Medical Evidence Procurement – What Your Lawyer Should Be Doing

Medical Evidence Procurement - What Your Lawyer Should Be Doing

By: Attorney Ken Harrell

Kenny Harrell is the managing partner of the Joye Law Firm. The Joye Law Firm has focused on handling South Carolina personal injury and workers’ compensation cases for over 50 years and has offices in Charleston, Columbia, Myrtle Beach and Clinton. Harrell has been recognized several times by Super Lawyers and by Best Lawyers as one of South Carolina’s top lawyers, both in the areas of workers’ compensation claimants’ and personal injury plaintiffs’ cases. Harrell formerly served as the president of the South Carolina Injured Workers’ Advocates organization and he has served as the co-chairman of this group’s legislative affairs committee for nearly 15 years.

In over 30 years of practicing law, one of the biggest lessons I have learned is that personal injury and workers’ compensation lawyers have just as big of an obligation to offer input on medical treatment options as they do on legal issues. For the most complex injury cases, effectively guiding clients to the right kind of doctor who can help them may be the lawyer’s most important task. So why are so many lawyers afraid to do this? I have had some lawyers (although typically insurance defense lawyers) imply that it is unethical for a lawyer to help direct his client’s treatment. Other lawyers don’t do it out of sheer laziness – they put the case on autopilot when it comes to the client’s treatment and what they are left with at the end of the treatment is what they use to resolve the case.

Trial Lawyers Advising on Injuries

Outside of persons directly employed in the medical profession, there are few lines of work where someone will pick up more medical knowledge than being a trial lawyer. A large portion of our work time is spent talking with clients about their injuries and ongoing symptoms, reviewing medical records, talking with doctors (many times to be educated about the client’s condition and best treatment options), deposing doctors, and reviewing medical literature (especially when the injury is an unusual one). Terms such as “herniated disc”, “bulging disc”, “annular tear”, “nucleus pulpolsus”, “epidural steroid injection” and “radiofrequency ablation” become part of the trial lawyer’s vocabulary fairly quickly.

Whenever I encounter a young lawyer at the Joye Law Firm who pushes back on properly managing a client’s access to medical treatment, my initial response to them is that they need to know the ethics rules that govern lawyers. Under Rule 2.1 of the Model Rules of Professional Conduct, a lawyer is to act as his client’s “advisor” and in rendering advice “…may refer not only to law but to other considerations…” If a client is experiencing cognitive issues after sustaining a blow to the head, an experienced trial lawyer has an ethical obligation to use his knowledge about traumatic brain injuries to ensure that the client sees the right kind of doctors for appropriate diagnosis and treatment. The same thing is true of many types of injuries – psychiatric injuries, scarring/disfigurement, or any injury that has left the client with significant future treatment needs. If a lawyer fails to use his knowledge to properly develop a client’s case to ensure that the client is fully compensated for his injuries, sub-standard service has been provided and the client will not get a second bite at the apple.

Comment 4 to Rule 2.1 notes that in many cases, “matters that go beyond strictly legal questions may also be in the domain of another profession.” The comment goes on to state, “Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation.” The emphasis is mine as I think it’s important to stress that the ethical rules acknowledge that directing a client to the right expert (including doctors) is something that even a competent lawyer would do (and I like to think that my lawyers at the Joye Law Firm are far beyond “competent”).

Fighting Back Against The Insurance Company’s Doctor’s Tactics

Here’s a little-known secret (as to the general public) as to how insurance companies defend personal injury cases. Insurance carriers have a stable of hired gun experts at their beck and call. If you suffer a serious neck or back injury in a car accident and there is a significant amount of insurance coverage, expect to see the insurance company trot out some “expert” (usually an old doctor who hasn’t touched a scalpel in over a decade) who will testify that all of your problems were degenerative in nature and your need for surgery had nothing to do with the car wreck.

For South Carolina workers’ compensation cases, it can be an even bigger issue as our law gives the workers’ compensation insurance company complete control over which doctors are authorized to treat you. Don’t get me wrong – there are some excellent South Carolina doctors who treat injured workers. However, there are also some doctors used regularly by the workers’ compensation industry because it is known that they will downplay your future treatment needs and they will assign you the most conservative impairment rating possible. So how do you know when such a tactic is being used and how do your lawyers fight back against these tactics?

How to Get The Correct Medical Treatment During a Workers’ Compensation Claim

  1. Talk with your treating doctors – in serious injury cases with ample insurance coverage, your lawyer should be talking with your treating doctors to make sure he or she has a complete picture about the effect of your injuries on your future activities (including gainful employment) and what your future treatment needs will be. Future treatment costs are often the biggest component of damages in a personal injury case. In appropriate cases, your lawyer should consider hiring a nurse consultant or a life care planner to provide expert opinions on what the future treatment costs related to your accident injuries will be.
  2. Independent medical examinations – we frequently use these exams (referred to as IME’s) in workers’ compensation cases when the treating doctor’s impairment rating seems overly conservative. In those instances, why would we simply rely on the opinion of the insurance company’s doctor instead of giving our client the peace of mind of having an independent assessment by a doctor who is not paid by the insurance company? IME’s can be equally important in a personal injury case when we feel a component of our client’s injuries are not being properly addressed by the treating doctors (a good example of this is someone with symptoms indicative of a traumatic brain injury).
  3. Letters of protection – many of our personal injury clients have no health insurance or are under-insured (meaning that the cost of their deductible or co-pay obligations would effectively prevent them from using health insurance to receive full treatment). In these instances, we often refer our clients to an appropriate doctor using a letter of protection (typically, we give our clients the option of choosing a provider in the specific medical field we recommend for them). A letter of protection simply assures the doctor that at such time as the case is settled, our law firm will contact the doctor’s office to insure that the doctor receives appropriate payment out of the settlement proceeds before the money is distributed to our client and to our law firm. One of the reasons to consider hiring a well-established and well-known South Carolina personal injury law firm like the Joye Law Firm is that over the past 50 years, we have been able to develop relationships of trust with outstanding doctors in many practice areas. Neurosurgery, orthopedic surgery, pain management, neurology, neuro-psychology, psychiatry, urology, plastic surgery and burn treatment are just a few of the medical areas where our law firm has relationships with doctors that allow us to set up IME’s or arrange for a letter of protection treatment for our clients.

As I mentioned above, if you’ve been seriously injured, you only get one bite at the apple when it comes to settling (or trying) your case. Therefore, it’s important that you choose your doctors and your lawyer properly. If you choose the right lawyer, he should be able to give you good advice on how to insure that you get the treatment best suited for your injuries.