Criteria For Accepting Cases

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.

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!