of these has serious effects in time, worry and your wallet. And, you can usually prevent the problems.
How do billing issues cause a problem and how do you prevent them? First, they can be raised by the expert witness in the trial in order to question your credibility. Don't think that this means it's because you have done questionable billing. Between the lack of knowledge of the jury on this problem, the inherently Byzantine nature of billing, and the fact that rules of evidence may prevent you from countering criticism, almost any accusation can have an effect. Something that your professional society, Medicare, or payer would say is by the book can be called erroneous. For example, an expert witness can say that billing for physicians assistant services is not allowable. Unless you are prepared, you may not be able to counter it effectively.
Look for these possibilities and risks in advance. Have your bill reviewed early by someone who could be subpoenaed if necessary as an outside expert in that field. This could be a formal request for review of the bill by an insurance agency or payer. This allows you to trump allegations by an expert without specific credentials in this area with the truth from a billing source who has them. At the least, it allows you to neutralize a billing expert of the plaintiff. Furthermore, if any payment or repayment is requested in the review it is best to find out about it well in advance and make corrections.
Second, billing allegations can help increase the risk of punitive damages being considered. Punitive damages are awards usually granted based on a "wanton disregard", or some similar wording.These are rare, but with enough confusion raised in allegations, together with the right judge, it can happen. One major problem is that these are usually not covered by your insurance policy, therefore you are responsible. The judge makes the decision whether to allow these and instructs the jury.
The good news is is that they are rarely granted, still they cause substantial worry, delay, risk, and confusion even if not awarded. They can force settlement in a case that you would prevail in or put you at extra personal financial risk.
They represent a bonus for the plaintiff's attorney. Take steps to avoid them by careful preparation of the trial to minimize the effect of allegations.
Third, in the increasingly aggressive atmosphere of malpractice, allegations of billing errors may be sent to the insurance company, Medicare, or licensing board. The plaintiff or the plaintiff's attorney may encourage this to again cause confusion and worry. Furthermore, if any judgment is made against you in this process it's great ammunition to raise the level of doubt about you.
An aggressive, preemptive review shortly after learning about a case will be a step you'll be glad you undertook.