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Personal Injury Mediation: The “Surgical Recommendation Letter” Issue

April 26, 2012

In mediation, it is fundamental to successful resolution that both sides first be able to accept the same fact picture and then separately evaluate it.  Differing evaluations can usually be mediated.  Disputed acceptance of fact, often cannot.

Accordingly, it is foreseeable that in mediation any claim for possible future damages will always be subject to much more controversy between opposing sides than proven past ones.  And, some future claims will be more problematic than others.

A recurring and conflicting issue for opposing parties in Florida personal injury mediation is  acceptance and/or evaluation of a damage claim from an injured party with a “future surgical recommendation letter” when, at the time of mediation, the recommended procedure has yet to be elected, much less, scheduled.

As with any other issue in mediation, I believe it is first important for each side to try to understand the perspective of the other on that issue.  With this understanding, each side can then seek to find better common ground on that disputed issue.

The common plaintiff’s mediation perspective is that once a physician writes a letter of recommendation of any future care that it is just a matter of time until the plaintiff will elect to have the recommended care, including surgery.  Thus he/she is entitled to have that future treatment accepted by the defendant and included in their total damage evaluation.

The Plaintiff believes the values of future care must be paid so that, if needed, it will be available and payable.

The most common defendant’s mediation perspective is that if the plaintiff  really needed any treatment, it would already have been performed.   Any alleged need for future care, to any defendant, is considered speculative, and thus highly debatable.  And the further in the future the projected care, and the more electable the procedure, the more speculative for any defendant to place any real merit, much less value, upon it.

The Defendant believes future medical expense should be paid only if proof is presently available that the future care will actually be undertaken! 

This difference in perspective results in the forseeable inherent battle (“Bad Faith” is a word that also crops up a lot ) of the realistic mediation worth of any “letter recommendation” for future care, particularly surgery.   And, particularly, when there are collateral questions to the recommendation, such as to the qualification of the physician or the objective basis of the recommendations.

But common ground for these issues can still be found in mediation with advance knowledge of these foreseeable differences in perspective by the opposing parties.

To find common ground, here are a few basics that both sides should consider.

If mediation fails, and trial is the next stop,what will your jury consider in deciding for you whether or not to award such future damage? 

One irrefutable source is the Florida Standard Jury Instructions (presumptively the jury will follow them).

In most personal injury cases, the most common instruction given to the jury regarding future medical expense is:  “The reasonable value or expense of …medical…care and treatment necessarily or reasonably obtained by the claimant…or to be so obtained in the future.”  (501.2(b)  FSJI)

And, in regard with automobile cases (presently), with “proof ” (presumptively qualified medical testimony) of future medical expenses, the only modifier to the language given the jury is, “reasonably certain to (be incurred) in the future”.  (501.4, Note 2,  FSJI)  (Note:  Even in automobile cases, “permanency” is not required for a jury’s award of future medical expenses.)

Accordingly, despite the continued evolution of the confusing “magic words” often used/required for testimony to establish proper “proof” of  future medical expense, ultimately, a jury need only be convinced, in most cases, that the debated future medical care  is necessarily or reasonably,to be obtained in the future“.

A careful examination of that wording, however, still leaves both sides with potentially a clearly different perspective of  the required proof  of any future medical expense . 

Plaintiffs, will want and need to emphasize to any jury the reasonableness of the future treatment.  And that it is not only reasonable, but eventually, using only common sense, will be necessary  for relief of a presently known condition.  And, of course, eventually it will be “obtained”. 

Defendants, will emphasize the remainder of the alleged “requirement”:  Will it (really) be  “obtained” (used/expended) in the future?   Can it be considered reasonable if it is not to be used?

Both sides, however, to have any chance at mediation resolution, must at least have a full understanding of the basis these opposing positions.

Having the burden of proof at trial and thus at mediation, it thus behooves the Plaintiff’s counsel to take every possible step, and well prior to mediation, to lay the “trial-like” predicate for any future medical care with the decision makers of your opposition.  That is, show proof that it is at least “more likely than not” the future treatment will become necessary and if possible, it is “certain” to be needed, even if not elected.

This then brings up the problem with a “letter” (usually begrudgingly written by a physicianwithout legal guidance as to necessary legal content ), alone, recommending any future medical care, being offered for support of  this future damage claim.  And, the comparative weight that should be given them.

Increasingly,  for many of the reasons discussed herein, many defendants  are  simply unwilling to consider such recommended treatment not at least already elected.  And, preferably scheduled.  But, in some cases, not until after the treatment is actually undergone.   

However, reasonable defendants are going to have to consider reasonable future treatment that even common sense suggests is reasonable and likely to be obtained in the future.  And this is particularly true when the value of a claim already approaches policy limits and will likely clearly exceed them if treatment is elected.

The source of that common sense?  The same as in trial.  Objective evidence of injury related to the claim;  medical records, medical tests, medical observations, radiographic studies.  And, if possible, either legal-directed letters, or even affidavits, in similar form to testimony-predicates at trial, from qualified medical experts as to the “reasonable and necessary and even certain (probable?) needs of a claimant.

But, even then, there will always remain the issue of “election”.  Will the plaintiff, really elect to have the procedure?  On the other hand, is this really a good defense posture with any future jury?

Obviously, only the injured party can elect to undergo the risk of any treatment.  But, all treatment has risks.  And, surgery, as can be seen from the usual “informed consent” required of any patient PRIOR to surgery, is always hazardous. 

A jury will know that.  And, may or may not withhold compensation for future treatment shown necessary but still not elected at trial.  After all, any juror can visualize that choice and the continuing possible future need.

There is probably no solution easily suggested to this repeated quandary.   Among other issues is the obvious additional monetary cost necessary to obtain “more than a letter”.  What needs to be suggested, to both sides, however, is that this issue is not going away.

And, it is always going to be even a greater problem if an injured person has no insurance or any present ability to pay for a recommended surgery.  In case you haven’t noticed, most hospitals and surgeons won’t perform without pay, and in advance.

And patients forced to obtain care through borrowing or even “letters of protection” may, in the future, under certain circumstances, be allowed to explain those circumstances.

The unspoken headache for the insurance carrier is that to totally ignore a bona-fide surgical recommendation and not make SOME allowance for it is raises a real risk of drastically undervaluing a claim at a point at which less money paid could resolve the claim than required later.  And, particularly if the “later” is after surgery has been performed. 

 And, very particularly if there is already a policy limit issue BEFORE the surgery and now, with the cost of surgery, the obvious value of the claim is well in excess of the limit not previously and timely tendered.

The unspoken headache for the Plaintiff is that many injured persons are genuinely afraid of surgery and, understandably will want to delay elective surgery (and particularly if  the only reason for electing now versus later is only for increasing a present claim value.) 

But the double headache is that most attorneys would prefer that, if surgery is to be undertaken, it should be undertaken BEFORE settlement “just in case”. 

Under Florida law, should some mis-hap occur, not only is a negligent medical provider potentially responsible for any negligence, the original tortfeasor is TOTALLY responsible for a “bad outcome”, even if there is NO negligence.  (And, by the way, a settlement before the surgery, in such a circumstance, may well expose the settling plaintiff’s attorney to criticism,  if not a lawsuit,  for an alleged premature settlement!

The answer?  Once again, plan ahead. 

If  you’re the plaintiff and the major medical care you wish to have considered  is truly a likely future procedure that will only require election, when finally needed, obtain written documentation of exactly the type you would require if presented at trial.  Confer with your prescribing physician the documentary basis of that prognosis and share that objective documentation with your opponent.

If you are not prepared to do so, simply expect either an outright rejection of this portionof your claim, or, at the very least, a substantial discount.

If you are the defendant, at least carefully consider the collateral evidence available in support of any purported future care, using a common sense standard.   Your jury will, if you don’t.  And the outcome may become very, very painful.

There is no issue in mediation that cannot be overcome with advance preparation.  If you are one of those planning upon using or discounting a “surgical recommendation letter” in your mediation, at least be forewarned.  Paraphrasing the actress, Betty Davis,  “Fasten your seatbelt.  It is going to be a bumpy (mediation)”.

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