'What are the Meds?': How Medicals Impact Case Settlements & Jury Arguments
(May 24, 2019) - “What are the meds?” This is a common question when valuing a personal injury case. The question is critically important because plaintiffs are unlikely to settle their cases before getting their medical bills paid. Further, in order to cultivate large awards, plaintiffs employ a variety of methods to artificially inflate the value of the medical care.
Some of these tactics are done with the specific intent to hide the real value of the medical care received from insurance carriers, defense counsel, judges and, most importantly, juries. Unfortunately, many on the defense bar have experienced a marked increase in cozy relationships between providers and plaintiffs’ law offices, letters of protection, unnecessary medical loans, and sale of bills to medical funding companies. As a result, defendants are often left wondering how to combat these clearly inflated bills.
Letters of Protection
Letters of protection (LOPs) are agreements wherein a provider agrees to treat the patient in exchange for a lien on the lawsuit or settlement. At first blush, an LOP seems a reasonable answer to the issue of how a patient affords necessary medical care. However, in reality, plaintiff-friendly providers often inflate bills far beyond the amount typically paid for similar care.
Plaintiffs’ attorneys are incentivized to send clients to providers that will participate in these agreements because they will provide inflated medical bills to present to a jury. Perhaps due to the inflated medical bills, providers may also be incentivized to recommend care which might not be necessary. Therefore, the reality of this seemingly benign method of bill payment can cause a general inflation of medical costs and leave plaintiffs in a situation far worse than where they started.
Medical Funding Companies
To compound the issue further, a plaintiff or a provider may utilize a medical funding company (MFC). An MFC may buy out multiple LOPs from different patients with the same provider for a fraction of the lien amount. An MFC may also offer to fund a plaintiff’s care while betting on the success of their lawsuit.
What can the defense do?
Gathering all of the billing and lien evidence is critical to a good defense. Even though initial subpoena requests always include all financial and medical billing information, it is rare that the provider or plaintiff’s attorney will send LOPs without these documents being specifically requested. Therefore, we recommend sending separate subpoenas detailing a request for this specific documentation.
Once a detailed subpoena request is sent, push back should be anticipated from both the plaintiff’s attorney and the provider. However, this information is in fact discoverable and a motion to compel should be filed if the subpoenaed party refuses to comply. Gulfcoast Surgery Ctr., Inc. v. Fisher, 107 So. 3d 493 (Fla. 2nd DCA 2013). The Florida Supreme Court has held that the customary charges or contracted amounts accepted for certain services are discoverable in order to determine the reasonableness of the medical provider’s charges at issue. Allstate Ins. Co. v. Holy Cross Hops., Inc., 961 So.2d 328 (Fla. 2007). Additionally, at least one trial court has treated the sale of a medical bill as admissible in front of a jury. Jurado v. Hirzel, Case No. 12-48998CA22 (please note this is a trial case and therefore only informative and not binding on any circuit court).
Failure to strongly pursue and combat inflated medical bills will often result in increased verdicts and settlements. Given the current environment, to ensure that a defendant only pays what is reasonably owed, the defense bar must engage in aggressive discovery and defense motion practice to be certain they have the most accurate medical expense information.
Elizabeth Kirkhart, Associate
Joelle Nelson, Partner