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What the no-fault plaintiffs are saying....

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  • Lawrence
    One of the law firms which often represents medical providers in New York no-fault litigation makes the following statements on its Web site: We aggressively
    Message 1 of 1 , Jan 3, 2011

      One of the law firms which often represents medical providers in New York no-fault litigation makes the following statements on its Web site:

      "We aggressively challenge their reasons for denial of payment:

      Thorough testing is medically necessary after an accident.  Many common procedures, such as MRIs and other scans, are expensive yet required in the diagnosis and treatment of serious injury.  We defend the validity of essential medical procedures. 45 days is an unreasonable deadline for submitting medical bills. Whether the bill is to be submitted by the suffering injured person or the understaffed hospital billing department, less than two months is unreasonable and impractical.  Our law firm helps justify reasonable delays in the submission of medical bills. Independent medical exams (IMEs) invite deception and fraud. The exams are not truly independent—the insurance company chooses the doctor.  Whenever possible, we accompany you to your IME and take our own records of the examination. Examinations under oath (EUOs) are contrived by the insurance companies. They actually hope that the injured victim or the treating physician will not appear.  Our no-fault insurance attorney helps prepare you for your appearance at the EUO."

      Now, as you all know, I do only no-fault defense, but as a journalist, I like to think I can be objective when objectivity is called for.  So I'd like to comment on the above contentions:

      1. Is thorough testing medically necessary after an accident?  The objective answer is, "It depends."  The purpose of medical diagnostic tests is to tell the doctor something he doesn't already know.  The standard of care in the medical profession is to resolve diagnostic dilemmas.  So if the clinical (in-person) exam leaves the doctor wondering what the diagnosis is, and it's important to know right away, then he orders a diagnostic test.  So if a patient comes in the day after an MVA and complains of a sore neck and back, with some numbness and tingling down the right arm, and his range of motion is restricted only by pain, then the doctor can be fairly sure that the patient is in the acute phase of a sprain/strain syndrome.  Take an x-ray just to ensure there are no cervical fractures.  The treatment?  Pain killers and bed rest, and come back in two weeks if you're not feeling better.  No improvement in 30 days?  Then a closer look is necessary.  Another clinical exam, and then, if the patient has radicular symptoms, an MRI may be justified. 

      Why isn't an MRI necessary right away?  Well, let's start with the exception: sometimes an MRI is necessary right away.  When?  When the patient presents with paralysis, loss of bowel or bladder function, or other "emergent symptoms" (i.e., an emergency).  Aches and pains are not an emergency. 

      Often, the prescribing doctor or chiropractor will put in his notes that the MRI is to "rule out herniated disc."  First of all, to rule out something, there first has to be a reason to suspect it is there.  In medicine, you don't need to rule out anything before there's a reason to rule it in.  Second, in the acute phase following a trauma, there is likely to be inflammation and swelling which are going to distort the true anatomical position of muscles and nerves, so a premature MRI isn't going to give an accurate picture of the body structures.  Third, if the disc really is herniated, it's going to be there in a week, two weeks, a month -- in fact, forever.  So what's the rush?  Unless the doctor is planning on performing surgery, it doesn't matter whether a disc is herniated or not.  The treatment is almost always going to be the same: NSAIDs (aspirin, tylenol), hot packs, physical therapy, and most of all, time for the body to heal naturally.  So ordering an MRI less than a month after the accident is just $879.73 that adds nothing to the patient's treatment or healing.

      In no-fault practice, it needs to be emphasized that diagnostic tests don't make the patient feel any better.  In fact, at least one test, the EMG, is very painful and, in my opinion, very overused in no-fault practice.  Most neurologists will tell you that EMGs are rarely appropriate in trauma cases.  Why?  Because the main utility of EMGs is to discover why the patient has neurological symptoms.  In an auto accident case, the doctor knows why the patient has pain: he's been in a traumatic accident.  EMGs are typically used to rule out neurological disorders such as MS.   The plain fact is this: a no-fault patient is much more likely to be subjected to expensive diagnostic tests than patients presenting with the same symptoms whose medical bills are being paid by ordinary health insurance.

      Very few insurance defense attorneys understand medicine.  But without this knowledge, insurance carriers are at a severe disadvantage.

      2. Is 45 days sufficient time to submit a medical bill?  While that attorney's web site says that less than 2 months in unreasonable and impractical, they don't say why.  The phone company, the electric company, and the credit card company send bills every 30 days.  So does just about every other business that sends out bills. Why can't a medical office send bills within 45 days?   And wouldn't you think they would want to send out bills in a timely fashion, so as to get paid sooner?  Notice that plaintiffs don't complain that insurance companies only have 30 days in which to pay these bills.

      3. Do independent medical examinations invite deception and fraud?  No, they don't "invite" deception, and they don't "invite" fraud.  They do have an inherent weakness, in that the IME only gives the doctor one opportunity to assess the patient, and the IME is only as good as the doctor performing it.  But.... as almost any doctor will tell you, it doesn't take long to determine that a patient has no symptoms.  It also doesn't take long to determine that a patient's subjective complaints of pain have no real organic basis (some people just like to complain -- for psychological and/or financial reasons).  But there is a built-in checks-and-balances system: if the patient truly has an injury and the IME doctor says he doesn't, the IME doctor can be proved wrong at trial.

      4. Are EUOs "contrived"?  Do insurance companies "hope" the claimant or doctor won't appear?  I'll start by being brutally honest: there are occasions when certain insurance carriers request EUOs in situations where they are probably not called for.  That's why the Regulations require insurers to articulate a reason for requesting them.  On occasion, courts have struck down claim denials based on EUO no-shows because the insurer could not demonstrate a reason for demanding them.  Again, that's part of the checks and balances.  Overall, however, the EUO is an important tool for verifying claims.  There are many instances in which the purported claimants have been recruited by insurance fraud rings to get into a car for purposes of a staged accident.  EUOs have uncovered many startling instances of six or seven people in a car, none of whom knew each other or the driver, and did not know where the car was heading at the time of the accident. Other times, EUOs help the insurer determine whether or not there is coverage for the claim.  As for insurers "hoping' that claimants don't show up for EUOs, it is my observation that most of the time, legitimate claimants show up for EUOs and suspicious claimants do not.  Legitimate claimants usually call (or their attorneys call) the insurance company to change the time or place of the EUO if it is inconvenient for them.  As for those who do appear for EUOs, it is my observation that their stories simply don't support a conclusion that they were actually injured.  A "friend" whose name they can't recall refers them to the clinic where they get all their treatment.  They can't recall the name of the doctor or therapist whom they have seen for 50 or more visits.  They sit for 2 hours without moving at the EUO and then say that sitting for more than 20 minutes is painful for them.  This particular plaintiff firm tells prospective clients that they will prepare the witness for his EUO appearance.  Good for them.  Showing up is more than half the battle.

      Larry Rogak


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