Archive for the ‘Physicians’ Category

Physician Assistance on Proof of Wage Loss

Previously I posted a blog on this subject. Since that time, I don’t believe that much has changed with physician’s offices concerning this subject, so I am revisiting this issue to give health care providers another opportunity to make changes to their policies and procedures to assist personal injury clients with proof of their wage loss.

I make the preliminary comment that there is a big difference between the records of physicians who are familiar with the ins-and-outs of personal injury insurance claims and those that do not have this experience.

I have a current auto claim involving a teacher. The client’s medical records say nothing about him missing work, nor do they make any comment about the difficulties that he experienced while at work as a result of his injuries. He had to take off a half day of work to visit the chiropractor. He took several full days off work immediately after the accident. He also missed full days of work periodically because of a flare up on his injuries. There is nothing posted in his medical records about any of this.

The school district does not require a doctor’s excuse for an employee to utilize their sick days or personal leave days. The use of sick days has a damage value equal to the client’s daily rate of pay, even though the injured party did not lose any income because he used them.

I have been informed that some physicians don’t have off-work slips to give to their patients. If your office doesn’t have them, you should generate a simple off-work excuse form. Give one to the client so that they can forward it to their human relations/payroll departments (even if it is not required), so that the reason for the absence can be documented.

Obviously, if the physician doesn’t query the patient about their work absences and the difficulties that they are experiencing at work, then those wage loss details cannot be documented. I don’t believe that many physician’s offices routinely ask their patients if they had to take off work to be able to treat with the provider.

So, in this example, the teacher had about $8,000.00 in wage loss, but the adverse insurance company did not assess any damages for lost income because there was nothing in the medical records, human relations and wage loss documents from the school district to verify that the absences were related to accident-related injuries.

I would like health care providers who treat accident victims to be aware of this insufficient documentation of wage loss damages.

So what can physicians do to assist personal injury patients with verification of past wage loss?

1. The doctor must be cognizant of the fact that wage loss needs to be documented, so that he can query the client about it.

2. Since a doctor’s excuse can be an element of proof for past wage loss, the treating physician should always give the patient a doctors excuse to verify any absence from work, whether the employer requires it or not. The doctor should advise the patient that he should forward the doctor’s excuse to their personnel department, payroll department, or human relations department, so that it becomes part of their payroll/personnel records.

3. The physician should document any absence from work in his patient’s records by referencing how the patient’s condition prevented him from working and/or how the patient’s condition would be exacerbated by the physical tasks associated with the patient’s work.

4. Previously, I have written about how references to “duties under duress” can increase the value of a claim because they objectify pain and suffering. Likewise, the physician should inquire on each visit about how the patient’s condition is affected by work. Are you experiencing any pain while working? Have you missed any days/hours of work because of your injuries and associated pain since your last visit? If so, this information should be documented in the patients medical records. If interim full days of work have been missed, the physician should comment on his opinion concerning whether this missed time from work was reasonable and consistent with the patients injuries. Obviously, this documentation may take a few minutes to do, but it is extremely valuable to verify and take the mystery out of proof of past wage loss.

5. The patient should communicate the difficulties he’s experiencing at work to the physician, even if the physician doesn’t ask about it. When the physician asks the question (how have you been doing since your last visit?), the patient should communicate information concerning his work difficulties to the physician. Documentation of wage loss and difficulties experienced at work is a two-way street. The patient should communicate wage loss and work distress information to the physician, and the physician should inquire of the patient about how his work is affecting his injury, and document this information in his records.

6. Insurance companies don’t like to pay for past wage loss and have been successful in defending wage loss claims because of lack of documentation in medical records. Obviously, if wage loss and work distress information is entered in a patient’s medical records, the insurance companies will be more inclined to award them adequate compensation on their wage loss claim.

Lack of wage loss information in medical records makes these claims easy to defend. Work distress documentation is also important for proper documentation of pain and suffering in general. If the physical requirements of a patient’s work affects their accident-related pain and suffering, then documentation of this work distress must be noted in the patient’s records.
This is a common sense plan of the verification and documentation of past wage loss. To my knowledge, nobody has taken the time to articulate to physicians how important proof of past wage loss is to a personal injury claim. Hopefully, this article will result in the beginning of an improved plan for the documentation of past wage loss and the distress that injuries place on a patient’s ability to perform their work-related duties.

When Does a Treating Physician become an Expert Witness in a Personal Injury Case?

Recently, I reviewed a Federal  case that was posted on the Nevada Justice Association list-serve.  This 9th Circuit case interpreted Arizona law regarding the testimony of treating physicians. This decision answers the question:  When does a treating physician’s testimony morph him into an witnesses hired to render expert opinions? If a treating physician renders opinions that go beyond the usual scope of a treating doctor’s testimony, the proponent of the testimony must comply with FRCP 26 (a) (2), which requires a full-fledged expert report stating opinions and the bases for those opinions.

A treating physician is not considered an expert to render expert opinions when his testimony is confined his examination, diagnosis and prognosis of the patient. That testimony is not considered specially retained expert opinion.  But, once the lawyer for the claimant undertakes to elicit an opinion from the physician concerning whether or not a particular traumatic event caused the condition, as opposed to another cause, the physician has been transformed into the type of expert envisioned by the report requirement of FRCP 26.

Treating physicians are often confused about the difference between their role as a  treating physician and their role as an expert witness.

An expert witness is one retained to provide expert testimony in a case.  Generally, the treating physicians are excused from the requirement of this procedural rule requiring a party to timely disclose an exert witness.  A treating doctor may be provided with additional documentation by plaintiff’s counsel.  He may be asked to opine on matters outside the scope of treatment that he provided.  This may involve rendering opinions on the medical care rendered by other physicians.

Physicians are allowed to testify to opinions they formed in the course of caring for the patient.  As soon as the treating physician reviews bills and records outside of what is normally in their file, they become a hybrid expert.

The 7th circuit recently held that a treating physician, who is offered to provide expert testimony as to the cause of the plaintiff’s injury, but who did not make that determination in he course of providing treatment, is required to submit an expert report under FRCP 26(a) (2). The 8th Circuit requires the disclosure of a written report at any time a party seeks to have a treating physician testify concerning the causation of a medial condition, as opposed to merely the existence of a medical condition.

Therefore, it appears that a treating physicians are only exempt from the written report requirement when their opinions are confined to their  course of treatment of the patient.

The Nevada Rules of Civil Procedure provide for  expert disclosure dates deadlines for the exchange of initial expert disclosures.  Rebuttal disclosures are usually due 30 days  after the initial expert disclosure deadline.  Failure to meet these deadlines can be fatal to personal injury case.

So, the treating physician should always assume that his written report will be required in any normal litigation case.  Normal litigation involves those cases that are exempted from arbitration program, and involve damages in excess of $50,000.00.

In Nevada, in cases where damages have a value of $50,000.00 or under,  go first go into the mandatory Court Annexed Arbitration program.  If either side appeals, (assuming no exemption),  the case then automatically goes into the short trial program (one day trial). Although a report may not be essential in an arbitration or short trial case, a  report can be entered as evidence in the arbitration/short trial, and the physician does not need to testify.

If the case involves emergent care, chiropractic treatment or physical therapy, diagnostic testing and  treatment by a M.D. or a D.O., then the M.D. or the D.O. in heir discharge report should comment on causation,  the medical necessity of treatment of all of the patient’s providers, as well as and the reasonable and customary nature of the charges of all providers.

NRCP 16.1 requires the expert report to contain a complete statement of all opinions of the expert,  the basis and reasons for his opinions, the data or other information considered by the expert in forming his opinions, any exhibits or information that he reviewed to support his opinions, the qualifications of the expert, including a list of all publications authored by the expert within the preceding 10 years, the compensation to be paid for his review and testimony, and a list of other cases in which the witness testified as an expert at trial or by deposition, within the preceding four years.

Therefore, a treating physician’s perfect discharge report should cover the physician’s opinions concerning the causation of the patient’s injury (stated to a reasonable degree of medical probability), the medical necessity of the patient’s treatment and the reasonable and customary nature of the charges for all of the patient’s medical treatment. All physicians that are involved with treating  personal injury victims should have a current CV, testimony list, and fee schedule prepared for use in litigation cases.jumping castle store

Therefore, in most personal injury cases involving litigation, the treating physician will be considered to be  at least a hybrid expert. Treating physicians should look at the format for their narrative and discharge reports to see if it meets all of the requirements of an expert report as stated in this blog.

How Can A Physician’s Office Assist Claimants Attorneys On Personal Injury Cases?

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. A Clean Bill.

It is extremely helpful for a personal injury attorney to have a clean bill.  What this means is that the bill contains only the dates and amounts of all charges by the healthcare provider.  A clean bill does not contain any information on health insurance payments and also contains a figure which represents total charges for services rendered by the provider for the accident.  In the event that the attorney receives a bill with insurance payment information, this devalues a claim because the adverse carrier knows that first party insurance has paid all or some of the patient’s bill.  If an adverse adjuster knows that bills are paid by first party insurance, such as auto med pay with no right of subrogation, he will offer a lesser amount to settle the claim.  Also, an attorney cannot file any documents with the Court that contain a patient’s social security number.  This data must be redacted. Don’t include the patient’s social security number on your bill.   Bills that are submitted to the Court as evidence in a personal injury case must also be redacted for insurance information.

Health insurance claim form(s) are particularly problematic for personal injury attorneys because the insurance information is replete throughout the form and redaction of insurance information is a very time consuming process.

For these reasons, personal injury attorneys love clean bills.

2. Organization of a personal injury medical file.

For reasons stated in No. 1 above, all information regarding insurance should be placed in one section of a medical file.  Once again, the reason for this is because all insurance information must be redacted from medical records which are the subject of a trial.  If all of the insurance information is kept in a separate section of a file and segregated from the medical records, this is very helpful to the personal injury attorney as far as redactation of records is concerned.  Intake forms often include insurance information mixed in with patient history and symptomology.  Redactation is a simple process when all insurance information is segregated.  We can just eliminate those pages from our trial exhibits.

3. Medical necessity.

In order for medical bills to be admitted into evidence, there must be a statement by the healthcare provider concerning the medical necessity of the treatment.  In other words, the treatment must be medically necessary for the treatment of injuries resulting from a particular accident.  Generally speaking, this statement of medical necessity is very helpful to an attorney during an arbitration or a short trial.  In these proceedings, it is not necessary for the doctor to actually appear to give testimony in the event that his medical records contain a statement of medical necessity and other evidentiary requirements.  The doctor in his discharge report or in his medical records can simply state that, “In my opinion, all treatment rendered to the patient (from first date of treatment to last date of treatment) was medically necessary to treat injuries that the patient received in her accident of (date of accident).

4. Medical causation.

In order for a Plaintiff to prevail in a personal injury case, medical evidence must contain a statement by a physician concerning causation.  That statement can be, “It is my opinion to a reasonable degree of medical probability the injuries that I diagnosed and treated the patient for were caused by the accident of (date of accident).”  The healthcare provider can simply include such a statement in his records or narrative reports.
5. Reasonable and Customary Charges.
This statement is extremely helpful on mediation, arbitration and short trial cases.  

In order to admit a medical bill into evidence, the attorney must lay a foundation that the charges for the medical treatment were reasonable in amount and are customary charges for same or similar services in the Las Vegas area.

The physician in his narrative or medical records can once again simply state that, “I have reviewed the billings for this patient.  In my opinion, the charges for services rendered by my facility were reasonable in amount and customary charges for the Las Vegas medical community.”  Once again, this information will eliminate the need to have the medical provider actually testify in an arbitration or short trial proceeding.  This is especially important if there are numerous medical providers.  Attorneys can’t afford to bring all providers to a short trial.  Even if you win, you can only receive $500.00 per expert.

In the event that the healthcare provider does not provide information concerning medical necessity, causation and reasonable and customary charges, the attorney can provide the healthcare provide with an affidavit that he can sign which can be used in mediation, arbitration and the short trial program, so that the medical bills and records of the provider meet legal foundational requirements for admissibility.

6. Depositions.

The healthcare provider should be prepared during deposition to testify concerning medical necessity, causation and reasonable and customary charges.  Oftentimes, healthcare providers during deposition have absolutely no idea of what their facility charged the patient.  They are ill-prepared to testify on matters of reasonable and customary charges.  Many physicians have never seen their client’s bill.  In preparation for a deposition, the healthcare provider should review his bill and the charges and be prepared to testify concerning reasonable and customary charges.  The healthcare provider should also understand and be prepared to testify concerning opinions on medical necessity and causation.  Most healthcare providers give adequate testimony concerning their records, but are very weak when it comes to their testimony in these three areas.

7. 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 .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.

8. 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.

9. 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 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.

10. 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.

11. 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.

12. 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 blawg 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 blawg is critical to the healthcare provider in understanding his role in assisting his patients on injury claims and during litigation.


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