Reasonable and Necessary Treatment In a Personal Injury Insurance Claim: Palliative vs. Curative

By Richard H. Adler, Attorney at Law

Washington law has long established that third-party tortfeasors are liable for all reasonable and necessary medical care and treatment proximately caused by their negligent conduct in causing injury. Palmer vs. Jensen, 132 Wn.2d 193 (1997); Washington Pattern Jury Instruction 30.07.01. Most automobile insurance policies have adopted that language in their Personal Injury Protection (PIP) coverage, stating they will pay all “reasonable and necessary” medical expenses which result from an automobile collision. As a general rule, however, PIP polices do not define the term “reasonable and necessary” treatment.

It is also common for PIP insurers to retain doctors for insurance medical or insurance chiropractic examinations (IME, ICE), or paper reviews designed to deny payment for medical care, chiropractic care, physical therapy, acupuncture, and/or massage care on the basis that the treatment was only “palliative and not curative. Under Washington State law however, where there is no language in the auto policy defining “reasonable and necessary” care to mean “curative,” the insurance company denial of benefits on these grounds cannot be supported by either the language in the PIP contract or law.

What is palliative treatment and why is such treatment deemed not “reasonable and necessary?” Mosby’s Medical Dictionary defines palliative treatment as “therapy designed to relieve or reduce the intensity of uncomfortable symptoms but not to produce a cure.” Examples given of palliative care involve the use of narcotics to relief pain in a patient with advanced cancer. Borland’s Medical Dictionary states that palliative care as “affording relief but not cure, an alleviating medicine.” Webster’s Dictionary states that palliative treatment is “serving or tending to make less intense or severe, i.e., to mitigate, as in to try to palliate our misery.”

Why is treatment that is designed to relieve or reduce symptoms from personal injuries medically unreasonable or unnecessary? More importantly, where does it say that in the PIP insurance policy? How can care be medically unnecessary when the treatment produces even temporary pain relief which allows the injured person to continue working and managing their affairs?

Experienced personal injury attorneys should respond to such a determination by the insurance company by asserting that if there is nothing in the language of the PIP policy defining “reasonable and necessary” care as “palliative vs. curative”, denial of treatment because it is deemed “palliative” constitutes a breach of the PIP insurance policy. The next logical step in the argument is that such a breach of the PIP insurance policy by the insurer can constitute a breach of their duty of good faith to their insured. As such it could provide the basis for an assertion of a claim directly against the insurance company for bad faith.

Unfortunately, the healthcare provider does not have “standing” to contest this legal issue with the PIP insurance company when the IME examiner labels their treatment “palliative” since they have no contractual relationship with the insurer. Only the patient through their attorney has legal options available to contest the use of this bogus basis for denial of PIP benefits. These options include demanding arbitration under the terms of the PIP contract or filing a bad faith claim against the insurer for example. If your patient does not have legal representation the best option for a provider is to advise their patient to seek the advise of experienced personal injury and insurance law attorneys such as those of Adler Giersch PS. Free consultations are available through the Adler Giersch PS offices in Seattle, Bellevue, Everett and Kent.

The Ins and Outs of Premises Liability

By Adler Giersch PS

Premises liability is a broad term for a situation where an individual is injured on land or a building that is owned or maintained by another. Laws involving premises liability place a duty on property owners and businesses to provide a safe environment for people on their property and, if they fail to do so and someone is injured as a result, they may be held responsibility. The injured person can pursue the same damages they would for other types of personal injury claims including medical expenses past and future, income loss past and future, and what is known as pain and suffering (negative effects on the quality of life).

How much the owner or occupier of the land or structure must do to provide a reasonably safe place and prevent injury, as well as the injured person’s ability to collect damages, depends in large part on the classification of the injured party at the time they were hurt. The foundation concepts for the duties, responsibilities and claims in this area of law are based in classifications that were set long ago in the common law. These classifications include Invitee, Licensee or Trespasser. If the person was on the property for the purpose of doing business with them , such as going to the store, a restaurant or doctors office, the person is called an Invitee. If the person was on the property for purposes that are primarily social or familial, the person is called a Licensee. Finally, if the person was on the property without invitation or permission, the person is called a Trespasser.

The person whom the owner or occupier of the land or structure must take the highest care not to injure is the Invitee. The owner of the business must exercise ordinary care to maintain the premises in a reasonably safe condition, and affirmatively act to discover and correct dangerous conditions. If the condition cannot be corrected, the proprietor or possessor must give warning to the person they have invited onto their property to do business.

The standard of care one must take with respect to social or familial guests or “Licensee” is less demanding. One must use ordinary care to repair, warn of, or otherwise make reasonably safe, a dangerous condition on the land, if the occupier knows or should know of the condition which poses an unreasonable risk of harm and the licensee will not discover or appreciate the danger.

The duty to a Trespasser is the least extensive as one would expect as the Trespasser is on the property without permission for his own purposes. The owner or occupier owes such a trespasser no duty except to refrain from willfully or wantonly injuring him.

Premises claims can arise in the context of business property, private residences, vacant lots, public walkways, recreational properties and others. Because of this, there can be various types of insurance involved including homeowners insurance, commercial liability coverage, self-insured, and public entity risk management pools. Whenever governmental entities are involved, there as very technical laws and regulations that must be followed by the insured party in giving notice of such claim. Typically, when a person is injured on a business property or private residence, he/she will have access to a limited pool of monies to cover initial medical expenses under a “Med-Pay” provision of the premise owner’s insurance coverage. Typically, Med-Pay provisions will provide medical coverage for $1,000.00, $3,000.00 or $5,000.00 of medical coverage. Health care expenses over the Med-Pay policy limits can either be billed to the injured party’s health care insurer or deferred until the conclusion of the liability claim.

The most commonly identified situation where people are injured and make a premises liability claim is when they trip or slip and fall inside a building or over an object leading to a building. Other instances where premises liability might arise include tripping on broken or cracked public sidewalks, on broken or poorly designed stairs or escalators, or because of defective, inadequate or inoperative lighting. Claims on private or public property can also arise from improperly maintained equipment, improperly maintained furniture or furnishings, fallen trees or limbs, dog bites, uncovered ditches, culverts, potholes, open holes on the property.

Some of the most difficult claims for injured persons to make occur when the person is injured because of the presence of a transitory condition such as water on the floor in an aisle or bathroom, ice on the walkway leading to the door or the infamous banana peel or other object in the grocery store floor. In those situations the business must have had notice the dangerous condition existed and the opportunity to correct it before the injured person can recover in damages. The exception to the notice requirement is where the owners or employees/agents of the business created the dangerous condition that caused the injury.

Because of the complexity of the proof issues associated with these types of claims, they are difficult cases for the injured person to prevail on such that an early consultation with competent counsel is called for.