Posted on: 10/23/2012
Robert S. Ambramson, Kopka Pinkus Dolin
View Latest Articles
Only two entities were put on notice that "Joe," a Progressive insured, was involved in a Michigan auto accident: the police department, and Progressive. Yet within days, Fox 2 News in Detroit reported that three attorney medical injury help lines solicited him over the phone, and an investigator hired by another plaintiff's firm showed up at the insured's door with a copy of his police report, advised him of his Michigan no-fault rights, and had already set up a doctor's appointment on his behalf.
Welcome to the world of plaintiff attorney-directed medical care. This is an epidemic that has spread rapidly not only in Michigan, but across the country.
The job of a lawyer is to counsel a plaintiff about their legal rights following an auto accident. It is not their role to quarterback their medical care. That should be left to the client's primary care physician, who would be in the best position to refer to the right doctors.
Still, the unfortunate reality remains that numerous plaintiff firms have clear-cut arrangements with a chain of doctors that they utilize time and time again. Each side is clearly profiting from the business relationship. It is hard to envision how the plaintiff lawyer has their client's best interest at heart when they are simultaneously carrying a vested financial stake with their hand-picked stack of doctors.
In Wisconsin, an ethics question was posed: Can an attorney practicing personal injury law suggest various health care providers or other sources of medical care if the injured party does not have a treating physician? According to the opinion, E-92-4, the lawyer should explain how a referral by the lawyer could affect the representation and, for example, explain:
- That the lawyer's involvement in a referral might be used to impeach the testimony of the healthcare provider in question, particularly if there is a pattern of such referrals to the provider; and
- Any financial interest that the lawyer may have in the health-care provider's business and any other association that the lawyer may have with the health-care provider that could materially limit the client's representation.
In Florida, the state's bar committee requires that referral hotlines refer injured auto accident victims to at least four medical clinics for treatment. However, new legislation is being introduced that would require disclosure showing the financial stake that medical entities and attorneys have in referral hotlines.
While defense lawyers and insurance companies are cognizant that certain plaintiff firms are directing their client's care, how does that message get conveyed to a jury? Here are some ways in which jurors may be able to read between the lines:
- Delve into the plaintiff's relationship with their primary care physician prior to the accident. Point out that they had been seeing their physician for 20 years, yet strangely, never returned to see that doctor after the accident.
- Ask the plaintiff if they had ever heard of the doctor that their lawyer directed them to, or knew where their office was prior to the auto accident occurring. Then ask them how they knew to go there, and who arranged their transportation. Usually, the next answer is: My lawyer.
- Collect the witness lists that you have with particular firms, and store the ones where they continually use the same doctors as treaters. Then use these to cross-examine the doctor, and demonstrate the pattern between the physician and the law firm.
- Request the treating physician disclose what plaintiff firms he/she sends gift baskets to at the end of the year.
By painting a picture of collusion between the plaintiff firm and their doctors, this could imply to a jury that the treating physician's opinions may not be trusted. What is far more concerning is that the attorney-selected treaters could be overreading MRIs (which is why defense lawyers should employ their own neuroradiologist), or performing unnecessary surgical procedures which ultimately put their clients in a worse, rather than better, state of health.
In an earth-shattering complaint filed in Michigan in March 2012, one plaintiff's lawyer sued another Plaintiff's law firm, individual lawyers, as well as their entire chain of doctors, who acted in concert by "orchestrating, fabricating, generating, recommending and engaging in unnecessary and unwarranted medical care and treatment and/or legal services all for financial gain, at the expense, injury and eventual resulting death [of the Plaintiff]." To support the claim, the plaintiff's lawyer indicated that all of the Plaintiff's testing was normal, there were no objective findings, and quoted the conclusions of the defense IME doctor.
Now there's a first.
Robert Abramson is an associate in the law firm of Kopka, Pinkus, Dolin & Eads in Farmington Hills, MI. He specializes in first-party, third-party and uninsured motorist claims in Michigan. Mr. Abramson is a member of DRI's Young Lawyers and Insurance Law Committees.