10 Ways Doctors Can Protect Themselves When Attorneys Try to Influence Patient Care

The prior blog entry discussed ways that attorneys try to control a patient’s medical care to win a case. Below are ten steps that doctors and other health care providers can take to prevent themselves being placed in such scenarios or deal with them more effectively when they occur despite attempts at prevention.

1. Awareness is key. When a  new patient arrives to the office or an existing patient arrives seeking medical treatment for a particular condition or injury, the first step is to determine whether the injury or condition is compensable in some way and whether the patient will be seeking compensation for it. In some cases, this will be easy to determine based on the insurance type (e.g., workers compensation, no-fault insurance) or if the patient acknowledges when asked that an attorney has been hired or that disability is being pursued. In other cases, a patient may deny pursuing compensation but plans to in the near future, is considering it, or is not being honest.  In such cases, consider the history. Was somewhat else alleged to be at fault for the injury (e.g., car accident) or is there someone the patient may blame for the injury/condition (e.g., a doctor misreading a brain CT scan in the ER as not showing signs of an acute stroke when it actually did, resulting in delayed care and worse signs, symptoms, and outcome)? Ask if the person is seeking disability.

2. Document acknowledged compensation seeking, receipt of compensation, and/or retention of legal counsel in the medical note. If the patient denies seeking compensation or having retained legal counsel, document this as well. This way, you have a record of what information was provided to you on this topic when treatment began. If the information changes at some point, document that as well.

3. Ask the patient whose idea it was for the evaluation. If the idea solely came from the attorney, explain to the patient that your practice (an insurance billing) is specifically designed for patients in which referrals originate from other health care providers or from the patient for the sole purposes of improving healthcare (as opposed to pursuing compensation). In other words, you perform clinical evaluations, not legal evaluations.

4. If the idea for the evaluation came from the attorney but was referred by another health care provider, contact that provider to discuss the issue. I have had several cases where I place such a call and the physician tells me. “I have no idea why I am sending the patient for the evaluation. She said her attorney wanted it, so I just ordered it.” In such cases, explain your position to healthcare provider and provide the patient and referral source with contact information of other providers in the area who perform medico-legal work (which is paid for by the attorney).  

5. If the referral was legitimately made by a healthcare provider but the patient is also pursuing compensation, explain that the medical records may be subpoenaed by an attorney/judge and used in a deposition, trial, or settlement negotiations. Explain that the findings may help the patient, have no impact, or negatively impact the compensation case. Explain that you will base your findings on scientific principles and methods and that your findings may be in perfect agreement with what the patients thinks is the problem and expects as a recommendation (e.g., disability status), may be in partial agreement, or that you may have a completely different take.
6. Go through the above information with the patient in an informed consent that you have the patient sign.  Make sure the form has a statement in it that says signing it means that the patient understands what is on the form, had the chance to ask questions, and that any questions have been answered to his/her satisfaction. Explain this out loud to the patient and provide the patient a copy when it is signed. This document can protect you in the future in case of a complaint. If the patient is unwilling to sign the form you can refer him/her to another provider.

7. While there is nothing wrong with clinically evaluating patients who are seeking compensation, make it clear that while you are open to hearing input that you are the one who makes the ultimate diagnostic and treatment decisions, decides how to word documentation, and what to say in a court of law. Be clear that this has nothing to do with ego or arrogance, but after all, you are the one with the health care license and health care degree.

8. While it is perfectly acceptable to advocate on a patient’s behalf, health care providers must be cautious to avoid blind advocacy in which there is an absence of evidence to validate compensation claims. This is especially the case when extensive attempts have been made to find such evidence. While it is true that absence of evidence is not always evidence of absence, many times it is.

9. Do not turn a blind eye to evidence that emerges which runs counter to the patient’s claims. In such cases, it is best to sit down with the patient, express your concerns, and adjust the case conceptualization and treatment plan accordingly. An example would include referring a patient for counseling if significant psychological distress appears to be the main problem as opposed to a mild injury. Do not send patients for indefinite treatments that show no improvement within reasonable time frames. Be sure to measure treatment progress over time.

10. If you eventually have to do a deposition or testify, try your best just to stick with the facts without getting caught up with trying to help one side win or lose the case. The outcome of the case is for the attorneys to handle and the jury to decide. The role of the witness is to assist the court/jury by providing honest testimony that is as objective as possible.