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Personal Injury Mediation: Healthcare Billings Are Forcing Unnecessary Trials

June 28, 2017

Our modern healthcare community and its rising billings are increasingly contributing to the over-crowded civil dockets of our courts.  (And, killing mediation!)

In personal injury mediation, the injured person’s related and reasonable medical care and billing is the single most important component for a prognosis of an early, fair settlement resolution, particularly at mediation, without the necessity of trial.    See, “Personal Injury Mediation:  The Importance of Accurate Special Damage Information:  Part I, Medical Expenses and Liens”,  December 19, 2016

Ask experienced attorneys on either side of a personal injury matter or the insurance industry and all will acknowledge that the single greatest change in the last fifty years in litigation involving injured humans is the over-accelerated cost of medical treatment (and medical experts).  Attorney’s fees during that time have not changed at all for claimants and have even dropped for defendants and insurance carriers due to pure marketplace competition.  Litigation costs have risen slightly with inflation and more sophisticated usage, but remain well below the time-rise in say, food.  But healthcare has skyrocketed, medical-legal experts are getting wealthy and there appears no ceiling in sight; at least for the United States.

Further, increasingly, medical treatment that is believed by any defendant as unnecessary or excessive or, worse, medical charges that are believed, if not known, to be clearly excessive for the value of the valid medical service rendered can doom the resolution process; even in matters in which there is little issue over a defendant’s responsibility or even the existence of some personal injury of the claimant.

Increasingly, defendant’s insurers, who are always the only real decision-maker in personal injury matters, if they are unwilling to accept a particular medical treatment or bill because it is believed by them to be unnecessary or excessive in cost, are simply choosing trial as their final arbiter of  what is the proper personal injury care and cost.

The obscenely rising cost of valid medical treatment, without regard to our legal system, is already a major problem for the entire insurance industry (see the present, apparently “uncontrollable”, national Healthcare cost debates!). Couple this, however, with the legal system’s alleged compounding impact and the frustration of the insurance industry and it quickly ends with too many unnecessary trials in both Federal and State courts.

Sadly, there seems little that the actual parties, plaintiff or defendant, can do about it.  See, “Personal Injury, Letters of Protection and Mediation”, February 21, 2013.

It is the rare injured party that has the choice, much less any control, over their medical providers, their related medical treatment, or the medical bills charged to them.   A large percentage of injured persons have no regular medical home.  Many are transported immediately to simply the nearest emergency treatment facility who, in turn, simply assign physicians to the patient; even more out-patient care physicians are recommended by the initial treatment facility. Many physicians who are elected are dictated solely by insurance coverage; many are sought simply for more convenient access and availability; some simply because of a family recommendation.

And, most before they even consult an attorney.

But, even if a few attorneys  do “steer’ their clients to medical providers for reasons they believe in the client’s best interests, because too many hospitals openly overcharge paying patients to adjust for non-payors and/or some medical providers (or some groups of them) knowingly charge excessively for a service or refuse to take lesser insurance allocations for their services in “exchange” for the “headaches” of treating persons involved in the legal system, again, the injured party, nor the defendant, nor their representatives, have no realistic control, whatsoever, in these healthcare billing matters.

And, neither does any third-party personal injury-insurer!  Thus the frustration.

“Unnecessary” and “excessive” will always be in the “eye of the beholder”.  Unfortunately for most injured parties, however, the “beholder” AT MEDIATION is usually these same “frustrated” insurance professionals and their attorneys.

And, lately, this allocation of their unilateral perception of healthcare “fraud” is not going well for many claimants.

Too many personal injury mediations are failing resolution simply because of the “math of mediation”.  And, the math is failing simply because many Defendant(s) cannot or will not justify an offer of sufficient monies to allow the Claimant to “net” any personal compensation for their unwanted injury due solely to allegedly excessive medical expense; and too often may not even offer enough to pay medical bills and liens incurred allegedly due solely to the unwanted incident (much less, attorneys fees and costs!).

The resultant trial is thus foreseeable.  It is the rare claimant’s attorney who can resolve any injury case where the bills and liens proffered by the treating healthcare providers cannot be paid.  The only choice remaining to such an injured party is to try the case.

This mediation-math-crisis may be a mindless backlash by the insurance industry at excessive medical costs; it may be (frankly, many times it is!) justified in any specific case. Unfortunately, it is ending too many negotiations with almost always totally needless trials.

No injured party asks to be an injured party.  And, sadly, today, despite many alternatives and choices, the majority of those injured parties simply have no means to pay for health care!  (Like savings, healthcare seems to be one of the last choices most make when parceling out their “disposable income”.  And most young people do not even consider it)

Automobile drivers, however, will purchase liability coverage (many states require it!).  Property owners are often contractually obligated to purchase liability coverage.  And, third-party liability insurance clearly remains a highly profitable enterprise or there would not be so many alternatives to purchase!

Thus, all of the rational participants in every personal injury matter need to rethink,  and early, how they must approach any personal injury matter and its resultant medical bills, to increase all opportunities for success in resolution without trial.

It must begin with injured parties and their representatives, where possible, making wise selection of healthcare providers and carefully monitoring unnecessary medical treatment or excessive expense.   Claimants must treat only as actually required for a return to health.  Claimant’s attorneys must confine their legal direction of their clients to emphasize proper medical treatment over merely large bills.

Ironically, most healthcare providers also try to avoid the court system like the plague; it is both foreign to them and to most not economically worthwhile.  (Except to many “medical-legal experts” who generally make more money as experts than as practitioners!)

It is thus time that hospitals, physicians and all allied healthcare services recognize their own obligation in this process.  Healthcare providers  who accept treatment responsibility for injured persons, must perform it reasonably in keeping with known community standards and resist any temptation of gaming the system for any collateral purpose.

But, insurers must also accept how little control any injured party or their representative have for the choice of most of their caregivers, or the amount of any medical bill charged to them by those providers.  They could help by selling more medical pay benefits and more timely payment of medical bill assistance, even partial advance payments, to allow better healthcare choices to an injured party.

And, insurers must stop blindly choosing, on a volume basis,  to pay attorneys and medical-legal experts to delay fair resolution rather than timely resolving those matters they know they could and should.

In the end, it will require the entire body all of the participants in the personal injury field, working together, not at odds with each other, to first avoid,  then aggressively control excesses of treatment and billing.

If everyone does not contribute, and soon, our courtrooms will be the foreseeable end destination of too many more otherwise resolvable matters.  If so, everyone, except those who game the system, will continue to be the losers.

Dan, from Yeehaw Junction/Lake Wales, Florida.


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