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Personal Injury Mediation: The Importance of Accurate Special Damage Information: Part I: Medical Expense and Liens

December 19, 2016

In the practice of personal injury litigation, fully discovering, accurately documenting and then timely sharing with the opposition the relevant “special damages” of  an injured party for purposes of claim resolution without trial, including by mediation,  is one of the most commonly misunderstood absolute duties for claimants and their attorneys seeking redress.

Honestly, it should not be such an issue.  But, because of the inherent differences of resolution emphasis by the legal industries representing the opposing sides, it continues to remain one of the most common, if not the most troublesome, for mediators and others who seek the voluntary settlement, not trial, for personal injury dispute resolution.

In Florida, and in most jurisdictions, personal injury  “special damages” commonly include those matters that can be relatively easily gathered, tabulated, explained and objectively understood:  related medical expense and loss of income or time value caused by  the alleged relevant injury.

Accordingly, the cornerstone of any risk analysis or claim evaluation by any claimant counsel or any defendant of any personal injury claim always begins with and relies totally upon the complete and accurate collected information on “special  damages”.

I have written upon several other recommended preparations for personal injury matters mediation: i.e.,  See, “The ‘Surgical Recommendation Letter’ Issue”, April 26, 2012;   “Your All-Important Pre-Mediation Summary:  Seven Other Valuable Uses!”,  March 23, 2016.  This one may be even more important.

In this first “Special Damages” offering, Part I, we will examine the collection, organizing and timely sharing of accurate and complete medical history, medical billing and resultant medical liens.

And, we will try to explain why it is so important.

The Medical History:  The critical first step.

First, representatives of any injured claimant-plaintiff, at their very first encounter, must initiate a medical care history chart; a careful, accurate and detailed chronological medical treatment history of each new client.  And, I mean one that can be and IS easily updated with the collection of every additional piece of  related information thereafter obtained from any source literally to the day of your mediation or trial.

It is imperative to aggressively collect and chart the date, name, address and telephone number of every entity, and if possible, every individual health-care provider from whom the client sought medical care of any kind for any injury they believe is related to the their claim  Using an ongoing computer table-chart allows correction for the common errors of memory and insertions of additions and modifications as learned later directly from medical records and copies of the billings themselves thereafter obtained.

This chronology-work-sheet should then become the source of  many of your ultimate chronology centerpieces for your exhibits for mediation and even trial.

This critical administrative tool should also be used to collect as much similar information for the entire medical history of the client PRIOR to their injury for which you are retained.  And, should also include related information regarding other prior injuries or even “incidents” in which the client was involved in accidents where no claim was even made.

(Trust me, your opposition will have and use this UNRELATED information against you if you do not remove this weapon by advance full disclosure!)

Related Medical Bills Chart:  The second step.

Simply stated, many believe the single most important factor of any personal injury matter is the cost/billing for medical treatment legally related to the alleged injury.  This is the one damage “element” that all attorneys believe is most easily understood (sometimes misunderstood?) by juries who are asked to evaluate the TOTAL monetary damages of any injured claimant.

It will thus be critical to obtain COMPLETE medical bills of each healthcare provider who rendered healthcare to the injured client.  (And, please,(even  if the client elects to go to a provider with whom they are already treating, i..e, the primary care physician) get a complete bill, not one that is “redacted’ by someone else!)

If an attorney is lucky, they will have skilled staff charting much of this information.  But, beware, your assistants are not the one who will be representing the client at mediation, much less trial.  Accordingly, take the time to personally review these medical charts and billing information as closely as you KNOW the defense counsel will!

It will also be important to know exactly to whom your client is still indebted!

Using the same chronological medical history you first created, each medical bill can then be broken down by payments by the injured party, payments by each known medical insurer (first party and even third-party) and each and every governmental entity who might be contributing.  Even “adjustments”, voluntary and contractual, should be noted to be able to compare any final bill due.

Medical (and other) Liens:  the third important chart. (or, at least a dedicated column in your Billing chart.)

It is imperative claimant’s counsel constantly seek out all those who have alleged related bills; it is doubly important, however, you obtain balances of all of those who still seek any remaining payment due from any proposed settlement before an injured client receives any net funds.

Some balances are simply bills that remain unpaid.  Other balances due, some, called “liens”, have  immediate legal standing of priority of collection by operation of law (as opposed to requiring litigation.).

Such common “legal liens” include some hospitals and usually those who routinely pay for medical billing without requiring a fault-finding:  i.e., automobile medical payments, premises medical payments, health insurers, worker’s compensation insurers, and governmental payments such as Veteran’s Care, Medicaid and Medicare.

But beware of professional lien collection entities who send “lien” billing to you upon your request for any known liens.  Most such collection agencies  (including governmental) are simply conduits from the entity claiming the lien and frankly do not review the actual billing for much accuracy!  It is all too common to find included charges pre-dating and even totally causally unrelated billing within the claimed lien.

And, also remember, many governmental entities do not permit “balance billing”.  In simple language, if their benefits are used in payment of a bill, no balance is permitted to be passed on to the patient!  (note: this is a matter of expertise and specifics, but i.e., Medicare and Worker’s Compensation are ones that commonly, if accepted for any payment, will not permit ANY balance billing.)

Now you have the information.  Why did you bother?

There are major differences in how claimant’s counsel and  defense counsel process and use this seemingly same information in their resolution-evaluation process. Knowing some of these distinct differences may mean the difference between your success and failure at your next personal injury mediation.

For example, many claimant’s counsel generally believe the higher the total bills, the greater their opportunity for a larger total dollar recovery for all other damages, including for so-called “intangible” damages.  Many defense professionals will agree; but only to truly related billing.

But all will scrutinize (even fly speck) every bill for every administrative mistake you make.  And, worse, use it against your client to defeat every element of their claim.

Further, common fact questions for every defense counsel will always include proof of the direct relationship of the billing to the alleged negligent injury and the reasonableness of every billing charge compared  to the average in the community.

Thus the accuracy of each of these sub-elements is critical to credibility for acceptance, not only to future juries, but to the opposition being asked for voluntary compensation by settlement.

Although greater injuries, of course, normally receive greater medical billings, if any individual bill’s relationship or amount is subject to question, particularly if of questionable objective reasonableness, such questions can cause the defense to encourage a jury to reject the entire injury rather than only the bill!

And, proven unrelated care is usually considered “fraud” by the defense.  Juries, at best, will question such presentations.

All of these points simply emphasize careful preparation.  If your opposition has better knowledge and more accurate information than you do, you will lose not only credibility at mediation (and all negotiation), you likely will be unable to reach resolution because each side will be using different facts for their separate evaluations.  It is THAT important.

( Article Cross-check:  If you do not believe all of this data collection and charting effort is important, remember this article the next time at mediation your opposing attorney publicly points out any one of your billing or lien errors: i.e., billing pre-dating your client’s injury or charges totally unrelated to any relevant injury, or duplicate charges or illegal balance billings or any billing extremely out of the community average.  Trust me, it will be embarrassing to you, upsetting to your client and an unnecessary edge to your opponent!)

It is of course, impossible in this restricted article to “teach” every part and parcel of the importance of this critical part of any claimant’s negotiation preparation and for use at mediation.  Hopefully, however, you see the point:  it is critical for any chance of success at mediation to discover, document and then timely, fully and accurately share this medical billing/lien special damage information well-prior to mediation for your best opportunity of success.

You will need it for your client.  You will need it for your trial.  You MUST have it and timely share it for success in mediation.

I know it works.  I see the success (and failures) every day.  Give these ideas a try to up your own success ratio next year!

Merry Christmas 2016.  Happy New Year 2017.

Dan, from Winter Park-Orlando, Florida.

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