Beyond Malpractice

Navigating the Physician/Attorney Relationship.

BY BRIAN R. WILSON, ESQ., J.D.

I think it was Rodney King, that famous victim of a police beating caught on tape, who once asked: "Can't we all just get along?" Unfortunately, sometimes attorneys and physicians do not play well together. There are many reasons for this (the "medical malpractice" issue comes to mind). But that thorny issue aside, our worlds often intersect in much less hostile situations. The typical scenario is the patient of yours — and client of mine — who sustains some sort of traumatic injury in an automobile collision.

In more than 20 years of litigating accident cases, almost all of the "problems" attendant to the physician-attorney relationship in these situations are entirely avoidable. Hopefully, this article will point out the anatomy of a personal injury case, explain some of the potholes that crop up along the way and highlight the reasonable expectations of both the physician and the attorney for the best interests of the patient/client.

The Insurance Minefield

In the overwhelming majority of situations, my first meeting/interview with a client occurs well after the collision and well after medical bills have been generated. In a car crash case, for example, there are typically three sources of insurance: my client's auto medical payments insurance coverage, my client's health insurance and the responsible party's liability coverage.

Despite the presence of multiple sources of insurance, it continues to amaze me how weeks or months can go by with my client's medical bills going unpaid.

This occurs for a number of reasons. First, a provider may attempt (usually in vain) to bill the responsible party's automobile insurance company. This usually results in the bill hardly ever being paid. Why? Because most of the at-fault driver's insurance companies prefer to resolve claims with one lump sum settlement figure, typically months after a collision, rather than pay bills in "piecemeal" fashion.

Secondly, the provider may refuse to submit the bill to the patient's/client's health insurance company, because of unfairly low reimbursement rates. This is illegal in Ohio, where I practice, for Ohio law mandates that a provider who contracts with a health insuring corporation to provide healthcare services must seek compensation for those services solely from the health insurance company.

Third, if the provider bills the patient's/client's auto insurance medical payments coverage, sometimes the bills are subject to an "auditing" process in order to determine whether the bills were related to the crash or were reasonable and necessary as a result of the crash.

No matter what the scenario, it can mean that your bill goes unpaid for inordinately long periods of time, which frequently means that my client is turned over to collections, despite having numerous sources of insurance. None of these scenarios are good for you or my client, so it should be the attorney's responsibility to provide your office with all necessary insurance information and assist your office in troubleshooting issues that are delaying prompt payment of your bills. And if all else fails, you should not hesitate to ask your patient's attorney for a "letter of protection," where the attorney agrees to protect your bill out of any successful settlement or recovery made on behalf of your patient. In some states, a valid letter of protection can even obligate the attorney to ensure that your bill is paid even if the client fails to pay the bill.

Records and Bills

In almost all cases, we need to obtain copies of all records and bills for our client's collision-related treatment. Sometimes it is even necessary to obtain the entire office chart to confirm or rule out any pre-existing conditions that may have been present before the crash. Carefully examining the medical records is part of our due diligence in evaluating our client's injury claim. Additionally, insurance companies demand that we provide them with all relevant records.

Clearly, your office is entitled to be paid for producing copies of the records and bills. However, a frequent source of friction occurs when a provider attempts to charge more than the law allows for making copies of records. Some states, like Ohio, have specific laws on how much providers can charge for copies of records. If the provider attempts to charge more than the law allows, this can become an administrative headache and a waste of valuable time for both of our offices. A detailed invoice showing the exact charges for the bills and records, and that comports with all applicable laws, will ensure prompt payment. Certainly, you even have the right to ask for prepayment for the records, and an attorney should always honor such a request.

Medical Reports

Part of the evaluation of a personal injury claim is determining whether our clients will have any sort of chronic problems in the indefinite future or even permanently. A classic example of this is a traumatic eye injury that may or may not result in future vision loss or glaucoma.

Frequently, the physician's detailed records will be silent as to opinions on the patient's medical future, such as the likelihood of future vision loss. And since the attorney and the responsible party's insurance company are interested in the likelihood of future problems attributable to the collision, we frequently will ask for a narrative medical report.

If the attorney requests a narrative medical report, you should expect some direction from the attorney as to the medical opinions he or she is looking to explore. Frequently, we provide our client's treating physician with an attachment to our standard request for a medical report. The attachment includes the following questions we would like the physician to answer in writing:

1. What was the patient's history?
2. What complaints of injury did the patient express?
3. What care and treatment did you recommend for the patient?
4. What was the nature and extent of the patient's improvement and/or recovery?
5. What was your final diagnosis?
6. In your opinion, will any of the injuries, conditions, or symptoms described in your final diagnosis continue to affect the patient in the future?
   a. If your answer is yes, how will the injuries, conditions, or symptoms affect the patient in the future?
   b. If your answer is yes, will the injuries, conditions or symptoms be permanent?
7. In your opinion, which (if any) of the injuries, conditions, or symptoms included in your final diagnosis were directly caused by the incident described in the patient's history?
8. Have you released the patient from your care?
9. What dates was the patient off work under your orders?

You should also expect to be reasonably compensated for writing the report. Charges for written reports can vary according to location, specialty, what is customary and sometimes even local rules of court.

For certain specialties like orthopedics, neurosurgery, ophthalmology and the like, it is not uncommon for us to pay at least $250 to $300 for a detailed medical report. We will almost always advance the money necessary for these reports. However, you should keep in mind that your patient ultimately bears the cost for preparation of the report, as necessary expenses like medical reports are deducted from the amount of any recovery or settlement. And, once again, you should have the right to expect prepayment for the preparation of any such report.

Litigation

The good news is that over 90% of all injury claims settle without filing a lawsuit. However, sometimes a lawsuit and eventually a jury trial is necessary if the parties simply cannot agree as to who was at fault, the nature and extent of the injuries or the value of the claimed injuries. This means that somewhere down the road you may need to testify on behalf of your patient.

The deposition process can be unsettling and less than exhilarating, but it need not be boring, combative and unprofessional. First, if the patient's attorney wishes to take your deposition, you should not be receiving the request 2 to 4 weeks before trial. At a minimum, you should expect at least 2 to 3 months advance notice in order to set aside a date and time that is convenient for you.

Furthermore, unless the case is incredibly straightforward or "run of the mill," it is my practice to set up a pre-deposition meeting with the physician. The purpose of this meeting is to explain to you: (a) the status of the case; (b) why your deposition needs to be taken; (c) any of the medical issues in the case; and (d) any medical opinions you may have about the patient that are relevant to the litigation.

During this meeting, the attorney may wish to look at your original office chart. The purpose is to make sure the attorney has all the records pertaining to the patient, as well as any recent treatment records. Additionally, sometimes the physician's original office chart contains consultation reports from other physicians that may be relevant to the patient's history or the physician's opinions. Sometimes these consultation letters are not included in the records sent to the attorney. For example, if the attorney discovers records or consultation reports that he or she has not been previously provided, they must be turned over to opposing counsel. Finally, the attorney may wish to examine the original records because opposing counsel will have the same opportunity to do so at the deposition.

At the pre-deposition meeting, the physician and attorney should discuss the simplest and most expedient way to explain the patient's injuries, treatment and prognosis, recognizing that a jury of lay persons may not be familiar with complex medical terms. At this meeting, the attorney and physician may wish to discuss the issue of models, diagrams or films that the physician may wish to use during his or her testimony to properly teach the jury as to the medical issues in the case.

Finally, the attorney should give the physician practical guidance as to what questions will be asked and how long the deposition will take. My standard practice at the pre-deposition meeting includes the following: "Even though we have a lot to cover in terms of Jim's injuries, I will try my level best not to take up more than half an hour of your time during my examination. It is not my intention to go over each and every office visit, which can be incredibly boring, but rather I will ask you for a summary of your treatment of Jim — his history, his injuries, how well he recovered, what injuries still remain and his prognosis. In other words, a big picture of the good news and bad news, if any, about Jim's injuries."

Your Deposition

You can view your upcoming deposition in one of two ways: like routine dental work where you would prefer to "just get it over with," or as an opportunity. (And since you don't get paid for undergoing routine dental work, perhaps you should view it as an opportunity.)

First and foremost, it is an opportunity to teach. Have you explained the anatomy and the injuries in a way that high school students unfamiliar with medicine might understand, or did you use words and phrases nobody could spell, much less understand?

Your deposition is also an opportunity for you to impress. In many ways, it is similar to a free seminar. It will be seen by members of the jury, court personnel, other attorneys and anyone else who happens to wander into the courtroom.

During your deposition, did you appear disinterested? Indifferent? Bored? Was your body language such that it screamed: "This is a waste of my time?" Jurors and court personnel take their roles very seriously. They form impressions based upon what you say and the way you say it. I have often spoken to juries after their verdict is returned. Frequently, they have made comments to me like: "If I ever have an eye problem, I know exactly where I'm going for treatment — to your client's doctor. He really knew what he was talking about and seemed to really care about his patient." I have also had jurors tell me after a verdict: "Why did your client go to Dr. Smith? He seemed like he could have cared less about anything or anybody."

The Dreaded Subpoena

A subpoena is simply an order compelling another person or entity to release information. Depending upon your state's laws or rules of procedure, a subpoena can be issued by a notary or an attorney, for example.

Does the fact that your office received a subpoena for records mean that you must automatically comply with it? The short answer is: it depends. For instance, some states' laws protect the release of privileged medical information which, in Ohio, means information unrelated causally or historically to the patient's claim for injuries in a lawsuit. A classic example of privileged information would be a woman's OB/GYN information sought if her claimed injury in a lawsuit is a detached retina.

Privileges and legal issues aside, many states' laws give you the right to clarify exactly what is being requested before you respond to the subpoena and tender the records. If you have any questions about what is being requested or the reasons why, a quick phone call or letter to the requesting party (and preferably all counsel of record in the case) seeking additional information is certainly appropriate.

Furthermore, if one of the parties to the litigation has an issue as to the validity of the subpoena or the propriety of your office releasing the records, she should: (1) notify you in writing of her intent to object to or challenge the validity of the subpoena; and (2) obtain a court order quashing or nullifying the subpoena.

The bottom line: many subpoenas are valid and proper, and some are an improper attempt to compel the release of information that should be protected from disclosure. Your office has every right to clarify the purpose of the subpoena and the information sought and, if issues arise as to the validity of the subpoena, the parties to the litigation should seek an order from the Court that resolves the issue, and provide your office with a copy of the order.

If you as a treating physician have been served with a subpoena compelling your testimony at trial, this means one thing: There has been a serious breakdown in communication between the attorney and physician. Either the physician has refused to cooperate in scheduling a voluntary deposition for his or her trial testimony or the attorney has dropped the ball by failing to schedule your proposed testimony well in advance of the trial date.

Either situation is not good and is a prescription for disaster. From the physician's standpoint, nothing is worse than having to sit on a hard courtroom bench through hours of court delays to be "compelled" to testify by virtue of the subpoena. It is a waste of your valuable time and money. Similarly, you can imagine the attorney's trepidation about putting you on the stand after he's forced you to make a trip to the courthouse to testify.

Who ultimately suffers from this clash of egos or ineptitude? Your patient and the attorney's client. Obviously, a scheduled trial deposition at your office at a time of your choosing is infinitely preferable to a subpoena. The subpoena will ultimately trump any desire of the physician to avoid testifying, so it is much better to work these issues out voluntarily.

The Proper Perspective

The majority of this article has been devoted to measures both of our professions can take to make the litigation process less acrimonious and more professional. However, at the end of the day, this process is really not about the physician or the attorney. It is about the patient. Your patient came to you because he or she sustained an injury and asked you to do your best to make them better. And he or she came to me because someone or their insurance company denied responsibility for the injuries caused. Whatever the reason, part of your ethical obligations to your patient extend to — and include — cooperating in the litigation process.

More than anything else, what your patient and I expect from any physician during the claims process is intellectual honesty. If it is your honest and scientific opinion that your patient's injuries were or were not caused by the crash or are or are not permanent in nature, this is all any patient and their attorney can expect. Conversely, if the opinions in your reports or your deposition testimony are based on your own agenda, a previous bad experience with another patient or attorney, or are skewed because you dislike the litigation process, then you have done a disservice to your patient. And you should simply not accept any patients who have been involved in accidents.

I have been extremely fortunate over the years to work with many kind, caring, thorough physicians who try their best to convey their opinions in an objective and cooperative manner. I'd also like to think that the common courtesy, cooperation and advance planning they received from my office played a small role in minimizing some of the more unpleasant aspects of the litigation process.

I can assure you that your patient will appreciate your effort and realize that your dedication to their best interests extended beyond the operating room or the office examining table. That goodwill is worth far more than the cost of a report or a deposition. OM

Brian R. Wilson, Esq., J.D., is a plaintiff's attorney and partner at Nicodemo & Wilson, LLC, in Canton, Ohio. He can be reached by phone at 330-452-8831 or via e-mail at brian@n-wlaw.com