Expert Witnesses in Prosthetics & Orthotics
In the medicolegal worlds of workers’ compensation, personal injury, and medical malpractice law, someone who has lost the use of a limb can present special challenges to life care planners, case managers, and attorneys working on behalf of both the plaintiff and the defense. Fortunately, prosthetists and orthotist can help bring clarity on all the practical steps needed to make these people whole. This introductory article will explain a few core concepts that a qualified prosthetics/orthotics expert witness might bring to their reports and testimony, with a focus on how their recommendations can affect the financial bottom line.
Pricing:
Custom artificial limbs and braces provided by certified prosthetist/orthotists (CPOs) are expensive, especially when adding up cumulative lifetime costs of replacements, which can range across hundreds of thousands, if not millions, of dollars. Fortunately, there is a lot more transparency in the usual & customary pricing for this kind of healthcare compared to services often provided in hospitals because of standards set by Medicare.
Attorneys who practice in the healthcare realm are likely already familiar with Common Procedural Terminology (CPT) codes that itemize reimbursement for treatments by physicians and most other allied healthcare providers. Those CPT codes are just level-one of the American medical billing universe, known to the wonky among us as the Healthcare Common Procedure Coding System (HCPCS, pronounced hik-piks). CPOs, meanwhile, get paid using the second level of HCPCS codes, often described as “L-codes” since most prosthetic/orthotic billing codes consist of the letter “L” followed by 4 numbers denoting a specific device or features of it. The Centers of Medicare and Medicaid Services (CMS) sets pricing for each specific L-code which varies somewhat by state. For instance, L5321 (merely the base code for a modern transfemoral/above-knee prosthesis) in Q1 2024 reimburses ~$4600 to CPOs in Florida. The overall price tag of such an artificial limb goes up from there as the CPO bills for additional components and features (e.g., the microprocessor-control feature of the knee unit, L5828, for $3300, and a typical carbon fiber foot, L5980, for $4300). When the 15-or-so codes fully describing our hypothetical above-knee prosthesis are added up, the estimated cost to make each completed device can easily reach ~$50,000.
One notable exception to the CMS-controlled pricing regime is worth pointing out: the not-otherwise-specified (NOS) L-codes. These are denoted by their ending in 99 (e.g. L5999, L7499), and they exist to describe new products and features that CMS has not seen fit to create specific coding and pricing for yet. Because NOS L-code prices are not published by CMS, clinicians must set their own price. The customary way to calculate this is simply twice whatever the CPO pays for that product/feature at the wholesale level (remember, CPOs do not get paid specifically in any significant way for their time, so reimbursement for products is intended to cover all the care provided for the life the device). Purely for example, let’s imagine that a new microprocessor knee is $10,000 more expensive than the usual wholesale price because it is fully salt waterproof (which is not part of the design of most devices). That feature will then likely be described using L5999 with a retail price set at $20,000.
Regardless which L-codes are used, an expert witness in this space should be able to do accurate pricing research, local to the client to be treated, to give the overall cost of any medically necessary devices recommended.
High Tech and Low Tech:
Though computerized and externally powered prosthetic devices for both arms and legs perennially get splashy headlines, many patients with comparably minor amputations actually benefit more from simpler products without any electronics at all. Basic mechanical prosthetic feet or body-powered fingers are often just easier to use – not to mention sometimes lighter or more durable – than their technologically more sophisticated cousins. On the flip side, the more anatomy a patient is missing, or the more weakness they suffer from in their remaining muscles, the greater is their need for smart, electronic joints and control strategies.
A responsible, experienced CPO will only recommend the most appropriate device(s) for any given patient regardless of cost or the allure of the newest gadget. Sometimes this will in fact require a mixture of high tech and low tech prostheses, and perhaps multiple different artificial limbs that are task / environment specific (e.g. a body-powered hook for very subtle, dexterous activities like tying shoelaces which can then be switched out with a powered hand for tasks that require more grip strength like carrying a shopping bag). In addition to just being good treatment, such recommendations – firmly grounded in the patient’s unique presentation – will stand up best when legal proceedings get contentious about who will pay, and how much, for this care.
Rehab:
Not to be overlooked in plans for getting patients back to function with their new prosthesis/ orthosis is training with a physical and/or occupational therapist (PT, OT). These utterly vital professionals might already be a part of the care team treating issues not directly related to the effected limb, but their role is an even bigger key to success when it comes time to help patients learn to efficiently integrate a new device into their daily life. PTs (generally working with lower extremity prostheses as well as leg/foot braces) and OTs (often helping with devices for the arm and hand) do this by scheduling many hours with a patient to practice using the device to walk or regain independence in activities of daily living.
Of course, time with a PT/OT can usually be provided in the home and/or outpatient clinic settings (e.g., only one-to-three days per week for several months). However, an experienced CPO – in consultation with the treating physician – might foresee that a stint of inpatient rehabilitation is needed to get particularly debilitated patients over the initially steep learning curve of mastering a new device while also rebuilding minimally required levels of strength, flexibility, balance, and stamina that are quickly lost during a prolonged period of inactivity after serious injury/illness. Inpatient rehabilitation almost universally means patients get treatment in multiple therapy disciplines for 3 hours daily, and this rehab bootcamp really can mean the difference between success and failure for patients who will only do well with access to the right prosthetic/orthotic devices and early, intensive training.
The Return of the Surgeon:
By the time a patient is working with a lawyer or a life care planner, they might think their need for surgery is in the past. Yet, oftentimes surgeries performed in the early phases of stabilizing an injury or illness are laser-focused on speed and/or saving anatomy at all costs, which can lead to poor functional outcomes when it comes time to be fitted with a prosthesis/orthosis. If a patient is left with just a small fraction of a foot or finger, if cut ends of their remaining bones are not sufficiently smoothed, if the residual limb lacks enough padding from normal levels of fat and skin tissue, or even if some of the cut nerves become hyperactive, it can become effectively impossible for a CPO to fit such a patient with a device that will protect them from pain or wounds induced by simply being active. An experienced CPO will readily recognize these red flags when examining the patient, and give the recommendation that additional surgery might be needed to correct any of these serious anatomical problems. Though it is ultimately the choice of the treating surgeon, problematic partial hands and feet are oftentimes best resolved to higher levels of amputation, such as complete removal of non-functional fingers or performing a transtibial/below-knee (or even above-knee) amputation. Though revision surgeries create additional costs both in the operating room and in prosthetic components, they are usually the only way to solve anatomical problems that simply cannot be accommodated prosthetically.
Finally, one other type of relatively new revision surgery is worth mentioning on its own – osseointegration. Put most simply, this multi-step procedure involves placing a metallic anchor in a bone with a connecting pin emerging, permanently, through the skin so that a CPO can attach prosthetic components directly to the patient’s skeleton. Osseointegration removes the need for the custom made sockets that have historically permitted patients to merely wear their prostheses, and this procedure is rapidly gaining acceptance for those who have never been functional or comfortable in externally worn sockets. Patients who do well with osseointegration report immensely improved comfort and coordination when using their prostheses, and this technique is also making possible the long awaited future of full neurological integration of prostheses with their users, so they can be controlled by thought as well as restore some sensation.
Prosthetic/orthotic care and technology is a super-specialized niche of rehabilitation, and legal professionals working in this space can expect to learn a lot more than can be covered in any single article just by observation, as they see more and more clients who need this kind of care to resolve their civil suits and workers’ compensation claims. Hopefully, this primer is a good point of entry for anticipating the various ways a CPO expert witness might make recommendations that influence the scope of care and the financial bottom line needed to justly resolve these cases.
– Brandon Green, DO, BOCP
March 2024
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About the author:
Dr. Brandon Green is a licensed physician and board certified prosthetist with over 15 years of experience. He has worked across the spectrum of the prosthetics/orthotics industry, from direct clinical care of patients with limb loss and permanent weakness of intact arms and legs, to teaching fellow physicians and therapists in graduate / post-graduate settings, executive leadership in orthotics manufacturing, and arbitrating insurance appeals by prosthetics/orthotics patients – both as an appellant and as an expert reviewer with final authority on insurance coverage. Because of this diverse experience, he is well-equipped to serve as a prosthetics/orthotics expert witness for any party involved in the medicolegal aspects of this kind of rehabilitation, whether the case calls for simple analysis of medical records, detailed reporting of original care recommendations, responding to adverse experts, or providing sworn testimony in depositions and at trial.