Cold, Hard Math: The Rise of Artificial Intelligence in Insurance Claims Handling

By Steven J. Anglés, Attorney at Law

Recovering from a traumatic injury is often a slow process that unfolds in ways patients often can’t anticipate. The full extent of an injury, or the effectiveness of treatment might not be fully known for a long period of time, and only after the patient’s life has seen a roller coaster of personal and professional changes. The same can be said of navigating the insurance claims process. Coordinating insurance benefits, interpreting insurance contracts, and hoping for the end of health care, returning to full activities, and trying to find closure in an ongoing insurance claim can take years and test the patience of even the most reasonable people.

Recent technological changes are attempting to take all of these human variables and generate insurance claim outcomes in seconds, without involving humans at all. Over the past decades, insurance adjusters have increasingly used computer programs to settle personal injury claims in an attempt to save money and increase the speed of the claims process. But, the latest attempts to automate the claims process have gone much further by eliminating the need for claims adjusters through the use of artificial intelligence[1]. While this may seem like a reasonable approach for both insurance companies and patients, the use of artificial intelligence is likely to result in an extremely one-sided and arbitrary claims handling process that will undoubtedly reduce costs for insurance companies, while leaving injured patients with claims that aren’t evaluated in a meaningful way, or a way that fully takes into account how humans would respond to such a claim to resolve it.

In May of 2017, Zürich Insurance announced it was deploying artificial intelligence to evaluate personal injury claims after testing showed claims processing could take years’ worth of information and reduce it to a single decision in a matter of seconds. Insurance companies in Japan and Great Britain have begun doing the same, replacing staff members with sophisticated computer algorithms to perform the work previously done by humans.[2]  Computers using artificial intelligence, such as IBM’s “Watson” will be capable of reading medical documentation in order to collect information necessary for paying medical bills using factors such as medical histories, length of hospital stays, and surgical procedure names.  Cognitive technology could be used to review medical reports for evaluating personal injury claims-reducing review time of 10-100 page documents from 58 minutes down to five seconds.[3]  The system would also be able to check insurance claims against their corresponding insurance contracts to determine whether there are any coverage problems that need to be raised against customers.[4]

Large insurance companies are not the only businesses interested in the idea of expanding the use of artificial intelligence in the processing of claims.  There are an estimated 2,000 start-up companies centered around artificial intelligence, many of which are developing software and apps in order to replace human actuaries, reduce labor costs, and allegedly make more accurate predictions.[5]  Lemonade, for example, is a property and casualty insurance company funded by corporations such as Google that touts it can insure homeowners and renters in 90 seconds and pay out claims in 3 minutes through an app using a smart phone.[6]  Tractable is a London-based artificial intelligence corporation that promotes its ability to streamline automobile property damage repair payments by comparing uploaded photographs and repair estimates, reducing the cycle time from days and weeks to minutes, without involving a human claims handler.[7]  Yet another startup company, RightIndem, looks to put the injured party in charge of the entire claims process for motor vehicle collisions by inviting customers to make and process claims at “their pace” using their smart phone, tablet, or personal computer.[8]  The one constant among all of these companies is the promise to reduce claims “leakage,” a term used to describe the dollars lost through claims management “inefficiencies” that raise costs and lower profits for insurance companies.

While the use of artificial intelligence to process personal injury claims has been described as a “focused set of initiatives to improve customer experience and… effectiveness in [the] claims” function,[9] serious doubts remain about the ability of artificial intelligence to appreciate the very human impact, and unique nature, of each traumatic injury on the individual.  This artificial process also cannot replace or replicate the human behaviors, emotions and experiences that impact a judge or jury tasked with evaluating a personal injury claim in court. Even insurance adjusters at times have been forced to acknowledge the inherent limitations of mathematical formulas and computers in successfully evaluating and resolving personal injury claims.  In short, artificial intelligence is unlikely to fully appreciate the nuances that are part of each and every personal injury claim, and unique to each patient.  The attorneys and staff at the law firm of Adler Giersch remain committed to ensuring that our clients are never seen as just names and numbers on a piece of paper.  If you, your staff, or your patients have any questions regarding the processing of insurance benefits, feel free to reach out to us.

 


[1] “Artificial intelligence”, or, “machine learning”, is the theory and development of a computer system able to perform tasks that normally require human intelligence, such as visual perception, speech recognition, decision-making, and translating between languages. Oxford Dictionaries.

[2] An”algorithm” is a mathematical instruction that allows a computer to process information. As more and more algorithms are calculated, the computer can begin to learn on its own and propose solutions. Deangelis, Stephen F. “Artificial Intelligence: How Algorithms Make Systems Smart.” Wired, September 2014.

[3] “AI and Insurance: Are Claims Jobs in Danger?” Management, January 9, 2017.

[4] http://mainichi.jp/english/articles/20161230/p2a/00m/0na/005000c

[5] Nanalyze. “10 Artificial Intelligence Startups in Insurance.” Nanalyze, May 21, 2017.

[6] https://www.lemonade.com/faq#policy

[7] https://tractable.ai/products/insurance

[8] https://rightindem.com/

[9] “AI and Insurance: Are Claims Jobs in Danger?” Management, January 9, 2017.

The Personal Injury Protection Guide for Providers

PIP

By Lauren E. Adler, Attorney at Law

If your patient is treating from a car collision, Personal Injury Protection Insurance (also known as PIP) is one way that your services are paid for.  We advise providers and patients alike to double check—and then triple check—that PIP is listed on the declaration page of their auto insurance policy.  If you don’t have it, add it.

PIP is great because it covers medical treatment more broadly than many health insurance policies.  To the extent of your patient’s PIP limits of at least $10,000 (the mandatory minimum that auto insurers in Washington must offer), there are fewer restrictions on what is covered, no in-network/out-of-network distinction between providers, no copays, no deductibles, and no annual visit limitations.  According to the Revised Code of Washington (RCW) 48.30.010 and the Washington Administrative Code (WAC) 284-30-395, the statute and rule which establish the legal standards for prompt, fair and equitable settlements by insurance companies for PIP claims, a bill submitted under PIP can only be denied if the treatment (1) is not reasonable, (2) is not necessary, (3) is not related to the collision, or (4) occurs after 3 years of the collision date.  WAC 284-30-395 provides, “These are the only grounds for denial, limitation, or termination of medical and hospital services,” under PIP.

PIP covers any person named on the auto policy, as well as household members.  Any passenger in the insured car is covered, as well as any pedestrian or cyclist involved in the collision.  Furthermore, a patient is not limited one layer of PIP coverage. If the patient has their own auto policy, that PIP comes in as a secondary layer.  Depending on the situation, there could be multiple layers of PIP available, depending on the patient’s own policy and their role in the collision – owner, driver, passenger, pedestrian or cyclist.  If you are unsure about a patient’s potential PIP coverages, we recommend the patient consult with an attorney.

If your patient is treating from a collision caused by someone else, save yourself the energy of sending bills to the at-fault driver’s insurance company.  The at-fault insurer is not responsible for a dime until the patient’s injury claim is ready for settlement.  PIP, on the other hand, pays medical bills on an ongoing basis.  So even if your patient is not at fault and it seems counterintuitive to send the bills to the patient’s own insurance company, all bills go to PIP.  When PIP runs out, the patient’s health insurance is next in line to pay.

All of this may sound well and good, but it often isn’t smooth PIP sailing.  Insurers are always cooking up creative ways to deny bills and to discourage drivers from obtaining, or increasing, PIP coverage.  While Washington state law requires insurers to offer PIP insurance, insurers make it very easy for drivers to “waive” their right to PIP by simply clicking a “rejected” box on the insurance application.

Below, we happily debunk some of the myths insurers would love you or your patients to believe about PIP.

  1. If you have health insurance, you don’t need PIP.

False.   PIP is not extraneous – it is protective.  As long as treatment is reasonable, necessary, and related to the collision, PIP must pay for the care.  Therapy visits are not limited per the terms of a PIP policy like they frequently are in health insurance policies.  Because PIP is more expansive in terms of medical treatment covered, often times it is absolutely necessary to have, especially for patients who could not otherwise afford to pay out of pocket for treatment that goes beyond their health insurance allowance.   Moreover, PIP insurance covers wage loss and household services expenses the patient may incur as a result of the collision.

  1. The adjuster is the final authority on whether your patient has PIP coverage available to them.

False.  Just because the adjuster tells your patient there is no PIP coverage on his or her auto policy, that isn’t necessarily the final word.   Under Washington state law, insurance contracts are interpreted in favor of the insured, not the insurance company, so the insurer has the burden to prove that they offered PIP but the patient rejected it.  The rejection must be signed in writing by the patient, so the adjuster simply saying that there is no PIP available is not good enough.  Your patient should demand a copy of the signed waiver.  If the insurer cannot produce it, the adjuster must open a PIP claim for a minimum of $10,000.

  1. PIP does not cover “palliative” care.

False. Whether treatment is “palliative,” i.e., will not ultimately cure the patient, is not relevant.  Under the law, what matters is whether the treatment is (1) reasonable to address the injuries, (2) necessary to treat the injuries, and (3) related to the collision.  If it is all three, PIP is obligated to pay.  RCW 48.30.010; WAC 284-30-395.

  1. The patient must sign a release allowing the insurer unrestricted access to all medical records.

False. The patient does have a duty to cooperate with the PIP insurer, so they do need to allow the adjuster access to records for collision-treatment if it is requested.  However, the adjuster needs only enough to determine that treatment is reasonable, necessary, and related to the crash.  We recommend a careful review of any release your patient signs, especially if the patient has a long history of treatment, to ensure the insurer does not get full access to the patient’s entire history and file which could be used against them to cut off care.

  1. The adjuster can make their own medical determinations.

False.  Medical opinions, such as whether your patient’s injuries are from a prior condition, whether your patient is getting too much treatment, or whether your patient does not need further care, must be made by a medical practitioner.  If the adjuster decides to cut off your patient’s PIP, that decision must be supported with a medical opinion from a similarly licensed healthcare professional.  If the adjuster asks your patient for an exam, called an Insurance Medical Exam, is usually a sign that the insurer is gearing up to cut off your patient’s PIP.

  1. PIP coverage ends when the patient improves enough.

False.  PIP covers care until it is no longer reasonably necessary, or until coverage runs out. The insurer cannot close a PIP claim because a patient is able to go back to work, or is somewhat improved.

The attorney team at Adler Giersch is experienced at navigating PIP insurance issues. If your patient has been put on notice that they will need to attend an IME, or is getting the runaround from their PIP insurer, let us know and we are happy to advise.

 

The Emerging Privacy Invasion from the Insurance Industry

By Jacob W. Gent, Attorney at Law

The auto insurance industry have begun implementing programs to provide more personalized quotes based on the actual driving habits of consumers through the use of auto tracking devices.  And some insurance companies are offering consumers financial incentives in the form of discounts, as much as 30% off premiums, to entice customers to install these tracking devices on their vehicles.[1]  Before deciding to enroll in such a monitoring program, one should stop and consider the motivation and risk behind these offers.

The birth of tracking devices is the offspring of “telematics,” the merger of telecommunications and infomatics, enabling the insurance industry to move closer to a “Pay How You Drive” business model that can calculate premiums based the driving habits of the policyholder.[2]  These devices are installed in your car and records information such as vehicle speed, acceleration and braking rates, cornering, miles driven, vehicle location and route driven, time of day the vehicle is driven, and other vehicle operational information such as fuel consumption.[3]  Telematic systems may be linked through your smart phone, connected to a vehicle’s infotainment system, or plugged in to the On-Board Diagnostics (OBD) port.

While the allure of cheaper rates for car insurance is appealing, make no mistake: insurance companies are out to earn profits, huge profits.  No matter how neighborly, caring, or friendly their advertising scheme may be, auto insurers will be able to search the data collected through telematics to show you are a “risky driver” in order to raise your rates.  And with telematic tracking devices voluntarily installed in a customer’s vehicle, the easier it is for insurers to charge higher premiums.[4]

The criteria you must satisfy to receive any premium discount is determined exclusively by the insurance company and subject to change at any time.  Moreover, insurance companies do not guarantee any discount when you enroll in these monitoring programs.  According to Progressive’s Snapshot Common Questions FAQ:

“Most Snapshot customers earn a discount based on their safe driving; however, riskier driving based on [driving habits that] indicate a greater likelihood of being in an accident and may result in a higher rate at renewal.”[5]

This means that your premiums will be set based on a projection of a collision, not on data of an actual collision.  Progressive was the first auto insurer in the United States to start using a telematics tracking system.  Beginning in 1998, Progressive rolled-out the “Snapshot” program Copy of March 2017 Advocate Article to incentivize good driving habits by offering discounts to safe drivers.[6]  Initially, the data collected by Progressive was only used to determine whether a policyholder qualified for the advertised discounts.  But starting in 2013, Progressive began using telematics data to adjust and increase rates based on driving behavior.[7]

Progressive claims 80% of its policyholders would benefit from the Snapshot program, but interestingly only about 25% of their customers participate in the program.  Similarly, Allstate reported to the Wall Street Journal that approximately 30% of its customers participated in its Drivewise program.[8]  Apparently, not all drivers are eager to give insurance companies access to more of their personal information, such as where they drive and when.

The reluctance of many consumers to sign on to these insurance industry programs has something to do with well-founded privacy concerns.  Advertisers, and the data brokers who sell information to them, track consumers’ virtual footprints online while banks and credit card companies track when and where customers shop, and retailers monitor and market to consumer buying patterns.[9]  Monitoring when and where a person drives can feel especially intrusive to the American consumer, where the idea of the “open road” is synonymous with our general notion of freedom.

Even more concerning is the question of who else might gain access to this information.   According to Jeff Wright, Vice President of Usage Based Insurance at Liberty Mutual:

“Liberty Mutual values and respects our customers’ privacy.  We will not share personally identifiable usage data we collection with any third party except to service our customers’ auto policies, for research, or as required by law.”[10]

The assurance of protecting privacy in the first part of the sentence is voided by the phrase “except to service our customers’ auto policies, for research, or as required by law.”  That latter statement is vague enough to allow insurers to do what they want with the data.  For example, the phrase “required by law” means your personal data could be subject to subpoena by a court or provided to law enforcement agencies to comply with state or Federal laws, which may have nothing to do with an individual’s driving habits.[11]

Many theorize that it is only a matter of time before insurance companies require telematics devices be used on every vehicle before issuing a policy and that certainly appears to be the trend within the automobile manufacturing industry.  According to a white paper by IHS Technology published in 2011, it is predicted that “by the end of 2018, the percentage of new cars available for sale in the U.S. Market with embedded telematics will soar to 80 percent.”  A 2013 report by ABI Research stated “global insurance telematics subscriptions [are predicted] to grow at a compound annual rate of 81 percent from 5.5 million at the end of 2013 to 107 million in 2018.”[12]  Once the use of these tracking devices becomes mandatory, insurance companies’ profits will soar as they constantly monitor their customers’ behavior.  Until that time, be sure to read the fine print before voluntarily agreeing to participate in any insurance monitoring program to decide whether the possible savings is worth the privacy you are giving away.

Next time you think, “Why not? It may save me a few bucks…,” stop and consider the motivation and risk behind the offer.  The attorneys at Adler Giersch are as committed to advocacy for our clients as we are on staying abreast of developments in the insurance, legal, and medical worlds that impact all of us.


[1] Consumerist; https://consumerist.com/2016/01/11/some-drivers-dont-want-insurance-companies-tracking-them-even-if-it-means-discounts/

[2] Digital Trends; https://www.digitaltrends.com/cars/how-telematics-may-affect-your-auto-insurance-rates/

[3] Allstate.com; https://www.allstate.com/tools-and-resources/car-insurance/telematics-device.aspx

[4] Digital Trends.

[5] Progressive.com; https://www.progressive.com/auto/snapshot-common-questions/

[6] US News & World Report; https://cars.usnews.com/cars-trucks/best-cars-blog/2016/10/how-do-those-car-insurance-tracking-devices-work

[7] Id.

[8] Consumerist.

[9]  Id.

[10] Digital Trends.

[11] Id.

[12] Digital Trends.

Promising Developments for Survivors of Traumatic Brain Injury: New Studies Link Increased Physical Exercise with Enhanced Neuroplasticity

By Melissa D. Carter, Attorney at Law

 

“They thought that the brain was too sophisticated for its own good.  That during evolution it became so complex that it lost the ability to repair itself and to restore lost functions or to preserve itself.  They were wrong.  Because it turns out that its very sophistication can be the source of a unique kind of healing…the brain’s way of healing”

Doidge, Norman, MD, Introduction.  The Brain’s Way of Healing: Remarkable Discoveries and Recoveries from the Frontiers of Neuroplasticity.  James H. Silberman, New York, 2015.  Print.

The human brain consists of approximately 100 billion neural cells.  Until fairly recently, the prevailing wisdom was that people are born with a finite number of brain cells and that they will not regenerate once dead.  However, we now know that certain areas of the brain under very certain circumstance have the potential to generate new cells (called neurogenesis) and create new neural pathways, often referred to as “neuroplasticity.”  Neuroplasticity is the ability of the brain to change and adapt in response to experience.  This understanding has led to many exciting developments in brain science, and in particular, in relationship to brain injury recovery.  Current understanding is that there are two types of brain neuroplasticity:
  1. “functional”: which is the ability of the brain to move functions from a damaged area to undamaged areas; and
  2. “structural”: which is the brain’s ability to morph  its physical structure as a result of learning.

Neuroplasticity, if it occurs, can be an important piece of recovery following a traumatic brain injury, and can play a role in both cognitive and physical rehabilitation following brain injury. Part of brain rehabilitation is aimed at trying to rebuild connections among the nerve cells, or neurons. This “re-wiring” of the brain, according to theory and practice, may under certain circumstances, make it possible for part of a previously damaged function area to be assisted by another, undamaged area. The connections among the cells, at times, appear to be receptive to this type of change and expansion.

The brain’s plasticity is influenced by many variables, including diet, exercise, cognitive engagement, emotional state, sleep and stress level.  Evidence from both human and animal studies suggests that certain types and degrees of enhanced physical exercise can help facilitate neuroplasticity of certain brain structures, including enhanced cognitive function responses, as well as affective and behavioral responses. As researchers get closer to understanding neuroplasticity and brain injury, the developments may have far reaching impacts on brain injury recovery and rehabilitation.

A recently published special paper in the journal Neural Plasticity looked at multiple recent studies from the past 12 months and seemed to connect certain types of physical exercise with growth of new brain cells, increasing memory center, improving IQ scores and theorizing the possibility of preventing brain deterioration as one ages.  The paper cites 6 different international studies that used brain scans, EEG recordings, blood sampling and saliva sampling to investigate the exercise-induced brain activity and volume changes in different brain areas, including frontal and central regions of the brain, the hippocampus, cerebellum and motor cortex.  The studies looked at the impact of a variety of physical exercise, such as dancing, playing handball, walking or cycling.  The outcome variables referred to cognitive (memory consolidation) and motor performance measures.[1]   The results of the multiple studies suggest that physical exercise may play a role in triggering neuroplasticity and, thereby, could possibly enhance an individual’s capacity to respond to new demands with behavioral alterations.

Lifestyle strategies proven to promote neurogenesis include:

  • Interval training exercise;
  • Reducing overall calorie consumption;
  • Reducing carbohydrate consumption (especially grains and sugars);
  • Enough healthy fat consumption to eliminate insulin resistance; and
  • Enough high-quality omega-3 fats and eliminating damaged omega-6 fats (processed vegetable oils).[2]

Advances and developments in rehabilitation in the area of brain health are ongoing.  At Adler Giersch, we remain devoted in our drive to study, learn, and advance the understanding of traumatic brain injury, rehabilitation and treatment options so that we can provide the best legal representation to our clients.  If we can be of assistance, simply contact us via email or give us a call.


[1] https://www.hindawi.com/journals/np/2016/3643879/ Neural Plasticity, Volume 2016 (2016), Article ID 3643879, 3 pages “Neuroscience of Exercise: Neuroplasticity and Its Behavioral Consequences.” Henning Budde, Mirko Wegner, Hideaki Soya, Claudia Voelcker-Rehage, and Terry McMorris.
[2] http://articles.mercola.com/sites/articles/archive/2015/01/15/neuroplasticity-brain-health.aspx

Understanding and Preventing PIP-IME Abuse and Evolving Insurance Tactics

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.