by Richard H. Adler And Arthur D. Leritz, Attorneys at Law
Insurance companies are very good at advertising: “Like a Good Neighbor,” “You’re in Good Hands,” they are “On Your Side,” with visions of Snoopy, cute geckos and insurance “universities,” all designed to make it look like insurance companies are there to help the little guys get what they need in their time of need. More and more we learn from your patients/our clients on how their auto insurer wants to send them for a “second opinion” to make sure they are getting the right medical care they need after a collision.
This type of persuasion to enlist the injured person’s cooperation is not only false, but we believe that is crosses the line and likely violation of state law. The statute, Revised Code of Washington (RCW) 48.01.030 states:
“The business of insurance is one affected by the public interest, requiring that all persons be actuated by good faith, abstain from deception, and practice honesty and equity in all insurance matters. Upon the insurer, the insured, the providers, and their representatives rests the duty of preserving inviolate the integrity of insurance.”
Let’s take a closer look at the language of the law. For example, “Act in good faith, abstain from deception and practice honesty and equity.” This means that insurance companies are required, by law, to treat their insureds fairly, and to be truthful to them about their benefits. Yet, insurance companies routinely tell their insured (your patient) that a medical examination will be conducted by an “independent” examiner. They further claim the evaluation is sought because they are “concerned” about their insured and want to make sure the treatment being given is effective to resolve their injuries. In reality, the IME is more properly and commonly known in the legal community as an “insurance medical examination” or even an “involuntary medical examination,” and its purpose stands in sharp contradiction to the insurance companies’ requirement to follow the law and treat their insureds fairly and honestly.
The law also requires that the insurer “preserve inviolate the integrity of insurance.” Again, this requirement of fairness and honesty holds insurance companies to a high standard that they routinely fail to meet. Insurers do more than “request” their insured attend an IME. They demand it, with letters that typically compel attendance:
“A person making a claim shall be examined by any physician we choose and paid by us as often as we reasonably may require.”
In order to continue receiving PIP benefits, the insured must comply with the terms and conditions of the insurance contract. The patient is placed in a “lose-lose” position. If they attend the IME, treatment will be predictably terminated. If they do not attend the IME, PIP benefits will terminate because of the insured’s failure to cooperate, forcing the insured to stop treatment prematurely and causing greater physical harm to the patient. The insurer can “hold hostage” treatment bills pending receipt of the IME report which invariably adversely impacts the patient’s access to health care and their ability to follow through with treatment recommendations. More recently, insurers have started unilaterally scheduling IMEs and then when the insured has a scheduling conflict – they cry foul and assert the insured is not “cooperating” for purposes of complying with the terms of the policy.
Time and again the insurer’s true purpose in requesting an IME is revealed by their selection of an examiner from the small group of doctors who repeatedly and routinely conclude further treatment is not necessary. That true purpose is cost containment, a purposeful effort to reduce the amount of benefits paid out for care under the PIP policy. Where the insurer sets up the examination, hand-picks the examiner and pays the examiner or agency a significant fee, a negative outcome for the patient is often a given. In essence, the insurer gets what it pays for, and the insured gets no benefit for the insurance premiums she dutifully paid every month
The PIP IME can have a toxic effect on many aspects of the insured’s claim. The examiner’s report will be used to challenge the “reasonableness and necessity of care,” and/or can be used to challenge whether the treatment is related to the trauma. The IME report can unsettle a patient’s confidence in their own doctor. The IME report often resurfaces during settlement negotiations with the liability insurer or the underinsured motorist insurer, creating obstacles for a fair and reasonable settlement without the cost and burden of litigation.
Another problem with the IME is how often disagreements arise between what the insured and the insurance doctor contend occurred during examination. Experienced attorneys representing those injured in a traumatic event should be uncomfortable with the idea of a swearing contest at an arbitration or trial between an unrepresented, unsophisticated patient and a trained care professional that routinely performs IMEs.
Despite the obstacles presented to a patient and his/her doctor by a pending IME, the patient is not powerless. There are actions to take which can help level the playing field and restore good faith and honesty to the IME process. They require consideration of the following pointers:
- Given the hostile and adversarial attitude of insurers, it is important for healthcare professionals to understand the importance of obtaining a patient centered second opinion evaluation for treatment purposes. Second opinions ordered by the treating doctor provide a second knowledgeable source of insight into the patient’s current condition, diagnosis, causation and treatment required. They also add substantial documentary evidence that PIP examiners must take into account when arriving at their own opinions, and which can be used to rebut the IME report if the examiner does not. These are true second opinions for clinical purposes to assist in the evaluation of treatment options. A referral for a second opinion evaluation by a doctor such as a physical medicine rehabilitation specialist (physiatrist) or a chiropractic specialist needs to be made fairly early in the treatment phase, and before the insurer requests an IME. The cost of the treating second opinion evaluation can be submitted by the second opinion doctor to PIP for payment just like any other care expense, and is subject to pre-approval by the insurance company.
- The healthcare provider needs to understand they have no right to confront, challenge, or change the insurer’s decision to require the patient to attend an IME. Only the patient, through his/her attorney, has standing to intervene and effectively challenge the insurer’s need for the examination, timing of the examination, selection of the examiner and parameters of the evaluation. From a legal point of view, more can be done to protect a patient’s legal rights and access to healthcare prior to an IME occurring than after it. Patients should be encouraged to seek a legal consultation with an experienced personal injury attorney before attending the IME as it is a costly and time consuming process to reopen PIP benefits once the IME has cut off care and the claim has been closed.
- Effective personal injury attorneys will insist the insurer follow the dictates of WAC 254-30-395 which require an insurer to select an examiner that is “currently licensed, certified, or registered to practice in the same health field or specialty as the healthcare professional that treated the insured.” The intent of this code provision is to safeguard the patient/insured’s choice of healthcare provider. For example, a PIP insurer may no longer request a medical doctor evaluate chiropractic care and vice versa.
- The gold standard for attorneys representing individuals subjected to an IME requires the attorney exercise the client’s right to have an observer present during the IME. An observer’s presence at the IME ensures the procedures, tests, and results are reported accurately and the examination does not become an oral examination of the insured. Competent counsel will ensure that the observer is a licensed healthcare professional who will audiotape the examination to eliminate the swearing contest between the patient and the examiner as to what was and was not said during the examination.
- When an IME takes place and an adverse opinion is provided by the examiner, it is important for the treating doctor to obtain a copy of report. The report is easily obtained through your patient or his/her attorney, as the patient he/she has a legal right to a copy of the report under WAC 284-30-395. The report must be requested from the insurance company, not from the IME doctor. Once the IME report is in hand it must be carefully read and responded to by the treating doctor. This response will rebut erroneous, inconsistent or incomplete findings and conclusions, provide the findings which support ongoing injury requiring care, states the ongoing relationship of the injuries/conditions to the traumatic incident and what additional care is required to move the patient toward MMI.
Together, healthcare professional of all practice scopes and lawyers form the first line of defense between the injured person and debilitating physical injury, financial loss, and the cost containment practices of the insurance companies. The medical/legal connection is natural and necessary today more than ever. The interests of the patient are best served when the healthcare and legal communities work together. This is the only way to make insurance companies take seriously their duty to “Act in good faith, abstain from deception and practice honesty and equity.”
While every patient may not ultimately need to hire an attorney who specializes only in personal injury and insurance law following a traumatic injury, every patient needs and can greatly benefit from a legal consultation with one. It is our honor and privilege at Adler Giersch to provide knowledgeable, compassionate, highly rated representation to your traumatically injured patients.