Admitting Summary Medical Charts And Expert Evidence

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When a party offers a chart summarizing voluminous evidence under FRE 1006, will the decision to admit it involve the court's assessment of its use, or is the FRE 1006 admission question completely independent? The Seventh Circuit demonstrated that the decision to admit summary evidence, while it may facilitate a qualified expert's presentation, is independent of whether or not the expert is actually qualified to testify, in United States v. Chhibber, 741 F.3d 852 (7th Cir. Feb. 3, 2014) (No. 12-2728)

Under FRE 1006 a chart or summary can be used to "prove the content of voluminous writings" that would otherwise complicate presentation of the evidence at trial. Often summary charts are used by expert witnesses to aid their presentation to the jury. Does the admission of the summary chart turn on whether the expert has been qualified to testify? In deciding a case admitting both summary evidence and expert opinion testimony concerning the summary evidence, the admissibility issues under FRE 1006 are treated independently from the admission of the other under FRE 702.

Question Of Which Medical Records

In the case, defendant Chhibber was charged with making false statements relating to health care matters and for committing health care fraud. The government theory was that the defendant, who operated "a walk-in medical office for patients who had insurance" or Medicare coverage, had ordered "an unusually large volume of diagnostic tests," many of them very technical and often requiring special training (such as echocardiograms, electrocardiograms, pulmonary function tests, and nerve conduction studies). What caught the prosecutor's interest was that many of these diagnostic tests were performed by the defendant. Inquiry into the record disclosed that the defendant had "obtained reimbusements for the tests from insurers by presenting claims that contained false and misleading diagnostic codes to justify the tests. He also supported the claims by recording fake symptoms and sham diagnoses in his patient's charts." Chhibber, 741 F.3d at 853.

It was necessary to review the medical records of the defendant's office to understand the scope of the alleged fraud. For example, the reports in the records could be cross-checked with the testimony of "witnesses who had worked for Chhibber, patients who saw him, and undercover agents who presented themselves ... as persons needing medical services. This testimony revealed that Chhibber was in the habit of ordering diagnostic tests for his patients regardless of any symptoms they exhibited or reported." Chhibber, 741 F.3d at __. Often these witnesses would indicate that the defendant's notes in the record did not reflect what they presented with. Generally the witnesses noted that the defendant failed to discuss with them the tests he ordered or the results.

Statistical Evidence: Excluding "Peer Group Evidence"

To assist the presentation of evidence, the prosecution "initially sought to qualify ... statisticians as experts, and sought to introduce charts demonstrating that Chhibber preformed various tests on his patients with much greater frequency than the other internists in the same geographical area." The trial judge decided that neither the statisticians could testify as expert witnesses, nor could the charts they would use to show the defendant's ususual pace of testing were admissible. Apparently the judge was persuaded by defense objections that "charts comparing the frequency of Chibber's testing to the frequency of testing by his peers," because of the peer group the government was suggesting was relevant. United States v. Chhibber, 741 F.3d at __.

The defendant successfully argued that this evidence presented an apples and oranges comparison; the experts were comparing his practice with a group of doctors who did not "own [ ] testing equipment" as defendant did, so that many in the posited peer group "could simply be referring patients out for the same amount of testing," just that this testing was not done by the doctors themselves. As a result, comparing the defendant to doctors who did not do their own tests "was neither accurate nor fair. The trial court agreed and declined to qualify the statisticians as experts, and also declined to allow the government to present the charts comparing Chhibber's frequency of performing tests to the frequency of other doctors." Chhibber, 741 F.3d at __.

Refocused Presentation: Medical Records To Corroborate Other Evidence

With the statistical evidence of the defendant's operation compared to a norm unavailable, the government refocused its presentation. The government sought to admit the raw numbers and simple percentages from the defendant's medical records. Instead of using a statistical norm to compare the defendant's operations, the prosecutor asked medical expert witnesses about "how often an internist encounters patients with the conditions diagnosed by Chhibber and how often an internist typically orders the tests performed by Chhibber." This testimony, based on the charts, was presented by "an internist who was qualified as an expert in the field of internal medicine and diagnosis." The defendant did not object to this testimony.

These medical summary charts were difficult for the defendant to challenge. As the circuit indicated, the defendant did not argue that the summary charts were inaccurate. Instead, the charts "accurately portrayed the data culled from [defendant's] records, and were not misrepresented to the jury as anything other than what they actually were. His objection that the numbers were calculated on a per-patient rather than a per-visit basis, for example, was a point that he could argue to the jury, and he was free to argue that the numbers lacked significance for this reason. But the numbers were not portrayed to the jury as per-visit when in fact they were per-patient; all of the percentages were accurate summaries of Chhibber's own records." Chhibber, 741 F.3d at __. Just as significant as the soundness of the summary represented in the charts, the government provided a basis for the jury to evaluate the records introduced.

The circuit noted that this comparative testimony was based on presentation by a doctor that "provided an adequate basis for comparison and did not function as a 'peer group of one.'" Instead, he was an expert, who testified "about his experiences both as an internist and a supervisor of other internists for more than twenty-nine years. Chhibber did not object to any of Dr. Herdeman's testimony regarding the frequency with which an internist would order these tests." Chhibber, 741 F.3d at 857-58. The circuit found this evidence was used to corroborate the evidence of the defendant's patients, undercover officers, and former employees concerning his practice and the fraud scheme: "the charts were presented in the context of Dr. Herdeman's expert testimony, as well as in the framework of the testimony of patients (both real and undercover) and former employees who attested to their experiences with Chhibber's practices."

Conclusion

The Chhibber demonstrates how the purpose for which the evidence is offered informs whether it is admissible. While the "peer group" evidence was inadmissible based on questions of whether a fair comparison could be made, the medical records were admissible to corroborate the reported fraud practices.

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