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Expert Witness for Future Medical Costs : Personal Injury, Medical Malpractice, Product Liability – ACA

In my work as an expert witness, attorneys in personal injury, product liability, and medical malpractice cases sometimes retain our services to opine on the cost of future care under the Patient Protection and Affordable Care Act (ACA).  Life Care plans are often prepared for those with serious injuries, which specify the cost of medical care estimated over the life time of the patient for treating injuries that may have been caused or alleged to have been caused in a medical malpractice case.  Recently our firm has been retained to provide opinions regarding the future cost of life care plans under the Affordable Care Act.  It is key to demonstrate that the benefits are readily available and accessible with a reasonable degree of certainty in the market where the Plaintiff resides. We have applied approaches and methods that demonstrate both future costs under the ACA and market studies, researching the ACA qualified health plans and providers available to the Plaintiff in the market where they or their caregivers will be securing insurance.  The ACA specified “Essential Health Benefits” (EHB) and Minimum Essential Care (MEC) along with our expert witness testimony with reasonable degree of certainty on the readily available coverage are combined in our opinions. 

Several factors must be evaluated including age, life expectancy, and potential eligibility for Medicaid Expansion in those states that elected to expand.  Different levels of care, out of pocket expenses and maximum out of pocket assumptions must be considered.  Some types of care are also treated differently under the Affordable Care Act. Disability and waivers may come into play.  Expert witness testimony must include in our opinion whether benefits are available from contracted providers whether HMO, PPO, or other type of ACA Qualified Health Plan.  At

As an expert witness in personal injury cases, depending on whether past or future costs are a factor, we may ask for medical records and other data.   Life care plans or supplemental data from a different medical expert or life care planner expert may also be considered. The same holds true of expert witness work in this context for medical malpractice cases.


This proposed rule would update the Medicaid Eligibility Quality Control (MEQC) and Payment Error Rate Measurement (PERM) programs based on the changes to Medicaid and the Children’s Health Insurance Program (CHIP) eligibility under the Patient Protection and Affordable Care Act. This proposed rule would also implement various other improvements to the PERM program. Source: Federal Register / CMS

An expert witness may be required to opine regarding diagnostic imaging, evaluation and management (E&M) primary care doctor visits, and visits to specialists for pain management, orthopedic surgery, physical therapy, home health care, cardiology or other episodic or ongoing modalities of care.

In our experience, one strategy is to work within the Superior Court or State Court and then appeal to a higher court. Some courts have elected not to hear testimony regarding future care costs under the Affordable Care Act, only to potentially find that it is the law of the land and now has an impact.  This is being tested now in several states.

There are also unintended consequences in product liability cases. Third party liability and subrogation may also be affected in motor vehicle / automobile accidents where auto insurance and health insurance are factors, depending on the State.

An expert witness may also be needed to opine on regional variances in the cost of care.  The cost of medical care in San Francisco will likely be far higher than the cost of care for the same medical procedure in Akron Ohio.   To provide a valid market study, national rates compared to both charges and possibly net reimbursement may also be relevant in testimony and affect the expert witness opinion regarding the Affordable Care Act and regional medical costs.

Building on the foundation of the ACA, Meaningful Use of Electronic Health Records, and PQRS quality measures we have a new 900 page regulation which will again re-factor calculations for healthcare costs: the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA).  Expert witness work will, I predict require re-factoring to allow for MACRA and the Affordable Care Act in the future. More on this new regulation which was posted for public comment in May 2016 in future posts.

Michael Arrigo serves as an expert witness regarding the Affordable Care Act for personal injury, medical malpractice, and product liability cases.  He has given opinions in Superior, State, and Federal Court for cases in several venues across the U.S.  Contact us about Mr. Arrigo’s expert witness CV, case list, fee schedule and retainer agreement.

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About the Author:

Michael is Managing Partner & CEO of No World Borders, a leading health care management and IT consulting firm. He leads a team that provides Cybersecurity best practices for healthcare clients, ICD-10 Consulting, Meaningful Use of Electronic Health Records. He advises legal teams as an expert witness in HIPAA Privacy and Security, medical coding and billing and usual and customary cost of care, the Affordable Care Act and benefits enrollment, white collar crime, False Claims Act, Anti-Kickback, Stark Law, Insurance Fraud, payor-provider disputes, and consults to venture capital and private equity firms on mHealth, Cloud Computing in Healthcare, and Software as a Service. He advises self-insured employers on cost of care and regulations. Arrigo was recently retained by the U.S. Department of Justice (DOJ) regarding a significant false claims act investigation. He has provided opinions on over $1 billion in health care claims and due diligence on over $4 billion in healthcare mergers and acquisitions. Education: UC Irvine – Economics and Computer Science, University of Southern California – Business, Stanford Medical School – Biomedical Informatics, Harvard Law School – Bioethics.

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