A federal court in Alabama dealt a blow to the theory that in matters of medical judgment, a false claim action can rest on expert opinion evidence alone.

A patient is eligible for hospice if the prognosis is life expectancy of six months or less, assuming the terminal illness runs its course.  The government sued AseraCare, alleging that the hospice falsely certified that 123 of its patients were eligible.  The government’s proof?   The opinion of one expert, who reviewed the patients’ records and concluded that the patients didn’t meet the eligibility requirement.

But, Judge Karon Bowdre noted, every one of the records contained a certification that, in the opinion of the certifying physician, the patient did meet the eligibility requirement.  So all she saw was a difference of opinion between two physicians—the certifier and the government’s expert.  What’s more, the government’s expert himself changed his mind about some of the patients, but nevertheless testified that both his initial and later conclusions were “accurate to a reasonable degree of certainty.”

So the court awarded AseraCare summary judgment, ruling that “allowing a mere difference of opinion among physicians alone to prove falsity would totally eradicate the clinical judgment required of the certifying physician.”

The case is U.S. v. AseraCare, Inc., 2016 BL 100986 (N.D. Ala. 2016).