There is no greater frustration for a chiropractor than treating a patient for months, achieving a good result, and after submitting a detailed narrative outlining your wonderful care, receiving a call from the attorney informing you for the first time the case had been dropped several weeks after the attorney was initially hired due to evidence your patient, for whatever reason, did not have a good case. Sound familiar? And guess what else, you are probably going to hear this story more and more in the future unless you take action now to avoid it.
The problem is not a simple one and the answer is only to be found in a careful analysis of the different interests involved. Different interests; “What different interests?” you say. “Isn’t the patient’s health the primary interest?” “Don’t I have a right to be paid when I take a patient in good faith, with the method of payment being a letter from a lawyer promising to pay from final settlement?” “Yes, doctor,” the attorneys say, “But, you have to stand in line, and if, by some miracle we are able to collect a fair settlement, you will be paid, assuming the patient doesn’t demand all the cash after paying my fees.”
This time and age we are passing through in American society is one of great change. Change is everywhere. Look in any arena, professional services, manufacturing, retail, or government and you see changes, not just minor adjustments, but major, gut wrenching, soul tormenting overhauls of what we were comfortable with, and what we could depend upon, for ourselves, and our survival as professionals.
A few of the changes relating to being paid for patient care after cases are settled are as follows:
- Insurance companies are increasingly refusing to honor assignments, and liens, even though legal, assuming few, if any, doctors will actually file suit to enforce their rights.
- Attorneys are very reluctant to file suit in “soft tissue cases” due to low jury verdicts, nation wide.
- More cases are being flatly denied by insurance adjusters who are armed with databases showing prior claim histories, prior injuries, and previous health problems.
- Attorneys are reluctant to send out “letters of protection”, which promise to pay from final settlement due to the distrust of jurors when informed the doctor, who is the expert witness, and lawyer are in a sense working together to collect money for the patient.
There are now many chiropractors working for the insurance companies as consultants, who, seemingly on demand, will say “too much treatment, too long, way too much charge, other causes of condition, and the patient was referred to a specialist without reason, or should have been referred to a specialists after not responding to initial care.”
Your reaction to problems reasonably will be to look at others to blame. Are insurance companies the bad guys? Maybe it’s the attorneys screwing things up for all of us. Maybe “cash practice” is the only way. Perhaps no one is really at fault. As an attorney in practice for 22 years, who began in a small community in south Texas and later moved to San Antonio, I think the time has come when society in general now thinks and acts the way people in small, conservative communities have for decades, if not centuries. Everyone is fed up with waste, welfare, fat cats in government, and anyone who is looking to us for money without serious justification, either as a consumer, or a juror.
Think about it. If you look at paying for health care, and that includes chiropractic services, like you look at buying any other product or service, you would be first to admit you are a careful shopper. You look as the cost and consider the benefits. You look around for discounts. You ask for estimates and the “bottom line.” Admit it, we all do it, from telephone directory ads to the equipment suppliers. Insurance companies have always viewed health care as a negotiable commodity, not a necessity at any price. Only now, they have become good at it. They, insurance companies, have followed your advice. They have hired chiropractors with good credentials to act as consultants to shield and insulate them from “bad faith” claims when they deny, cut, and often criticize your treatment program, your patient, and every detail of an accident claim, from reconstruction of the accident, to the bio-dynamics of injury. You and countless loyal patients have proven your point, and that is that chiropractic works. Sometimes, however, your patient’s legal claim for damages may not.
Insurance defense firms are not unaffected either. Many good defense attorneys are working lawsuits on a capitated bases, charging a flat, low fee for defense in routine whip-lash cases. Now the insurance adjuster doesn’t really care so much if your patient’s attorney threatens a law suit. “So what,” they chide, “chances are a jury will award even less then our present offer, and even after attorney fees, we save money.” It may seem sad, but this scenario is now a reality to be dealt with honestly, with a plan to survive successfully, even if that means redefining the term success.
How to begin? Go to the fundamentals. If a patient comes in after a minor auto accident, asking to be treated without charge until the case is settled, look seriously at both the patient and “the case.” Chiropractors, now more than ever, must accept a transfusion of “lawyer blood” into their systems, along with the acceptance that not all lawyers, and maybe only a few, can be trusted to screen and investigate cases carefully, and not send you empty promises to pay in weak, poorly prepared and quickly dropped cases.
The patient, and the viability of the patient’s case must be initially suspect. I know one chiropractor who refuses to accept assignments or liens from a patient unless and until that patient sees an attorney whom the doctor knows will evaluate every detail carefully and not take the case if there is not a high probability of full recovery. The risk factors to be evaluated by an attorney are not new, and have been around forever.
Specifically, the risk factors in most auto (CAD) soft tissue cases are as follows:
1. No evidence of impact. I am familiar with most of the research and arguments supporting the conclusion injuries can and do result from crashes which do not cause physical damage to the vehicles. The research is good and the conclusions of the scientists are undeniable. Unfort-unately, jurors bring their “common sense” with them, and so do adjusters. I will guess that, from my surveys of verdicts here in Texas over the past five years, the large majority of people don’t believe it and will not award money when you try to sell it to them. I’ve seen cases, good cases, go to trial recently, with good lawyers and good clients, and receive jury verdicts of little more than the actual medical expenses.
If there is no evidence of impact, and if you can’t see it, would you as a juror award as a result of it, regardless of high priced expert opinions? Look at your patient’s car. Photograph it. Put the patient in the driver’s seat in the position of impact and snap a photo of the patient’s body and auto interior from the open passenger door. How many patients or their attorneys do that and give you copies for your file?
That one effort has helped me convince otherwise stingy adjusters that my female, slim, side looking, low head supported, unsuspecting client was injured and deserved fairness.
I routinely get pictures of the undercarriage of vehicles. Compressed energy absorbers or bumper isolators in the front or rear leave tell-tale markings that can be photographed and used to prove substantial energy transference to a vehicle occupant. Some of these absorbers are liquid filled and actually rupture and leak, leaving an image on a photograph which cannot be ignored. But, as you might suspect, adjusters never take these photos. You can. Just put an auto-focus Polaroid or modern 35mm auto-focus camera with flash on the ground and shoot up under the patient’s car. Why? To help you give a professional opinion that “this accident caused my patient’s condition; I saw the evidence of impact; I have pictures of what I saw.”
The photos may not make it to a jury in trial, but, as experience has proven to me, they go a long way in persuading the adjuster the injury occurred, especially after the adjuster has taken the statement of the insured who caused the accident who swears it was only a “minor tap” and left no damage.
2. Prior injuries, accidents, and health problems. Insurance companies subscribe to databases, which, for lack of a better description, tell all about everybody. If your patient suffered a whiplash eight years ago, and made any claim for it, the adjuster will know all about it. The adjusters delight in reading your elaborate, well intended reports which say this patient’s history plays no part in your current evaluation, often referred to as “non-contributory.”
If prior injuries are there, and not disclosed to you and reflected in your records and reports from the beginning, your patient and your bill are at risk of claim denial when the true history is disclosed. Juries universally react poorly to attempts to hide evidence, and adjusters know this. So, please, impress on your patient about the need to be absolutely truthful and accurate in filling out your forms asking about prior injuries, treatment, disabilities, settlements, injury lawsuits, and any health condition which could have any effect on your current diagnosis or conclusions about the extent of injury and that this accident caused the current injury.
What about established patients?
Do you keep the patient’s history current in one file, or do you like some doctors make the mistake of reinventing the wheel each time an old, established patient has a new accident. If your patient has four accidents over five years, do you pull every file and x-ray for review when a new accident occurs?
Remember, insurance companies share information. That old history exists in files, in attorneys’ offices, in claim files, and low and behold in your own files which you may forget or rather hope will not be brought up in the current injury case. It is embarrassing to write a report saying the patient’s history is “non-contributory,” and a month later, have the claim denied when the adjuster gets a print-out showing you treated the patient for the same type injury a year before, three years before, and five years before, with the same comment used in each case.
Keep that patient’s history file in one folder, forever. Refer to it, update it, and disclose it with each new injury. If you and your patient get caught hiding that history, you, your patient, and the patient’s attorney lose credibility, a commodity that is essential for future success. Attorneys can deal with the truth, and argue skillfully that the law protects the weak as well as the strong, meaning those patients with preexisting health conditions and those without. You can’t explain deception, innocent though it may be, in a personal injury case when dealing with an insurance adjuster who holds the purse strings.
3. Excessive diagnostics, treatment, and referrals. As a risk factor in the evaluation of claim settlements, excessive chiropractic care is very prominent. I attend 30 to 50 hours of seminar courses put on by trial lawyer associations annually. In every seminar I am given a notebook with written materials, many of which relate to winning auto accident cases and presenting soft-tissue injuries to adjusters and juries. For years now I have asked why trial lawyer seminars never cover how chiropractors can be prepared as experts, and win cases.
The answer has been and still is consistent. First, I am given a suspicious look after I ask the question. The predictable answer is usually in terms of poor verdicts, low settlements, and problems dealing with clients, who on orders from the chiropractor, are treated anywhere from 60 to 200 times after a “minor” accident, with the final bill ranging from $6,000 to as high as $22,000 (the highest I’ve seen).
This concludes Part One of Mr. Hensley’s article on “Protecting Your Rights to Be Paid in LOP/Liability Cases.” Part Two will continue the discussion of effective diagnostic tests and referrals. Please contact the author at his offices in San Antonio, Texas at 210-349-3003.