The Value Of A Personal Injury Case Is Driven In Large Part By Economic Damages.
Economic damages in personal injury matters refer to medical bills incurred from medical treatment (for example, doctor’s visits, physical therapy, chiropractic treatment, surgery) and/or the cost of future medical treatments which a client would need within a reasonable degree of medical probability as a result of their injuries. The law for the jury to determine the cost of past medical treatment is based on the reasonable cost of reasonably necessary medical care that he/she has received. See California Civil Jury Instructions “CACI” 3903A. There are also past and future losses of earnings and loss of earning capacity claims. However, in nearly all personal injury cases, a client’s medical bills also known as special damages, are often the primary factor driving the value of personal injury claims.
As the court noted in Pebley v. Santa Clara Organics, LLC “There are many reasons why an injured plaintiff may elect to treat outside his or her insurance plan. Plaintiffs generally make their health insurance choices before they are injured. These choices may be based on the plaintiffs’ willingness to bear the risk posed by a health maintenance organization (HMO) rationing system because the plaintiff is healthy and requires little care. This decision may appear much different after a serious accident when the plaintiff suddenly needs complex, extensive care that an HMO is not structured to provide. The plaintiff also may wish to choose a physician or surgeon who specializes in treating the specific type of injury involved, but who does not accept the plaintiff’s insurance or any other type of insurance. In addition, health care providers that bill through insurance, rather than on a lien basis, may be less willing to participate in the litigation process”.
Lien-Based Medical Providers Can Bill At The “Usual And Customary Rate”
This rate is almost always higher than negotiated fees paid by health insurance.
Often personal injury clients are uninsured or have HMOs or government-subsided health plans like Medi-Cal or medicare. The reality is that receiving medical treatment through an HMO or public health insurance program can take weeks or months preventing our clients from seeing the necessary specialist or receiving the proper physical therapy treatment. Often health insurance companies delay or deny claims for necessary medical treatment to further line their own pockets and put profits over the patients’ health. This can aggravate a personal injury client’s injuries, prolong their pain and potentially lower the value of the case by having a delay and gap in medical treatment.
Personal injury victims should have the right to choose their doctor and have the best medical care and you don’t always have that option when treating with one’s health insurance. There are other circumstances where clients treat through their health insurance but when it comes to surgery or more evasive medical treatment recommendations, they may want a second opinion.
There are other distinct litigation advantages of lien-based medical treatment. As lawyers, we want a medical provider who writes a proper medical examination report which might be needed for the doctor to testify at trial and/or deposition.
Lien-based doctors are aware of their obligations to be available for testimony at deposition or trial. Does anyone try to get a doctor at Kaiser for example to submit to a meaningful deposition or appear at trial? I’d rather have a root canal with no anesthesia. Any of us who have gone through that painful experience appreciate doctors who are aware of the medical-legal aspect of their medical treatment. Doctors who treat on lien are almost always aware of the impact their medical records, medical reports and bills have on the case as opposed to doctors clients see through their health insurance.
Lien-based medical treatment can ensure that personal injury clients receive the full scope of medical services available through referrals to specialists such as orthopedic doctors, and physical and chiropractic therapy. Some companies provide comprehensive multi-specialty healthcare at a variety of locations ensuring that clients get referred to the right specialists and that all injuries are properly documented and treated. These multi-specialty companies can help medically manage the case to maximize the value of personal injury claims.
Treatments through health insurance also have subrogation rights where liens are asserted, requiring patients to pay back medical treatment received when there is a third-party personal injury claim. These subrogation companies have been increasingly difficult to negotiate with as opposed to a private doctor treating on a lien.
Lien-based Medical Treatment Also Can Be More Convenient For Clients.
There are networks of doctors who treat on a lien which ensure that a medical provider can be located close to where our clients live. The convenience factor ensures that our clients are continuously treated with the proper doctor to avoid delays or gaps in treatment.
There are also financial reasons why clients may prefer to treat on a lien. Insurance companies often have high deductibles or co-pays that clients cannot afford to pay when they are injured. Clients prefer can treat by a doctor without any out-of-pocket costs through a lien.
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