subject: Six Ways A Physician's Office Can Assist Its Personal Injury Patients' Attorneys [print this page] In my 25 years of experience as a personal injury attorney, I have dealt with many of the healthcare facilities in the Las Vegas area, who treat patients that have been involved in accident cases.
Some physicians that deal with personal injury cases on a regular basis are aware of the following office procedures that can be extremely helpful on personal injury claims and lawsuits:
1. Timely Production of Bills and Records.
Most lay persons would be surprised to know how long it takes to receive medical bills and records from some healthcare facilities. Sometimes, it takes months to receive bills and records. Healthcare providers can charge $0.60 per page for their records. We find that most healthcare providers are unaware of delays by their office concerning requests for bills and records. The faster that the attorney can receive the bills and records, the more quickly he can settle the client's personal injury claim, and pay the client's healthcare providers for services rendered.
We find that staff turnover is largely responsible for delays on requests for bills and records. We have the most problems with outside billing companies that provide billing services for multiple providers. Outside billing services are a nightmare to work with. They are hard to reach and are more non-responsive to attorney office contact.
When we attempt to obtain a complete copy of the entire medical file during a deposition, we are often told by the healthcare provider that they can't provide a copy of the bills and records. This must be done by advance notice.
With litigation, time limitations are always involved. Therefore, if a provider delays in providing the attorney with bills and records, this may contribute to sanctions on the part of the attorney, or dismissal of the case, if records cannot be provided in a timely manner. If the patient is still treating as his case approaches a trial date, any new records and bills must be produced prior to the discovery cut-off date, which is usually 45 days prior to trial.
2. Balances.
Information concerning total charges and balances is very important to the personal injury attorney. One would think that an attorney just makes a call to a healthcare provider and he can immediately obtain information on total charges, and any balance that is due and owing, after payment by insurance, and after application of provider discounts. We find that oftentimes we cannot get this information from the healthcare provider.
We need to have this information in order to settle cases, and to participate meaningfully in mediation and settlement conferences. Once again, it should not take weeks or even days in order to obtain this information. The attorney's office needs access to this information. Once again, this problem is magnified when outside billing company's are involved.
3. Reductions.
In order to get cases settled and to meaningfully participate in settlement conferences and mediation, it is necessary for the attorney to know ahead of time what reductions, if any, the healthcare provider is willing to accept. During the mediation or settlement conference, if an offer is made, the attorney must be able to tell the client what he or she will end up with as a net recovery during the proceeding.
The attorney does not know how much money will be offered to settle the client's case. Therefore, the attorney will contact the healthcare provider, usually in writing (via fax) for pre-approved reductions prior entering into a mediation or settlement conference. Most healthcare providers are not aware of how mediations and settlement conferences work. It appears that mediation and settlement conferences currently are being utilized more frequently in an attempt to resolve claims.
4. Custodian of Records Affidavit.
In order to authenticate medical bills and records for admissibility into evidence, it is necessary for the attorney to authenticate these documents. This can be done with a Custodian of Records Affidavit. My office, as a matter of procedure, sends with every request for bills and records, a Custodian of Records Affidavit. These certificates are sometimes ignored by healthcare providers.
Generally speaking, we receive bills and records without an executed Custodian of Records Affidavit. The medical records, for purposes of litigation, cannot be admitted into evidence without the Custodian of Records Affidavit. Most judges will not admit bills and records into evidence without the executed Custodian of Records Affidavit.
In order to respond to the affidavit properly, the healthcare provider should be able to provide a notarized signature by the Custodian. Our office, as an alternative, will send two Custodian of Records Affidavits. One has a form for notarization, and the other has a statement stating that the custodian signs under penalty of perjury. The second alternative may not work with some judges. Therefore, it is critical if the Custodian of Records has access to a notary for proper execution of the Custodian of Records Affidavits.
5. Arthritis Defense.
Most personal injury cases involve injuries to the neck and back. The defense of these claims largely involves concentration on degenerative arthritis or degenerative changes in the spine.
The healthcare provider should not let the defense attorney set up their case by catching the healthcare provider off guard to comment on pre-existing degenerative changes that appear in the patient's diagnostic tests. For the most part, I have been informed by healthcare providers that degenerative changes such as spondylosis are generally asymptomatic. These degenerative changes increase the susceptibility of the patient to risk of injury. This is very important on low impact auto accident cases.
Degenerative changes may decrease the injury threshold for an accident, increase the length of treatment, and produce more chronic conditions. Therefore, it is important for the healthcare provider to understand the concept because anytime a diagnostic test shows degenerative changes, the defense will concentrate on this in an effort to defend the case, and to attempt to show that any symptomology that the patient had post accident was due to degenerative changes, and not to the subject accident.
6. Medical Records From Other Healthcare Providers.
It is the position of our Discovery Commissioner that a healthcare provider can testify on medical records from other healthcare providers that are in his file. There are two types of medical experts. The treating physician and the medical expert. The treating physician can comment on medical necessity, and the reasonable and customary nature of outside healthcare referrals without being designated as a medical expert. These types of charges involved MRI's, and referrals to specialists like orthopedic doctors and neurologists.
The healthcare provider should be able to testify that the services provided by these outside facilities were medically necessary, and that their charges were reasonable and customary. Obviously, it will be necessary for the doctor to not only request a copy of the medical report from the referred facility, but also must obtain a copy of their bill.
All of the areas covered in this article should be common knowledge to healthcare providers that are involved with personal injury cases. We have seen a tremendous turnover in medical facilities that deal with personal injury cases in recent years. Many of the new healthcare providers that are treating patient's on personal injury cases, do not have much experience at litigation. The information contained in this article is critical to the healthcare provider in understanding his role in assisting his patients on injury claims and during litigation.
by: Allen Cap
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