EXAMPLE 1: A new patient appears to be experiencing symptoms related to a chronic sprain/strain injury, which the patient relates to an auto accident. The accident occurred just over two years before your first consultation. Further, it appears that the auto accident resulted from the negligence of another driver. The patient makes no mention of any legal action, either concluded or pending. You know that a three-year limitation period governs personal injury claims based on negligence. Should you say something?
EXAMPLE 2: A new patient reports intermittent flare ups of neck pain and headache following cervico-dorsal sprain/strain injury sustained in an acceleration/deceleration auto accident. Exam findings support the diagnosis. You determine that further rehabilitative care is necessary. Unfortunately, the patient’s insurance carrier is about to or already has terminated Personal Injury Protection benefits after its adjuster or IME examiner suggested that additional care would be merely palliative. The patient still has five months of eligibility under her one year PIP coverage, and there is no other insurance or means to pay for care. How do you proceed?
In each of the examples above, the patient’s interests would clearly be served by consultation with competent legal counsel. You know the patient is unequipped to preserve or pursue remedies and rights provided by law. Should the doctor or therapist remain silent while those rights and remedies are slowly extinguished?
Some health care providers choose to remain silent for several reasons: an aversion to lawyers, an aversion to the legal system and its processors, having been frustrated or “burned” by an attorney who represented a former patient, or believing that his/her credibility will be compromised if legal matters creep into discussion with the patient.
There is a key distinction between giving legal advice and discussing the possible need for legal advice. As long as discussion with a patient falls into the latter realm, the provider’s objectivity is in no way compromised. A doctor’s awareness of the imminent expiration of a statutory limitation period or non-compliance by an insurer with the insurance policy should always prompt this type of discussion.
While discussion of the possible need for legal consultation (recognizing there is a clear distinction between recommending a legal consultation and recommending legal representation) may seem uncomfortable for a few providers, many understand the consequences of their silence may be disastrous for the patient. Fair resolution of a legal claim will often provide resources for needed care, and can bear significantly on the patient’s well-being. If a full assessment of the patient’s situation calls for discussion of the possible need for legal representation, the health care provider should feel comfortable inquiring into the matter and providing helpful information.
Lawyers know that oriented and articulate health care providers are absolutely crucial to the fair resolution of personal injury claims. Similarly, competent lawyers are crucial to the effective involvement of health care providers in the legal process. In addition to the primary interest of pursuing the client’s rights, the attorney can ensure:
- the facilitation and sharing of information among providers,
- the patient will follow through with the treatment plan to maximize rehabilitation results,
- reasonable billing for services to the patient will be paid,
- time taken from a busy health care practice will be minimized,
- the doctor or therapist will be properly prepared to report and/or testify, and
- the provider will be fairly compensated for services provided as an expert witness.
A provider’s credibility is rarely challenged because he/she has referred a patient to a particular attorney. In rare cases, questions will be raised during deposition or trial testimony in an attempt to challenge the credibility of the provider’s testimony. This type of challenge can be easily deflected since the provider will have first-hand knowledge, personal experience, and/or prior discussion with colleagues regarding reputable attorneys and firms. These names can be provided to the patient who asks for recommendations. If you have had personal contact with an attorney in a professional setting and received positive results, this too can be shared with the patient. Thereafter, responsibility for the selection of legal counsel for consultation or representation ultimately rests with your patient.