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In Good Form
Obtaining Medical Information.
Editorís note: The documents described and boldfaced in this article are available by clicking on the form's name in the article or by visiting the "Forms" section of our Web site. The forms in this article include:
When assisting in personal injury cases, medical information is the most important verification of your clientís injuries. Obtaining that information is not always as simple as just requesting it. Your request must be specific and supported by a medical authorization form. Furthermore, it must be directed to the medical facility or doctor with a clear promise that the information will be paid for promptly.
One of the biggest decisions is how much information you need. In small cases, the emergency report from the hospital, X-ray reports, doctorís office notes, physical therapy notes and copies of all medical bills might be all you need. In cases where the client has spent considerable time in the hospital, I recommend obtaining the entire hospital record. Some attorneys always request the physicianís entire medical file. However, in small cases itís important to limit the amount of information requested because it can be expensive and will clutter a file with unnecessary information.
In more significant cases, the attorney must at least review the entire file before suit, as that file will be reviewable by the defense attorney. In these cases, many attorneys make the mistake of requesting only the hospital emergency report without making the request clear that the entire record, including nursesí notes, should be sent. Nursesí notes often contain important evidence with respect to pain, suffering, complaints, medication effects and objective symptoms, such as swelling and vital signs.
In many jurisdictions, the hospital record is admissible in and of itself under the business records exception to the hearsay rule. In such jurisdictions, the statute or rule of evidence might require that the hospital record be certified. Make sure you request this when you order the record so that it can be admitted into evidence without having to call a witness to testify as to the accuracy and content of the medical record.
The following letters will help you efficiently obtain and track complete medical documentation:
Remedies for Excessive Medical Information Charges
Personal injury legal professionals throughout the country often complain about doctors, chiropractors and medical facilities that charge exorbitant fees for medical reports, medical records, depositions and in-court testimony. If you are involved in a situation where a medical provider has charged or insists upon receiving an excessive fee for medical information, your first step is to ascertain whether standards or fee schedules for medical information exist in your state.
Some medical associations and even medical or legal symposiums have adopted uniform schedules for medical information, depositions and court testimony. Contact your local bar association, state bar association, state trial lawyers association or state medical association to see if a fee schedule has been adopted. Another source is your state workersí compensation system, which might have adopted fee schedules for depositions, hearing testimony and medical records. If you find a fee schedule, obtain a copy and check the charges in your particular case to determine whether the doctor or medical institution has charged an excessive fee. If the fee appears to be excessive, send a copy of the fee schedule to the doctorís office and request that the doctor reconsider the amount charged and accept a fee consistent with the schedule.
If there are no standards or fee schedules in your state, you can either look to your own experience in receiving bills for medical information or you can contact other attorneys in your area, including defense attorneys who process medical information, to determine a consensus of opinion on the fee. Do not contact the doctor until you have become sure in your own mind that the fee charged is blatantly excessive. Once you have determined that the fee is excessive, consider the following alternatives:
1. Contact the doctorís office requesting reconsideration. Before you actually request the reconsideration, call the office manager of the doctorís office or medical facility and find out if the bill is correct. If the manager or staff member replies affirmatively, politely suggest that the fee is higher than the usual and customary charges for information of this nature. Inquire as to whether there is something different about the information provided that requires a more expensive fee. Then, respectfully request that the staff member reconsider the amount. If the bill is reduced, promise to send a check by return mail and thank them for their courtesy.
Often, a polite letter is more effective than a phone call. A letter allows the doctor or his or her staff to consi≠der the tone of your request and take time to respond. I recommend sending a letter if you donít know the doctor or have never dealt with his or her office before. Use the Request for Reconsideration Letter (click to download).
Another option is to instruct your client to contact the doctorís office or medical facility to complain about the bill. If your client has a long-standing relationship with the doctor or facility, or if the doctor has received a substantial amount of money for medical treatment (for example, a chiropractor who has received several thousand dollars for numerous treatments), it might be appropriate for the client to contact the doctor or facility and request a reduction of the bill.
2. Pay the bill in installments. If the bill is substantial, that is, several hundred dollars or more, itís appropriate to send payments on an installment basis. Send a letter indicating that the bill is higher than customary and that your client is unable to pay the cost all at once. Remind the doctor that your fee agreement with the client makes the client responsible for the cost of medical information. See Installment Payment Letter (click to download).
3. Send an amount that you deem fair and indicate that the payment is to be considered in full satisfaction of the charges. If you believe there is a significant chance that your case will settle and that you will not require the doctorís testimony at trial, and if you donít expect to have future contact with this particular doctor or facility, you can simply send a check in an amount you deem fair and reasonable. Attach a letter stating that you consider the check to be in full satisfaction of the doctorís charges. See Partial Payment Letter (click to download).
4. Delay payment and inform the doctor that the amount will be paid at the time of settlement or verdict. One way to deal with an excessive bill is to put it on hold until you have resolved the case. This advice goes against my strong recommendation that medical information be paid for immediately. However, in cases where the fee is absolutely excessive, you can let the doctor know that itís your usual practice to pay for bills immediately, but in this instance itís necessary to delay payment until the funds are available. Remind the doctor that the fee is your clientís responsibility and that itís necessary to wait until the client has received settlement proceeds to pay for the bill.
5. If the doctor insists on an excessive fee before sending the information, forward the payment under protest. There are many circumstances in which doctors request an extremely excessive fee before they will issue a report. In those cases, you should send the amount requested and indicate that you are paying the bill under protest. After you receive the report, if you still believe the charge was absolutely outrageous, write to the doctor and request reimbursement of a portion of the amount paid. If the doctor refuses, you can threaten to report the incident to the state medical licensing board or the state medical association.
Some doctors refuse to come to court or attend a deposition unless they are paid an excessive fee up front. In one case, a prominent surgeon in one of New Englandís largest cities demanded a deposition fee of $3,000 before he would testify. If you are faced with such a situation and you believe the amount requested is extremely excessive, use the subpoena power under your state statutes or rules of procedure to require attendance at trial or deposition, especially in a small to medium case. Explain to the doctor that his fee will be considered by the court after the verdict and that the court will determine whether the amount requested is reasonable. Further advise the doctor that if the verdict is sufficient, your client will consider payment of the full amount requested.
6. Pay the bill. There are circumstances in which you will just have to grit your teeth and pay the bill in full, especially if the doctor is likely to be a witness at trial. I donít recommend alienating your primary witness over $100 or $200. It has been my experience that, despite excessive witness fees, the doctorís testimony was so good that the case settled very reasonably or the verdict was well in excess of the amount offered before trial.
Keeping Small Cases on Track
Most small personal injury cases should follow a fairly expedient timetable. I have seen many cases come to my office from clients who have left other lawyers because their case had not yet settled. When I go through the files on those cases, I often notice that the case is several years old, with a minimal offer from the insurance company. Insurance carriers love these stale files. They know that even if the case proceeds to trial, their ultimate exposure will still be only a few thousand dollars.
Use the Case Processing Timetable (click to download) as a general guideline to assist you in keeping track of your small cases. Also, use the Trial Management Checklist (click to download) to monitor the progress of your case. When you have completed each step, indicate the date in the respective column. Review the checklist periodically to make sure the case is not getting stale and that the proper procedures are being followed.
Small cases get old, forgotten and decrease in value as time goes on. Donít let this happen to your files. Keep your cases on track and avoid having the files become burdensome anchors.
The Key to Medical Records Review
Paralegals play a major role not only in obtaining medical records, but also in reviewing the records when they are received. The key to understanding these records lies in the abbreviations and code symbols frequently used in medical reports, hospital records, nursesí notes and other medical documents. Itís imperative that you understand the meaning of these abbreviations and symbols because they refer to actual conditions of your client.
For example, a reference to ďETOHĒ might mean that the patient had consumed alcohol and was under the influence of intoxicating beverages. Such a reference could be extremely important in your case. Failure to recognize a reference to alcohol consumption could make a difference in the value of the settlement and also would be fatal to your case if you learned about it for the first time at trial. See Common Medical Abbreviations (click to download) for more than 150 definitions on one handy sheet.
Ellsworth T. Rundlett III is a personal injury trial lawyer with more than 30 years of experience, and is a past president of the Maine Trial Lawyers Association. He is the author of ďMaximizing Damages in Small Personal Injury CasesĒ (www.jamespublishing.com or 800-440-4780), from which this article is excerpted.
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