We are often asked by PI practice physicians what some of the criteria are for us to accept representation of their patients. Although no precise formula exists, there are a number of factors which help to determine whether or not we can help you PI patient. In a more important and larger sense, these same criteria remember by a treating physician who provides care and treatment for any patient in excess of the value available in PIP coverage in an automobile accident or in excess of the med-pay coverage on an accident involving premises liability issues. Please believe us when we tell that if we sense the potential for success through the patient, it’s not likely that we’ll turn down the opportunity. On the other hand, because we operate on a contingency fee basis, if the representation seems an unnecessarily risky proposition based upon the facts, good business savvy indicates that we must decline involvement. However, know that our case criteria in no more than that of any experienced plaintiff’s attorney.
The first issue that we need to review is that of liability. In Utah, if the patient is more responsible for the accident than the other party, there can be no recovery. Likewise, if the patient is comparatively negligent or responsible for the accident, his recover, if any, will be reduced to the extent that he is also culpable. Determining liability is often difficult and should never be left solely to the patient seeking representation. The investigating police officer’s report is very important, as are the statements of witnesses or other individuals who have knowledge about the accident. Many times the true facts of an accident don’t become apparent until long after the initial retention when we have completed our investigation.
Second, the amount of property damage to the vehicle in which the patient was riding is a very important issue. Unless there is at least $1,000 of property damage to the patient’s vehicle, the chances of the insurance company involved cooperating are remote. This means that any low impact collision automatically puts the case into a category where insurance company payment and settlement resistance can be expected, often creating a condition in which the outlay of time involved in the representation will probably exceed that amount of money that the case may be worth, even if we win. The fact of the matter is that the insurance industry has recently developed a very effective “dog and pony show” involving certain “experts” in Salt Lake City that have produced a number of jury verdicts favorable to the defense that involved low speed impacts. An already suspicious public has been quick to adopt defense theories that may seem plausible on one hand while on the other hand produce the outcome the conservative jury really desires. Although it is untrue that any direct correlation between property damage and extent of injuries can be proven, the track record with the local juries has not been favorable to victims of low speed impacts.
The solution for this problem is clearly greater public education. However, the persuasiveness of that greater education is better when it occurs outside the courtroom, prior to the juror’s selection, than as a new revelation to the jury after they have already been selected for jury duty.
Third, some consideration is given to the nature of the patient and the kind of witness that they may make. For example, Jed Clampett with a hole in the top of his hat and a sprig of straw in his mouth may not make a good witness; unless of course the case was being tried in Toquerville. We are also concerned about the treating physician and the kind of witness that he/she makes in terms of both written documentation supporting the file, and the potential for an effective courtroom presentation. However, we caution to point out that this component is rarely, standing by itself, justification for dropping the case.
Fourth, there needs to be insurance coverage involved. Occasionally, we will drop a case because we learn that the person who caused the accident was driving uninsured…and so was the patient. Sometimes a patient will actually opt out of the uninsured motorist coverage. We of course encourage no one to take this step, but some people do for economic reasons, so beware.
Fifth, is the extent of the patient’s prior injuries. Some patients have such a convoluted history of prior injuries (and sometimes post-accident injuries) so as to make it difficult or impossible to separate those injuries caused or aggravated by the accident from those caused by something else. The greater the confusion about prior injuries, the more opportunities the defense has to cloud the relativity and causation issues by pointing to some other event as the reason for the patient’s symptoms.
Where there is a significantly late start in any medical care post-accident or a large “dead spot” in treatment, the chance for any success is greatly reduced.
Once again, there is no magic formula, but each of the variables above, and others, taken in concert, help us to determine whether a case will benefit from our involvement and produce a favorable result. All too often we see doctors treating PI patients far in excess of any PIP/No-fault coverage limits where the medical of the case involve a history of a significant unresolved prior injury and the patient is obviously at-fault for the collision. If the chance of recovery is speculative, given reasons outlined herein, so is the chance for recovering any of your outstanding balance. Furthermore, as many of you have experienced, the care that ought to be paid for under PIP/No-fault is frequently challenged for all the same reasons outline herein.
Monday, January 31, 2011
Thursday, January 6, 2011
Re-examinations
Recently our office had a case where our client received chiropractic treatment following an auto accident. When it came time to make a claim against the auto insurance of the driver who caused the accident, the auto insurance questioned the last thirty chiropractic visits received by our client. This auto insurance, like most auto insurance companies, has a nurse on staff that helps determine the necessity and appropriateness of the treatment sought by those who make claims. This nurse went over the treating doctor’s records and determined that last 30 chiropractic visits were unnecessary, and the carrier did not want to pay for them.
It would be easy for us to argue that the nurse who saw these treatments as unnecessary is not qualified to make that decision. A jury or arbiter might even agree with this argument. More likely if it were to go to trial the insurance company would just hire and actual DC to say the same thing. However, a far superior argument would be the obvious objective improvement of the patient’s or claimant’s injuries during the last 30 visits. If it were clear that the condition objectively improved during that time period, it is likely that there would have been no question regarding necessity. The best way to show the objective progress of the patient is to perform and document a re-examination of the patient’s injuries. This way a nurse, adjuster, jury or arbiter can look at the re-examination and compare it with previous examinations to see the improvement in the patient’s condition. If no re-examination is performed there is a lack of objective evidence that the patient is benefiting from continued chiropractic care.
Unfortunately in the aforementioned case, a re-examination was not performed during the last thirty visits of chiropractic care, leaving us without our best argument in our efforts to get our client’s treatment paid for. Re-examine your patients, do it frequently and record the measurements and findings of those re-examinations. Too many DC’s rely on a SOAP Note with the word “improved” checked off to justify care. This is not good enough. The DC community must do better!
It would be easy for us to argue that the nurse who saw these treatments as unnecessary is not qualified to make that decision. A jury or arbiter might even agree with this argument. More likely if it were to go to trial the insurance company would just hire and actual DC to say the same thing. However, a far superior argument would be the obvious objective improvement of the patient’s or claimant’s injuries during the last 30 visits. If it were clear that the condition objectively improved during that time period, it is likely that there would have been no question regarding necessity. The best way to show the objective progress of the patient is to perform and document a re-examination of the patient’s injuries. This way a nurse, adjuster, jury or arbiter can look at the re-examination and compare it with previous examinations to see the improvement in the patient’s condition. If no re-examination is performed there is a lack of objective evidence that the patient is benefiting from continued chiropractic care.
Unfortunately in the aforementioned case, a re-examination was not performed during the last thirty visits of chiropractic care, leaving us without our best argument in our efforts to get our client’s treatment paid for. Re-examine your patients, do it frequently and record the measurements and findings of those re-examinations. Too many DC’s rely on a SOAP Note with the word “improved” checked off to justify care. This is not good enough. The DC community must do better!
Wednesday, October 20, 2010
Five Ways to Ruin Your Personal Injury Case
Most people don’t set out to make things worse for themselves, but many times they succeed. I once tried my hand at cooking indoors (as in not on the barbeque) without a recipe. I saw a dish on one of those TV chef shows and thought it looked easy. It was an absolute disaster. Although it looked simple, I didn’t realize there were several tricks to avoid ruining the dish. The same can be said for a personal injury case. Most people want a fair and reasonable resolution when they have been injured by the carelessness or wrongdoing of another. However, there are a few traps that injured people need to be aware of to avoid ruining their chances at a fair outcome.
Not enough health care
Sometimes people want to tough it out, or avoid taking advantage of anyone by simply dealing with pain and hoping it will go away. A cruel irony in our legal system is that those are the people who have the smallest chance at a fair settlement or jury verdict. Insurance adjusters and defense attorneys are well trained at taking advantage of those who don’t get treatment for their injuries. They will take the approach that if you were actually hurt, you would have been getting treatment. It is simple logic that is easy for jurors to adopt. This is true even if in reality you were flat on your back and unable to move with pain, or if you simply were worried about getting stuck with medical bills that you can’t afford.
Put simply, avoiding health care will not help you. You will be far more likely to get out of pain by going to get help. Use your Personal Injury Protection (PIP) benefits to pay for care and treatment for your injuries. If you have already used all of your PIP coverage, use your health insurance. If you don’t have health insurance, find a doctor who will work on a lien basis (we know of lots of them, just call us). Avoiding care and treatment is perhaps the worst thing you can do.
Too much health care
Before we get ahead of ourselves with all of this health care, remember one thing: don’t over-treat. Getting too much treatment can be just as bad as not getting enough. Adjusters and defense attorneys, ever the masters of simple thinking, will try to convince a jury that you are just “malingering” or faking your injury to avoid returning to work, or some other reason. Too much medical treatment is an easy way for them to create skepticism of your injuries. Don’t give them the opportunity! Only get as much care and treatment as you need to heal from your injuries.
Not following doctor’s orders
You probably are wondering then, how much is too much? Listening to your doctor and using common sense is the best way to determine this. It is difficult for an adjuster or defense attorney (or jury for that matter) to fault a person who is honestly doing what they believe is necessary to get better, by following their doctor’s advice. Furthermore, it is easier for your attorney to convince a jury that all of your health care expenses are reasonable and necessary if we can show that you were simply following medical advice. In other words, do whatever your doctor tells you to. Don’t miss your appointments, and do whatever home exercises your doctor prescribes for you. Your doctor will tell you how to get better. It is your responsibility to do the work. Being too busy to get better will prolong your pain, and make it look to a jury like you are not hurt.
No re-examination
Admittedly, to ruin your case in this way you need your doctor’s help. I recently attended a trial where the treating physician (a very fine and capable professional) was brutally beaten (metaphorically) on the witness stand by the defense attorney. The biggest problem was his lack of objective records in the file. Your attorney needs to be able to show through medical records that your treatment was working and that you were getting better. The best way to do this is to have the treating physician re-examine the patient and create a report for the file. This is different from the daily records most doctors have the patient fill-out (where you mark on the picture where it hurts). This should be done every three to six weeks by the doctor. If your doctor doesn’t remember to do this, you need to remind him or her.
The doctor on the witness stand knew the patient was getting better, and approximately how much more treatment the patient would need. However, there was no re-examination to document the file with objective findings that show that the patient was getting better. That makes it easy for the defense attorney to bring into question whether the treatment was necessary or even working.
Poor communication
Building a personal injury case requires a team effort. If you don’t want to ruin your case, be a team player. Occasionally, a client will tell us they are dissatisfied with the progress they are getting in their recovery from injuries. Sometimes they don’t think the treatment is working at all. Other times, they may like the results they are getting for one part of their body (for instance their neck), but don’t feel like they are getting improvement in other areas of their body being treated by the same doctor. Interestingly, they often don’t want to tell the doctor because they don’t want to hurt their relationship with the doctor, or perhaps don’t want to stop the improvement they are getting in the areas that are improving. I suspect that there are also times when a client won’t tell either the doctor or their attorney about their dissatisfaction.
This poor communication hurts the case because it slows down the recovery process, and possibly creates gaps in treatment that are difficult to explain to a jury. Communication with both the treating doctor and the attorney is essential because there are always other options. Treating doctors can try different techniques, or perhaps coordinate with another health care professional to help solve the problems. Good physicians won’t be offended by this, and will be able to speed your recovery process with this better communication. Keeping your attorney in the loop is also vital so that your progress can be tracked. Furthermore, your attorney knows many different doctors in many different specialties who may be able to assist. Being a team player will help you make your case the best it can be.
In conclusion, there are many ways to ruin your personal injury case. I have listed only a few here. However, following the guidelines listed here will help you get the fair compensation you deserve after being injured by the carelessness of someone else.
Article was written by Adam G. Larson Esq.
Not enough health care
Sometimes people want to tough it out, or avoid taking advantage of anyone by simply dealing with pain and hoping it will go away. A cruel irony in our legal system is that those are the people who have the smallest chance at a fair settlement or jury verdict. Insurance adjusters and defense attorneys are well trained at taking advantage of those who don’t get treatment for their injuries. They will take the approach that if you were actually hurt, you would have been getting treatment. It is simple logic that is easy for jurors to adopt. This is true even if in reality you were flat on your back and unable to move with pain, or if you simply were worried about getting stuck with medical bills that you can’t afford.
Put simply, avoiding health care will not help you. You will be far more likely to get out of pain by going to get help. Use your Personal Injury Protection (PIP) benefits to pay for care and treatment for your injuries. If you have already used all of your PIP coverage, use your health insurance. If you don’t have health insurance, find a doctor who will work on a lien basis (we know of lots of them, just call us). Avoiding care and treatment is perhaps the worst thing you can do.
Too much health care
Before we get ahead of ourselves with all of this health care, remember one thing: don’t over-treat. Getting too much treatment can be just as bad as not getting enough. Adjusters and defense attorneys, ever the masters of simple thinking, will try to convince a jury that you are just “malingering” or faking your injury to avoid returning to work, or some other reason. Too much medical treatment is an easy way for them to create skepticism of your injuries. Don’t give them the opportunity! Only get as much care and treatment as you need to heal from your injuries.
Not following doctor’s orders
You probably are wondering then, how much is too much? Listening to your doctor and using common sense is the best way to determine this. It is difficult for an adjuster or defense attorney (or jury for that matter) to fault a person who is honestly doing what they believe is necessary to get better, by following their doctor’s advice. Furthermore, it is easier for your attorney to convince a jury that all of your health care expenses are reasonable and necessary if we can show that you were simply following medical advice. In other words, do whatever your doctor tells you to. Don’t miss your appointments, and do whatever home exercises your doctor prescribes for you. Your doctor will tell you how to get better. It is your responsibility to do the work. Being too busy to get better will prolong your pain, and make it look to a jury like you are not hurt.
No re-examination
Admittedly, to ruin your case in this way you need your doctor’s help. I recently attended a trial where the treating physician (a very fine and capable professional) was brutally beaten (metaphorically) on the witness stand by the defense attorney. The biggest problem was his lack of objective records in the file. Your attorney needs to be able to show through medical records that your treatment was working and that you were getting better. The best way to do this is to have the treating physician re-examine the patient and create a report for the file. This is different from the daily records most doctors have the patient fill-out (where you mark on the picture where it hurts). This should be done every three to six weeks by the doctor. If your doctor doesn’t remember to do this, you need to remind him or her.
The doctor on the witness stand knew the patient was getting better, and approximately how much more treatment the patient would need. However, there was no re-examination to document the file with objective findings that show that the patient was getting better. That makes it easy for the defense attorney to bring into question whether the treatment was necessary or even working.
Poor communication
Building a personal injury case requires a team effort. If you don’t want to ruin your case, be a team player. Occasionally, a client will tell us they are dissatisfied with the progress they are getting in their recovery from injuries. Sometimes they don’t think the treatment is working at all. Other times, they may like the results they are getting for one part of their body (for instance their neck), but don’t feel like they are getting improvement in other areas of their body being treated by the same doctor. Interestingly, they often don’t want to tell the doctor because they don’t want to hurt their relationship with the doctor, or perhaps don’t want to stop the improvement they are getting in the areas that are improving. I suspect that there are also times when a client won’t tell either the doctor or their attorney about their dissatisfaction.
This poor communication hurts the case because it slows down the recovery process, and possibly creates gaps in treatment that are difficult to explain to a jury. Communication with both the treating doctor and the attorney is essential because there are always other options. Treating doctors can try different techniques, or perhaps coordinate with another health care professional to help solve the problems. Good physicians won’t be offended by this, and will be able to speed your recovery process with this better communication. Keeping your attorney in the loop is also vital so that your progress can be tracked. Furthermore, your attorney knows many different doctors in many different specialties who may be able to assist. Being a team player will help you make your case the best it can be.
In conclusion, there are many ways to ruin your personal injury case. I have listed only a few here. However, following the guidelines listed here will help you get the fair compensation you deserve after being injured by the carelessness of someone else.
Article was written by Adam G. Larson Esq.
Friday, October 15, 2010
Fair Market Value
If you have ever been in an auto accident it may not come as a surprise to learn that the insurance company of the person who caused the accident may not pay you the amount necessary to pay-off your vehicle, even if it was damaged or totaled in the accident. This does, however, come as a surprise to many people who have never been in an accident before, and find themselves having to deal with an insurance company for the first time. The reason for this is that auto insurance companies are only required to pay what is called the “fair market value” or “actual cash value” for your damaged car. This value may be less than what you actually owe on the car. This is because many auto loans are structured so that during the first couple of years the value of the car depreciates faster than the balance of the loan. The majority of your payments in the first two years of an auto loan go to paying off the interest on the loan. After that, a larger percentage of each payment goes toward paying down the principle of the loan. As this occurs, the market value of the car depreciates. Many times when you drive a new car off the lot, the value of that car depreciates a thousand dollars or more. Even if you owe more money on your car than it is worth at the time of the accident, the insurance company is only required to pay you what the car is worth, and nothing more. To make matters worse, insurance companies often will “low-ball” you when it comes to what the actual fair market value is. One way of insuring yourself against losing a large amount of money if you find yourself in this situation is to purchase GAP Insurance. GAP Insurance covers you for the difference between what you owe on the car and what the car is worth. So if you are involved in an accident and owe more than what your car is worth, paying for GAP Insurance will ensure that you get the difference. Having an attorney assist you in dealing with the insurance company can also help assure that you do indeed get the fair market value for your vehicle and that you are paid for the medical and other related expenses incurred because of your accident. If you have been in an accident call us today!
Tuesday, October 5, 2010
We Have a YouTube Channel.
Larson Law now has a YouTube Channel. It has a number of videos on topics that affect you. To see the videos just go to youtube.com and type in Larson Law Utah. As of right now we have a couple of videos about "Tort Reform" but we will continue to add videos as we come across them.
Wednesday, September 29, 2010
What is PIP? Who has it? How can it help/hurt me?
Personal Injury Protection (PIP or “No-Fault”) coverage is required by law in the state of Utah on all auto insurance policies. It is basic coverage provided regardless of fault, through your own automobile insurance policy, or the policy covering the car you may be riding in as a passenger. It is also possible for passengers to make a claim through their own insurance company. If you were involved in an automobile accident as a pedestrian or as a bicycle-rider the PIP coverage of the driver that hit you is responsible for covering you. Motorcycle owners are not required to purchase PIP insurance. However, some motorcycle owners purchase a special insurance for motorcycles that includes “Med Pay,” which is similar to PIP.
PIP insurance benefits will cover, up to certain limits, your medical bills, wage loss and household expenses, if any, that arise from your accident. If available, PIP must be utilized before any other policy can be considered as a source of recovery.
What are the benefits of Personal Injury Protection?
1. The reasonable and necessary medical bills and expenses up to at least $3,000 per injured person. It is also possible that the PIP coverage on your policy has more than $3,000 available.
2. Up to 85% of you lost wages or $250 a week (whichever is less). For this coverage there is a one year limit.
3. Up to $20 a day for household services. If the accident has limited you ability to perform necessary household services you are entitled to up to be reimbursed for such. There is a one year limit for these services as well.
A claim can be made on your PIP coverage following an accident by contacting the appropriate insurance carrier and filling out an application and wage verification form, signed by each injured party. These forms are provided by the insurance company and are available upon request. The attending physician must also sign the forms and submit any subsequent bills to that insurance company. It is important to know that your insurance company cannot raise your insurance rates as a result of you making a claim against your PIP coverage. If your insurance company fails to pay these benefits, you may be entitled to additional interest and attorney’s fees on unpaid claims. If this happens it is important to contact an attorney to ensure that your interests are protected. If you are or were involved in an accident you should contact an attorney as soon as possible. It is in the insurance company’s best interest to make sure you walk away with as little as possible. Obtaining legal counsel can help you get the restitution you are entitled to and the benefits you have purchased with your premium dollar.
PIP insurance benefits will cover, up to certain limits, your medical bills, wage loss and household expenses, if any, that arise from your accident. If available, PIP must be utilized before any other policy can be considered as a source of recovery.
What are the benefits of Personal Injury Protection?
1. The reasonable and necessary medical bills and expenses up to at least $3,000 per injured person. It is also possible that the PIP coverage on your policy has more than $3,000 available.
2. Up to 85% of you lost wages or $250 a week (whichever is less). For this coverage there is a one year limit.
3. Up to $20 a day for household services. If the accident has limited you ability to perform necessary household services you are entitled to up to be reimbursed for such. There is a one year limit for these services as well.
A claim can be made on your PIP coverage following an accident by contacting the appropriate insurance carrier and filling out an application and wage verification form, signed by each injured party. These forms are provided by the insurance company and are available upon request. The attending physician must also sign the forms and submit any subsequent bills to that insurance company. It is important to know that your insurance company cannot raise your insurance rates as a result of you making a claim against your PIP coverage. If your insurance company fails to pay these benefits, you may be entitled to additional interest and attorney’s fees on unpaid claims. If this happens it is important to contact an attorney to ensure that your interests are protected. If you are or were involved in an accident you should contact an attorney as soon as possible. It is in the insurance company’s best interest to make sure you walk away with as little as possible. Obtaining legal counsel can help you get the restitution you are entitled to and the benefits you have purchased with your premium dollar.
Tuesday, September 7, 2010
Common Case Killers
This article will begin a series of articles that we will put in this newsletter that we are calling “Common Case Killers.” This will contain a description of several items that will damage or destroy a patient’s case from a legal or persuasion perspective. This series of articles will not contain everything since the number of potential problems in a case is too many to list. Nevertheless, if we can avoid the pitfalls which we will describe in this series, we will avoid the majority of things that are obstacles to financial recovery from the legal standpoint.
1. Multiple Accidents
There is a tendency with some chiropractors and some patients to get excited when a patient is treating for an accident and then, before treatment for that accident is completed, is involved in another accident. Although the patient will undoubtedly have a greater need for care with the second event, the second accident will invariably complicate the prospect of recovery for either event. Insurance companies will do everything they can to help the jury or arbiter confuse the issues. They like nothing better than to be able to point the finger at either a prior or subsequent accident as being the cause or explanation for much if not all the patient’s problems. Furthermore, this scenario often makes it very difficult for even the most skilled practitioner to differentiate where one accident ends and the other begins in terms of injuries and symptoms. This is particularly true when the second accident generates merely an aggravation (however significant) of the diagnoses given in the first accident. Furthermore, a very strange phenomenon often occurs with juries. Some jurors (I’ve actually interviewed jury members post trial on this issue) tend to attribute the multiple accidents as merely the plaintiff trying to “milk” the system. This is true EVEN THOUGH NEITHER ACCIDENT WAS THE VICTIM’S FAULT! The level of suspicion against persons seeking redress through the court system is incredibly high. Some jurors think that it is so unlikely for someone to be involved in two accidents so close together that somehow the victim must have either caused or “willed” the second accident to occur. They treat the victim as if it were the victim’s fault for trying to seek financial redress twice, as if they are “going back to the well” one too many times! Although this phenomenon is hard to believe, it frequently occurs.
Furthermore, without a very clear and logical apportionment, descriptively based upon OBJECTIVE findings, the jury will invariably become confused. If the actual diagnoses in the first accident and the second accident are essentially the same, the defense, as the “masters of muddle” that they are, will try to run both events together in an effort to dilute the effect of whichever accident is the subject of compensation in the case at hand. This is one of many reasons why it is absolutely critical for the chiropractic physician to perform detailed re-examinations during the course of treatment. Detailed re-examinations, properly documented, on separate examination forms in the physician’s file will mark the patient’s progress and will justify the need for and value of the care you are providing (to help you get paid). Also, a recent re-examination can act as a baseline or foundation upon which to delineate and distinguish the problems caused by the second collision. If you are not doing this, you are endangering your ability to receive compensation in the personal injury case arena.
2. Delay in Providing Records and Bills
Regardless of the quality of your records and bills, not sending them to the patient’s attorney as soon as they are prepared, hinders the case. There are many chiropractic physicians with whom we deal with on a regular basis whose staff is easy to work with. They know and recognize my staff when they call treat them politely, and usually provide them with almost anything my staff asks for in the way of information about the patient. They understand that we are the ticket to getting compensation beyond PIP benefits. Many physicians have trained their staff in this regard. One that we are always particularly pleased to work with is Dr. Thompson in Tooele. Not only does his staff routinely send us Dr. Thompson’s records quickly, but if there is anything missing or in question, one phone call is all it takes to get the information cleared up. They are a joy to work with. There are other physicians throughout the state who believe that they must hold on to all their patient’s records until the very last appointment. Unfortunately, sometimes we usually don’t see the records until months after the last appointment. Regardless of the real reason, it creates in our minds the impression that the records probably are not even prepared or created until months after the patient has stopped receiving care. This might even be several months after some of the earlier visits. At this point, the physician’s staff will say something like: “Well, the doctor is a little behind right now.” When we hear that explanation, we know that the problem runs far deeper.
Records should be created the day the treatment occurs. Any other system creates problems. It significantly increases the chances that the records created will be wrong or inaccurate (due to forgetfulness of the doctor or the staff), and it also significantly increases the chance that some dates of service will be skipped or the dates will not be coordinated between the records and the billings.
Why do we need to see the records as soon as they are created? There are numerous reasons. We review the records to make sure they are consistent with what PIP has been billed and paid. We want to make sure all PIP benefits have been exhausted and that any excuses the PIP carrier is giving for nonpayment are not because of a problem with the doctor’s records.
Second, we want to understand what kind of injuries the patient is reporting to the doctor and what kind of care the patient is receiving. Sometimes the patient will tell us things or describe to us symptoms that (surprisingly) do not make it to the doctor’s records. Any incompleteness in the doctor’s records can come back to haunt the physician and damage the case when it comes time for a narrative report or deposition.
Third, we want to monitor the patient to make sure the patient is seeing the physician as often as the physician wants and is not missing appointments. If the patient is missing appointments, we want to know so that we can encourage the patient. We don’t want to rely simply on the physician’s staff to remember to call us before a gap in treatment is created.
Fourth, we want to see the level of treatment the patient is at so that we can understand how far along in the progress toward completion the patient is.
Fifth, sometimes patients tell us things about the physician that we wish they would discuss with the physician. Sometimes patients complain that they are not making progress, or that every treatment visit is the exact same, or that they are still hurting with some symptom they don’t feel the physician is addressing. They ask us for other treatment options. Understand this: we will never encourage a patient to not see their chiropractic physician. The only time that we will ever give other treatment suggestions to the patient is when the patient specifically asks us for those other treatment options. We believe in beginning first with chiropractic care and allowing the chiropractic physician the first chance to treat the patient and make progress with the patient. However, many times patients ask us for other treatment choices. It is tough for us to make any suggestions to them if we have no idea what kind of treatment the patient has received. In the end, patients are responsible for their own care and they decide who, what, and how much treatment they receive.
Sixth, we usually like to share the records with the insurance adjuster as early as possible in the process of the case. This allows the insurance adjuster to set appropriate reserves for the case and anticipate the settlement negotiations as far ahead of time as possible. Sharing these documents will speed up the evaluation of the case and eventual procurement of a settlement offer when the case is completed. We will not settle the case before the patient is either completely finished treatment or is in the final stages of wrapping treatment up and we have factored the amount of necessary future care into the value of the settlement.
Seventh, sometimes in the course of the case there will be a billing issue or records issue with the physician’s records. Many of you reading this have had experience with our office questioning or trying to clear up some aspect of the treatment process with your office and the insurance company. We care. We get involved. We want to make sure that there is not a communication problem between you, the health care provider, and the adjuster who will eventually be writing the check. Without your records and billings, we are operating blind. Or, in the alternative the problem becomes a roadblock to settlement many months down the road when we are trying to solve this problem instead of finalizing settlement.
Eighth, often there is a need for your records and billings to be sent to other professionals involved. That may include second opinion physicians, life-care planners, functional capacity evaluators, or others who need the records to assist us in evaluations and documentations to build the case.
Finally, and maybe most importantly, it allows us to continue a constant evaluation of the case so as to know how to deal with the case and the client as we move through the process. For example, if the client/patient is aggressively and wildly complaining of constant unrelenting pain to us but we note that the physician’s records indicate that the patient is only reporting pain at a level of 1-2, then we know that either the patient is “playing us” or is not telling the physician what they should. This inconsistency is a red flag. It matters because if the patient tells the defense attorney in a deposition the same thing he tells us, it will create problems in the case. We need your records for knowledge. Knowledge is power.
3. Weak Witness
The last case killer we will talk about is a weak witness. What kind of a witness does your patient make? What kind of witness does your patient’s family make? If the patient is likeable, credible, reasonably articulate, and the kind of witness the jury will feel comfortable with, the case will be stronger. If that is not the case, it creates a problem when the patient and his family members are called to testify about the changes the patient made between before and after the collision. The way the patient testifies in his or her deposition is one of the big elements in how the case will be evaluated for settlement and for potential trial. This is a vague category that the physician can’t do much about. Nevertheless, it is something the physician’s should understand and keep in the back of their minds as they treat the patient and have expectations for a fast, fair resolution of the case. Let’s face it. Most chiropractic physicians are very friendly and generally get along well with their patients. Nevertheless, you have your favorite patients, and you have your less favorite patients. Juries will see it the same way. It may not be fair, it may not be “justice;” but, it is reality and becomes one of the most important factors the insurance companies use to evaluate the case. Accordingly, we are mindful of this as an issue. There isn’t much either one of us can do about it. We will always prepare the patient before the patient’s deposition or the time to testify at trial. However, there are many things we cannot change and no amount of “wood shedding” will make a difference.
-Bryan A Larson
1. Multiple Accidents
There is a tendency with some chiropractors and some patients to get excited when a patient is treating for an accident and then, before treatment for that accident is completed, is involved in another accident. Although the patient will undoubtedly have a greater need for care with the second event, the second accident will invariably complicate the prospect of recovery for either event. Insurance companies will do everything they can to help the jury or arbiter confuse the issues. They like nothing better than to be able to point the finger at either a prior or subsequent accident as being the cause or explanation for much if not all the patient’s problems. Furthermore, this scenario often makes it very difficult for even the most skilled practitioner to differentiate where one accident ends and the other begins in terms of injuries and symptoms. This is particularly true when the second accident generates merely an aggravation (however significant) of the diagnoses given in the first accident. Furthermore, a very strange phenomenon often occurs with juries. Some jurors (I’ve actually interviewed jury members post trial on this issue) tend to attribute the multiple accidents as merely the plaintiff trying to “milk” the system. This is true EVEN THOUGH NEITHER ACCIDENT WAS THE VICTIM’S FAULT! The level of suspicion against persons seeking redress through the court system is incredibly high. Some jurors think that it is so unlikely for someone to be involved in two accidents so close together that somehow the victim must have either caused or “willed” the second accident to occur. They treat the victim as if it were the victim’s fault for trying to seek financial redress twice, as if they are “going back to the well” one too many times! Although this phenomenon is hard to believe, it frequently occurs.
Furthermore, without a very clear and logical apportionment, descriptively based upon OBJECTIVE findings, the jury will invariably become confused. If the actual diagnoses in the first accident and the second accident are essentially the same, the defense, as the “masters of muddle” that they are, will try to run both events together in an effort to dilute the effect of whichever accident is the subject of compensation in the case at hand. This is one of many reasons why it is absolutely critical for the chiropractic physician to perform detailed re-examinations during the course of treatment. Detailed re-examinations, properly documented, on separate examination forms in the physician’s file will mark the patient’s progress and will justify the need for and value of the care you are providing (to help you get paid). Also, a recent re-examination can act as a baseline or foundation upon which to delineate and distinguish the problems caused by the second collision. If you are not doing this, you are endangering your ability to receive compensation in the personal injury case arena.
2. Delay in Providing Records and Bills
Regardless of the quality of your records and bills, not sending them to the patient’s attorney as soon as they are prepared, hinders the case. There are many chiropractic physicians with whom we deal with on a regular basis whose staff is easy to work with. They know and recognize my staff when they call treat them politely, and usually provide them with almost anything my staff asks for in the way of information about the patient. They understand that we are the ticket to getting compensation beyond PIP benefits. Many physicians have trained their staff in this regard. One that we are always particularly pleased to work with is Dr. Thompson in Tooele. Not only does his staff routinely send us Dr. Thompson’s records quickly, but if there is anything missing or in question, one phone call is all it takes to get the information cleared up. They are a joy to work with. There are other physicians throughout the state who believe that they must hold on to all their patient’s records until the very last appointment. Unfortunately, sometimes we usually don’t see the records until months after the last appointment. Regardless of the real reason, it creates in our minds the impression that the records probably are not even prepared or created until months after the patient has stopped receiving care. This might even be several months after some of the earlier visits. At this point, the physician’s staff will say something like: “Well, the doctor is a little behind right now.” When we hear that explanation, we know that the problem runs far deeper.
Records should be created the day the treatment occurs. Any other system creates problems. It significantly increases the chances that the records created will be wrong or inaccurate (due to forgetfulness of the doctor or the staff), and it also significantly increases the chance that some dates of service will be skipped or the dates will not be coordinated between the records and the billings.
Why do we need to see the records as soon as they are created? There are numerous reasons. We review the records to make sure they are consistent with what PIP has been billed and paid. We want to make sure all PIP benefits have been exhausted and that any excuses the PIP carrier is giving for nonpayment are not because of a problem with the doctor’s records.
Second, we want to understand what kind of injuries the patient is reporting to the doctor and what kind of care the patient is receiving. Sometimes the patient will tell us things or describe to us symptoms that (surprisingly) do not make it to the doctor’s records. Any incompleteness in the doctor’s records can come back to haunt the physician and damage the case when it comes time for a narrative report or deposition.
Third, we want to monitor the patient to make sure the patient is seeing the physician as often as the physician wants and is not missing appointments. If the patient is missing appointments, we want to know so that we can encourage the patient. We don’t want to rely simply on the physician’s staff to remember to call us before a gap in treatment is created.
Fourth, we want to see the level of treatment the patient is at so that we can understand how far along in the progress toward completion the patient is.
Fifth, sometimes patients tell us things about the physician that we wish they would discuss with the physician. Sometimes patients complain that they are not making progress, or that every treatment visit is the exact same, or that they are still hurting with some symptom they don’t feel the physician is addressing. They ask us for other treatment options. Understand this: we will never encourage a patient to not see their chiropractic physician. The only time that we will ever give other treatment suggestions to the patient is when the patient specifically asks us for those other treatment options. We believe in beginning first with chiropractic care and allowing the chiropractic physician the first chance to treat the patient and make progress with the patient. However, many times patients ask us for other treatment choices. It is tough for us to make any suggestions to them if we have no idea what kind of treatment the patient has received. In the end, patients are responsible for their own care and they decide who, what, and how much treatment they receive.
Sixth, we usually like to share the records with the insurance adjuster as early as possible in the process of the case. This allows the insurance adjuster to set appropriate reserves for the case and anticipate the settlement negotiations as far ahead of time as possible. Sharing these documents will speed up the evaluation of the case and eventual procurement of a settlement offer when the case is completed. We will not settle the case before the patient is either completely finished treatment or is in the final stages of wrapping treatment up and we have factored the amount of necessary future care into the value of the settlement.
Seventh, sometimes in the course of the case there will be a billing issue or records issue with the physician’s records. Many of you reading this have had experience with our office questioning or trying to clear up some aspect of the treatment process with your office and the insurance company. We care. We get involved. We want to make sure that there is not a communication problem between you, the health care provider, and the adjuster who will eventually be writing the check. Without your records and billings, we are operating blind. Or, in the alternative the problem becomes a roadblock to settlement many months down the road when we are trying to solve this problem instead of finalizing settlement.
Eighth, often there is a need for your records and billings to be sent to other professionals involved. That may include second opinion physicians, life-care planners, functional capacity evaluators, or others who need the records to assist us in evaluations and documentations to build the case.
Finally, and maybe most importantly, it allows us to continue a constant evaluation of the case so as to know how to deal with the case and the client as we move through the process. For example, if the client/patient is aggressively and wildly complaining of constant unrelenting pain to us but we note that the physician’s records indicate that the patient is only reporting pain at a level of 1-2, then we know that either the patient is “playing us” or is not telling the physician what they should. This inconsistency is a red flag. It matters because if the patient tells the defense attorney in a deposition the same thing he tells us, it will create problems in the case. We need your records for knowledge. Knowledge is power.
3. Weak Witness
The last case killer we will talk about is a weak witness. What kind of a witness does your patient make? What kind of witness does your patient’s family make? If the patient is likeable, credible, reasonably articulate, and the kind of witness the jury will feel comfortable with, the case will be stronger. If that is not the case, it creates a problem when the patient and his family members are called to testify about the changes the patient made between before and after the collision. The way the patient testifies in his or her deposition is one of the big elements in how the case will be evaluated for settlement and for potential trial. This is a vague category that the physician can’t do much about. Nevertheless, it is something the physician’s should understand and keep in the back of their minds as they treat the patient and have expectations for a fast, fair resolution of the case. Let’s face it. Most chiropractic physicians are very friendly and generally get along well with their patients. Nevertheless, you have your favorite patients, and you have your less favorite patients. Juries will see it the same way. It may not be fair, it may not be “justice;” but, it is reality and becomes one of the most important factors the insurance companies use to evaluate the case. Accordingly, we are mindful of this as an issue. There isn’t much either one of us can do about it. We will always prepare the patient before the patient’s deposition or the time to testify at trial. However, there are many things we cannot change and no amount of “wood shedding” will make a difference.
-Bryan A Larson
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