Sunday, September 30, 2012

When Attorneys Control Patient's Medical Care to Win a Case

Consider the following scenario. A 40-year-old man arrives to your office seeking medical treatment for a mild personal injury suffered several weeks or months prior. Unbeknownst to you, the patient has hired a personal injury attorney who suggested that you evaluate him. Over the course of months to years, the patient reports no meaningful improvement in symptoms despite no objective biomarkers that any significant physical damage has occurred. In fact, the patient may even report getting worse despite all treatment attempts. 

Unbeknownst to the health care provider, the patient is regularly checking in with his attorney and receiving directives to request referrals for numerous therapy services (e.g., physical therapy, occupational therapy) to establish a record of a need for medical treatment to be used in settlement negotiations or an upcoming trial. Along the way, the attorney also directs the patient to make requests for diagnostic imaging (“Can you order an MRI?”), medications (“Can you prescribe me something for the pain?”), and specialty evaluations by someone known to the attorney (“Can you refer me to Dr. Smith?”). In health care, the attorney is said to be operating in stealth mode, although in other cases the attorney may be bolder and make these requests directly to the health care provider.

Unable to determine why the patient continues to report persisting symptoms, the health care provider accedes to these requests even though he/she may doubt that they will yield much, if any, benefit. Indeed, that is exactly what happens. For example, the therapists treat the patient but are also unable to provide any meaningful improvement and eventually inform him that no further treatment is indicated.  Within a few weeks, the therapists find out that the patient is back on the schedule for six more sessions, not knowing that the attorney instructed the patient to call the scheduling desk and do so.  The therapists see him again, as he now reports some new symptoms. Incidentally, when some of these patients are later asked why they continued to go to therapy sessions that were not helping, they will answer “Because my attorney told me I have to go.”

Eventually, the doctor who has been managing the patient’s care, receives a letter from the patient’s attorney, requesting a copy of all records and a time to talk on the phone to prepare for an upcoming deposition. The doctor may also be told something along these lines (taken from an actual email sent to me by a physician seeking my assistance on a case):

“The lawyer he (the patient) has hired told me that my response to a multi page letter from ‘independent’ reviewers needs to contain a rebuttal to their assertions that he has no claim. Whatever data I generate from the review of his file and references to papers will need to be made now because, if he does not win this appeal, only the information that I provide in a response can then be used in a subsequent law suit."

The doctor, wanting to advocate for his patient and not cause harm, writes a strongly worded rebuttal to the independent reviewers, clearing the language with the patient’s attorney before sending it in. A deposition, followed by trial testimony, is forthcoming.

The above scenario, and variations of it, occurs with alarming regularity and it is a major cause of increased health care costs, costing millions of dollars a year or more. In such cases, much of the patient’s healthcare outwardly appears to be directed  by the health care provider but is actually being directed by the patient’s attorney . Despite this, years of medical bills are sent to the patient’s insurance company as opposed to the attorney’s law firm.  In addition, the attorney has obtained a free expert witness, taking advantage of the health care provider’s fidelity to the patient and fear that not helping with the legal requests will cause the patient to lose the case, thus causing "harm.". The above scenario raises many obvious ethical and legal pitfalls, the most important of which is the potential for insurance fraud. The next blog entry will discuss steps that health care providers can take to prevent themselves from being placed in these situations or manage them better when they occur.

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