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