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:
(a) 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.
(b) 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.
(c) 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.