International Society of Primerus Law Firms

Modernize Your Practice to Maximize Damages: A 21st Century Approach to Leveraging Medical Records

By Nancy Fraser, RN

Med Legal Consulting Source

Gone to the barber recently for surgery? Had the blacksmith pound out something special for the horse? Taken a pair of shoes to a cobbler? If this all seems as antiquated as keeping a scrivener outside the office door, why not join savvy plaintiffs lawyers in the 21st Century by tapping the invaluable, cost-effective capacities of medical records companies to deal with medical records and maximize potential damage awards?

In injury litigation, the value of cases absolutely gets decided by critical information contained in medical and billing records of a patient turned litigant or claimant. But who reviews these medical records, how and at what cost? Theres a powerful argument to be made that current practices are unwise and unsustainable, particularly when compared with the modern, efficient option offered by medical records companies.

These firms, particularly the most advanced of them, can bring together experienced legal nurse consultants, experts in billing and auditing and knowledgeable life planners in sophisticated, demonstrable and beneficial ways for plaintiffs counsel. In invaluable, swift fashion, these trained professionals can help attorneys receive the highest damage settlements and awards, protect those awards from legal assault and control costs by:

  • Accessing, organizing and analyzing medical records on a client, his current status and his claims and seeing how these all square with preexisting conditions and previous injuries. Legal nurse consultants can provide invaluable professional insight into possible outcomes for unresolved medical issues.
  • Providing hard-nosed, objective information so counsel can anticipate how the opposition will counterattack a case, from start to finish, and strategizing how to gain the upper hand from the onset to force resolution at a time that capitalizes damages.
  • Tackling difficult medical billings an invaluable step in light of the current colloquy over so-called Hanif-Nishihama defenses.
  • Determining sound, defensible plans for a clients care and calculating those costs for settlement purposes.

Lets set this discussion in broad context: The winds of change are gusting through even the most august practices of the law. While litigation often increases in difficult times, most lawyers have seen business plummet as the nation undergoes one of the worst economic crashes in recent memory. The biggest firms are dismissing lawyers and cutting staff; even the billable hour, once sacrosanct for defense attorneys, sits now in clients cost-cutting bulls eye. Entrepreneur-author David Galbenski describes powerfully in his recent book how the legal business is reacting fast: Smart practitioners are scrambling to analyze what they do best and how it gets them the highest return, while unbundling services and shipping out tasks to others who can take them on more efficiently. (David Galbenski, Unbound: How Entrepreneurship Is Dramatically Transforming Legal Services Today, 2009) For plaintiffs attorneys, cost management has become a critical issue. Savvy practitioners are selecting cases carefully, figuring how best to pursue them, strategizing on how to attain the highest damages or knowing when to settle them for a clients maximum benefit and doing all this while keeping a careful eye on costs and overhead. This has meant that innovations in the practice of the law no longer are an abstract frill. Theyre a must.

But when it comes to medical records, old-fashioned ways still hold. Some lawyers, perhaps out of force of habit, wade through them by themselves. They put associates, paralegals or law clerks to work on them. Or they retain pricey physician experts, many of whom offer opinions only in their specialty area and without a wider perspective about a patients care and needs information critical to building a case. While these professionals carry impressive credentials of their own, whats unclear to the objective eye is what knowledge, skill and experience they bring to a specialized task and whats the return on the investment for their services. As author Malcolm Gladwell has pointed out, it takes a big investment of time he estimates it to be at least 10,000 hours — to acquire expertise in a given pursuit. (Malcolm Gladwell, Outliers: The Story of Success, 2008, Little, Brown and Co.) After long toil to learn and to practice the law, how many counsel, much less paralegals, associates or law clerks, have sunk enough hours in to really claim mastery of matters medical? Can they accurately scrutinize and assess injury information from medical records, especially if it exceeds what a patient has discussed? Is it efficient for them to pore over mountains of medical bills to determine if theyre fair, proper and defensible? Could they correctly estimate what kind of care a client would need for years to come and what that might cost?

In contrast, good legal nurse consultants possess impressive curriculum vitaes with extensive clinical experience and years of preparing materials for litigation. Theyre comfortable with legal process. Theyre intimately familiar with medical records; they know how and where to find information, what they contain and how theyre organized. Theyve cared for many, many patients, from injury onward through the medical process. Their expertise can be significant in cases from start to finish.

Medical record reviews and damages

For plaintiffs counsel, its crucial from the outset and throughout a case to get a full grasp of the extent and legal value of a patient-clients injury or harm. This key information, first and foremost, resides in medical records, which legal nurse consultants arguably are best positioned to handle. Although experience attorneys might still argue that they are capable of handling the review of medical records or need to do so in order to be properly prepped for their cases, there is a better way. Articulate, high level reviews of records by legal nurse consultants provide lawyers with the pertinent content of the medical records as well as a breath of insight and analysis pertaining to the plaintiff for the plaintiffs attorney to digest and utilize in what they do best, which is litigate. And from a business perspective, by embracing record review companies as strategic partners in their practice, they appropriately transfer overhead costs to case related charges.

Plaintiffs attorneys can work with medical records companies to decide the depth and breadth of the scrutiny they want their legal nurse consultants to undertake, from a brief review to a full-blown analysis. A quick scan performed by an expert of the medical records early on can give a plaintiffs attorney a crucial understanding of the potential value of a case and a way to estimate the effort needed for potential litigation or settlement. In a deeper study, legal nurse consultants can examine in detail what the records tell about a clients pre-existing injury, harm or conditions and advise, in medical terms, how these fit together. As veteran attorneys know, clients can be forgetful or they can overlook information or incidents that wise counsels need to know, whether in litigation or if the appropriate situation arises for settlement. If there are pending or unresolved issues in a clients records, legal nurse consultants also can offer insight into their potential medical disposition. For plaintiffs attorneys, all this information good, bad and ugly provided by nurse consultants can be huge in attaining the right experts and specialists, in preparing clients and experts for deposition, knowing what opposing counsel might use to unhinge their witnesses, in planning offensive strategies to undercut defenses impact on minimizing exposure and liability, in arguing motions and or ensuring certain evidence is admissible or excluded, all ultimately leading to obtaining the maximum settlement or damage awards for a client and doing so in the most time- and cost-efficient way for all concerned.

Dealing with audits of medical billings

A key component of medical records is a clients medical bills, particularly with respect to past economic damages. As plaintiffs attorneys know too well, California courts have issued a confusing set of court rulings, which have come to be known in short-hand as Hanif-Nishihama. (Hanif v. Superior Court (1988) 200 Cal.App.3d 635 and Nishihama v. Superior Court (2001) 93 Cal.App.4th 298.) These cases can give the defense a powerful way to undercut damage claims throughout litigation, even after the jury has rendered a plaintiffs verdict.

For plaintiffs counsel, the current unsettled state of the law demands a protective response: Someone needs to get in, early, to get a handle on the clients medical bills.

Medical records companies — ahead of law clerks, paralegals, associates or medical doctors — are ideally positioned to take on what can be a timely challenge. Their billing and auditing professionals, often working in tandem with legal nurse consultants, will know swiftly the many different parties that generate these documents and how to get at them. They can gather, organize and analyze what can amount to a mountain of paper, quickly, efficiently and on the most affordable basis.

They will bring to bear medical expertise to evaluate the accrued charges and offer invaluable counsel as to the basis on which providers charged; they can identify the usual and customary; they can say how it all matches with practices in a given geographical area. This audit of patient billings, done early, provides huge returns throughout litigation, especially in responding to Hanif-Nishihama motions, say attorneys who smartly have retained medical records companies to undertake the task. These reviews also really help counsel to understand the damages related to medical billing, build a case in line with its value, all while revealing vital information on a patients diagnoses and care, as well as identifying patterns and potentially missing or unaccounted bills or records that might increase damages or contain pertinent information.

Valuable life care plans

In working with the mass of paper that makes up the patient-client file, well rounded medical records companies can be a boon in yet another fashion to plaintiffs attorneys as they seek to maximum damages and sure they have done their duty in considering their clients future care needs: For settlement purposes, they can bring in highly qualified and certified personnel, including legal nurse consultants and life care planners, to sketch or provide in great detail an expert assessment of what kind of care a patient-plaintiff may need for life and how much it might cost due to injury, harm or ailing chronic condition. These studies are commonly known as cost projections or life care plans. Tapping into this planning expertise, plaintiffs attorneys also can work with medical records companies to seek from them damages estimates and cost calculations.

Life care planners prepare life-care plans by examining an array of materials and sources, including medical records, depositions, expert reports, existing literature and market data. They can conduct their own clinical interviews of patients, family and care providers. Theyll take into consideration the patients long-term need for and cost of procedures, therapies, hospitalizations, medications, testing, transportation, equipment, supplies, orthotics, prostheses, architectural renovations and home remodeling and refurbishing. While they will tap a potentially wide, deep spectrum of information sources, they will distill their findings into an authoritative report, reports or other accessible presentation.

Plaintiffs lawyers report that life care plans give them and opposing counsel a sound means for settlement negotiations with their expert, objective and needs-based analyses. The reports help counsel distinguish fast whats necessary versus whats desirable in care that must be covered in a settlement and with damages. The plans also can be highly cost-effective litigation tools because counsel can decide in advance with medical records companies as to the reports depth and breadth, which can be a swift sketch or a major, detailed study. In a best-case scenario, their superbly sourced, convincing findings can push along a settlement by persuading parties not to bring in an expensive parade of witnesses at trial.

Because life care plans trace their origin to practices connected with major rehabilitative care, many counsel have employed these expert analyses only in big, catastrophic cases or huge chronic ones where damage awards are believed likely to be great. But with the cost-efficient efforts of legal nurse consultants and life care planners combining with attorneys increased experience, familiarity and comfort with the documents, cost-projections and mini-life care plans are producing fine results with greater frequency in lesser-value cases, too. With the affordable, credible, factual plans in hand, plaintiffs attorneys say that cases they once might have resolved for $150,000, instead, settle at $275,000, and cases that might have ended with $300,000 for a client conclude with a $500,000 settlement.

Unsurprised by the counterattack

Often, of course, settlement isnt an option; a case gets beyond billing concerns. Suddenly, plaintiffs attorneys find themselves in pitched battle with defense counsel with damage awards very much at stake. Absent the easy, frequent access to the plaintiff that his counsel has, the defense attorneys, insurers and corporations in risk-management roles absolutely will launch a furious counterattack, often via medical records. And woe be to even the most experienced litigant who fails to anticipate the oppositions strategies and overestimates an affable clients credibility. Legal nurse consultants can give a major assist to plaintiffs attorneys, mapping out via medical records the flaws and strengths in a damage claim and letting them see how their clients look not in flesh-and-blood fashion but via cold ink and electrons.

As they scour the records, legal nurse consultants especially will see and determine the plaintiffs preexisting conditions or prior injuries and assess whether and how these jibe with current claims. Theyll scrutinize what tests and procedures he has undergone and what kind of care and medications hes received. The nurse consultant will piece together a picture of the claimant as patient: Was he slow to seek care? How well did he follow doctors orders? Did he miss appointments or fail to fill prescriptions or to follow treatment regimens? Did he forget about an old injury or existing condition?

Legal nurse consultants, with their deep experience with records and care, instantly will spot important materials missing in a medical file. This capacity can both buttress a plaintiffs case (was there negligent handling of him as evidenced by a missing report or diagnoses?) and prevent surprise defense attacks (in raising doubts about phantom documentation). And speaking of getting hit head on, how rattled in deposition could your client get when confronted with contradictory, unpleasant or forgotten facts extracted from his own medical records? Plaintiffs counsel could avert this from occurring with the assist of legal nurse consultants.

Working with Legal Nurse Consultants

It goes without saying that legal nurse consultants, in all their efforts, cut through both medical and legal jargon. They present their findings in clear, organized tables and compelling narratives that can provide counsel the case foundation for a winning story-line. Theyre unfazed by reams of documents, and, taking advantage of the latest technologies, they can index and organize materials so an attorney instantly can find whatevers needed, even in the heat of a courtroom argument.

As with all providers of professional services, counsel, caveat emptor: Look at the qualifications of the individuals who will do the actual work contracted for; consider the companys capacity and record in delivering whats needed, especially with the flexibility demanded in difficult, fast-moving and challenging litigation, whether the matters seem large or small. If the point of unbundling this duty is to find someone else to assume this task in a cost-effective, efficient way, is the handling of medical records, including billing audits and life care plans, the central concern of this business? Or is it just one more sidelight? And what kind of customer service will you get and who will you deal with to get it?

Finally, of course, the price for all this expert effort must come into play. It ought to be considerably less than what might be racked up via in-house time and labor expenditures, or, certainly, what might be billed by a consulting physician or combination of medical experts. A quality company that specializes in medical records review will be open to pricing discussions for its services from beginning to end. Legal nurse consultants, billing and auditing experts and life care planners expect to work closely with clients to provide candor, transparency and controls on costs of their services. This adds to the growing enthusiasm for the medical records companies theyre associated with and their place in legal services, unlike, say, the reception for Bartelby, that Melvillean character, who, when confronted by new work always would prefer not to. Of course, this isnt the 19th Century, scriveners are gone and sophisticated members of the legal community are tackling 21st Century ways, with help from legal nurse consultants and other medical professionals, to do vital work that adds up for the bottom line and contributes to maximizing damages for deserving clients.

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