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.