In a classic episode of Seinfeld, Jackie Chiles, Kramer’s over-the-top personal injury (PI) attorney, takes on a hot coffee case by emphatically ordering his secretary to “Call Dr. Bison. Set up an appointment for Mr. Kramer here. Tell him it’s from me.” While this may be a hilarious caricature of a legal stereotype, it’s also an example of a lawyer who is far too involved in his client’s medical decisions and could, in all honesty, use some remedial ethics training. Still, for personal injury attorneys, we know the line between helpful guidance and overstepping is no laughing matter; it can be an evidentiary minefield.
As seasoned personal injury litigators, we understand this tightrope walk of personal injury case management better than most. The question every lawyer must answer is: How involved should you be in your client’s medical care? Don’t get involved at all, and your client may not get the care they need, jeopardizing their recovery and the value of their case. Get too involved, and you risk tainting your client’s medical evidence and handing the defense the opportunity to claim the medical care was “litigation-driven,” which can tank an otherwise strong claim.
“The discussion boils down to how involved a lawyer should be in a client’s medical decisions. It’s a legal balancing act. Not getting involved is almost a disservice to the client, but if you get too involved from the defense perspective, medical care is now what’s called litigation-driven, and we’ve even seen that in court. That’s a way they can defeat these cases or keep the damages down. Overinvolvement ruins a good case from the jump by compromising the integrity of your argument,” said Jason Schneider, Co-Founder & Partner at Schneider Williamson.
The goal is to ensure you don’t leave your fingerprints all over the case, as this could undermine the case altogether. Here are five crucial tips for expertly navigating this difficult process, positioning yourself as a partner and trusted advisor for clients without leaving an indelible mark on the case.
Personal Injury Case Management in Georgia: The Medical Side | The Lawyers Toolbox
To refer or not to refer? This is a question many attorneys ask, especially when faced with the prospect of navigating the medical minefield in a PI case. Here are 5 tips to improve personal injury case management, specifically the medical side, gleaned from thousands of cases’ worth of experiences and insights:
- The Counselor, Not the Referrer: A Critical Distinction
- The Dangers of In-House Referrals
- Coach Your Client to “Own Their Own”
- The Doctor’s Office Is Not a Law Office
- When LOPs Are the Only Option
Related Article: 10 Ways to Increase the Value of a Personal Injury Case
1. The Counselor, Not the Referrer: A Critical Distinction
At the heart of this issue is the distinction between providing advice and making a direct referral. As an attorney, your role is to advise and counsel your client, not to act as their medical case manager.
This distinction is paramount because it directly impacts the evidence. If a medical record shows a direct referral from your firm, the defense can argue that the treatment was not medically necessary but rather an attempt to inflate the case’s value.
“It becomes an evidentiary problem that gets presented to a jury. If a jury sees the attorney’s name and referrals in the medical records, they’re going to look at that and become suspicious. They may even think the attorneys are taking advantage of the client and have drummed up all this medical care that was unnecessary. That’s what insurance companies already think, and this is just giving them ammo,” said Campbell Williamson, Co-Founder & Partner at Schneider Williamson.
Empower your client to make their own choices. If a client needs help finding a provider, it is fine to point them in the right direction and provide a list of potential providers based on the client’s apparent needs, but the client must be the one to choose the provider and schedule the appointments. This puts the client in the driver’s seat and protects their case from allegations of being “lawyer-driven.” It also empowers the client to be the master of their own care and recovery, and it may help them recover faster.
By empowering your client, you build a partnership based on trust and shared responsibility.
“We advise people and manage their cases, and medical care in a personal injury case just so happens to be a big part of the case. We’re not the ones making the appointments or the medical decisions. That is between them and their providers. We advise clients to seek whatever care they need, and we empower them to do it themselves. They are the ones who call the provider, just like anyone would if they were getting medical care for any illness or injury that didn’t involve a lawsuit. We don’t tell them where to make an appointment, and we don’t make an appointment for them. Fortunately, whatever is best for their health is best for the case. That is not something we need to interfere with,“ said Williamson.
Related Article: 10 More Ways to Increase the Value of a Personal Injury Settlement
2. The Dangers of In-House Referrals
Many firms make the mistake of having a “preferred list” of doctors who work on a lien basis and don’t accept health insurance. While this may seem convenient, it can be an ethical and evidentiary nightmare, particularly if your client has good health insurance.
A client who uses a lien doctor when they have perfectly fine Blue Cross Blue Shield health insurance, for example, can be portrayed as being a participant in a scheme to inflate their damages. Just as severely, this borders on being unethical if they have insurance but aren’t using it.
“It’s a disservice to a client to suggest they be treated by a doctor who won’t take their health insurance. Not only does it create an evidentiary issue that can be used to attack their case, but it also likely creates financial medical obligations for the client that they would not otherwise have. At the end of the day, you need to pursue the client’s best interests, and these situations are most certainly not the case,” said Williamson.
We’ve seen cases where a client with excellent health insurance was sent to a lien-based provider by a previous attorney, placing them in a worse financial position and exposing their case to attack. So, it stands to reason that if a client has health insurance, they should use it.
Explain to your client that the most critical thing is to get the best medical care possible and that using their insurance is usually the most effective way to do so. This also demonstrates to a jury that your client was genuinely seeking treatment, not just running up bills.
Still, sometimes, these situations get complicated when a client needs to seek out a second, third, fourth, or even fifth opinion because doctors are not taking their injuries seriously, which can occur with complex injuries. Exercise extreme caution when helping a client navigate these situations.
“We just make them take the lead on these things. We guide them and advise them, sometimes strongly advise them, to do things and explain what the repercussions are of not following the advice. We don’t make the appointments, choose the doctor, or set up any of the care – we explain the situation and give our professional opinion on how not following our advice could result in an outcome that doesn’t really serve their best interests. Really, as a lawyer, it’s important to not try to control every aspect. It can seem counterintuitive, but your job is actually to help your client rediscover their agency throughout this process. We can wax poetic about it, but that’s what a settlement is all about in some ways: helping your client reclaim what has been taken from them. That needs to be top of mind,” said Williamson.
Related Article: Why Use a Legal Focus Group in Personal Injury Law | We Can Help!
3. Coach Your Client to “Own Their Own”
When a deposition or trial arrives, how your client answers questions about finding their doctors is paramount. Defense attorneys are adept at asking questions to trap an unprepared client. They won’t ask, “How did you learn of this provider?” They’ll ask, “Who sent you to this doctor?”
“We cannot emphasize enough how important it is to coach your clients well in advance. Take plenty of time to walk them through how to answer questions because defense attorneys are going to prime the pump – they’re going to try to set them up to suggest that the lawyer was in cahoots or trying to game the system. They’re going to come locked and loaded with loaded questions. That’s the nature of the beast. The goal should be to sidestep these landmine questions,” said Williamson.
A poorly coached client might simply say, “My lawyer sent me,” which is particularly problematic when that isn’t even true. This one sentence can create the perception that the entire case is a fabrication. The proper way to prepare a client is to coach them to own their decisions and explain their rationale.
Instead of the one-line answer, the client should be able to say, “I was still hurt and not getting the answers I needed from my providers. I trusted my attorneys, who are my counselors and who I’ve hired to advise me, and asked them for recommendations. They gave me some local names, and I called the options and chose this doctor, and I’m glad I did, because they helped me.”
This statement is far more compelling and persuasive to a jury. It protects the integrity of the case and the client’s credibility. This, like many other strategies, boils down to lawyering best practices.
Related Article: 5 Tips for Dealing with Insurance Adjusters | The Lawyers Toolbox
4. The Doctor’s Office Is Not a Law Office
Another critical piece of advice is to instruct your clients to keep legal discussions and medical discussions separate. Many personal injury attorneys do not think to warn clients of this pitfall. Coaching should begin from the very beginning, before they even see a doctor.
A client might innocently tell their doctor, “My lawyer told me I should get an MRI,” or “We’re going to get a big settlement for this.” If a doctor or nurse records this in the client’s medical chart, which they are trained to do, it becomes admissible evidence.
“All of a sudden, you have a conversation between the client and the doctor that says something about their attorney and the advice their attorney gave them, and it’s game over at that point. Because that is absolutely going to come out in front of the jury – you’re only fooling yourself if you think it won’t come to light during trial,” said Williamson.
These entries can be used to suggest the client is motivated by financial gain rather than genuine medical needs. This is particularly problematic in Georgia, where recent tort reform changes have made letters of protection admissible as evidence.
“We have to coach our clients extensively, emphasizing that when they go to see their doctor, they should only talk about their health care. When they’re talking to us, that’s when they talk about the law. It’s important that they understand that distinction clearly from the start,” said Williamson.
The defense will use any mention of litigation in the medical record to paint a picture of an attorney-driven claim. You must coach your clients to talk about their health with their doctors and about the law with you, and only you.
5. When LOPs Are the Only Option
So, what do you do if your client has no health insurance and no ability to pay for their medical care? In this scenario, a letter of protection (LOP) or lien is often their only option. For these clients, it is not a matter of choice; it is a necessity. The client must be prepared to explain this to a jury if asked.
The client’s testimony should be, “I had no other options. I could not afford to treat, and this was the only way I could get my injuries treated.” This shows a genuine need for treatment and frames the LOP as a last resort, not a first-line strategy to inflate bills.
This is a critical distinction, and a skilled litigator knows how to present this in a way that resonates with a jury. The ability to manage this “little thing” is what often sets apart a good firm from a great one and can make all the difference in the final settlement.
“The most important thing lawyers need to be aware of is the critical nature of deposition and trial prep. You have to tell your client that it all comes back to them. When they’re answering questions, they shouldn’t be saying they did everything because you told them to – they need to take ownership. They should try to get 10 ‘I’s in the answer if they can. That’s why agency is so important. If they had no insurance and had to rely on a LOP or lien, for example, then it’s really important for them to say that they had no other options when the time comes to be deposed or testify,” said Schneider.
Related Article: How Atlanta Personal Injury Attorneys Benefit from Referral Partners
Need Help Navigating Complex Personal Injury Case Management in Georgia? Let Our Team Help Your Team.
Successfully managing the medical aspect of a personal injury case requires experience, attention to detail, and a willingness to see a case through to trial. It’s about building a solid foundation and avoiding the many pitfalls that can arise. If you have a complex personal injury case with high-value damages, we can assist. Schneider Williamson is a trusted referral partner for law firms across Georgia, providing the expertise necessary to secure the best possible outcome for your client.
“There are so many minefields and ways to blow up a perfectly good case that you might not be aware of, so you really want to manage and massage this case to avoid that happening. These are all lessons we have learned litigating thousands of cases,” said Williamson.
We work in tandem with our referral partners and are committed to keeping you informed with regular updates as we handle the litigation. Contact us to learn how we can help each other by building a strategic referral partnership in Georgia.
