A call from your patient’s attorney asking for an appointment may push you out of your comfort zone. “What does he (or she) want from me?” you may think. “I sent them my records, what more do they want?”
This article is to answer these and other questions, and to help you see the medical consultation from the attorney’s and the patient/client’s perspective. We hope this will facilitate a consultation which will yield the information needed for your patient’s case with the least imposition on your busy schedule.
Why Is A Medical Consultation Needed?
Although your patient’s attorney has probably obtained all the pertinent medical records from your office, doctors generally do not discuss legal issues like causation in their chart notes. Or, if they do discuss causation, the question may not be framed in the way required by legal cases.
For example, words like “related” and “secondary to” do not satisfy the legal standard for causation in Workers’ Compensation cases which call for a medical opinion on the question of “major cause” or degree of cause relative to pre-existing conditions, injuries or other contributing causes. These and other questions concerning your patient’s injury or condition may need to be spelled out more definitively in terms and for purposes usually not addressed in medical records.
How Can The Consultation Be Done?
There are basically three ways an attorney can consult with a doctor: 1) in person, face-to-face; 2) by telephone; or 3) by sending a letter with specific questions or soliciting a written response. There are advantages and disadvantages to each.
The advantage of a face-to-face consultation is that the attorney and the doctor together can review both the doctor’s records and other documents the attorney may want to show the doctor. The disadvantage is the time involvement. Setting up a specific appointment means the doctor cannot see any patients during that time. It also involves travel time for the attorney.
There are sometimes good reasons for the patient/client to be present at the face-to-face consultation. It is important that a patient have the opportunity to hear his or her doctor’s thoughts focussed on the medical-legal aspect of the case, so the patient can make an informed decision on the course of his case. Some patients may prefer hearing the medical opinion on a legal issue directly from their doctor, rather than hearing it second-hand from the attorney later, especially if there are questions about whether the doctor’s opinion provides the legal proof needed. In such cases, any questions or misunderstandings can be cleared up on the spot, rather than consuming additional time with follow-up.
The telephone consultation has the advantage of flexibility. If the doctor needs to finish with patients or tend to an emergency, it is much easier to work around a phone appointment by calling back, since the attorney has not invested the driving time and is not personally present and waiting at the doctor’s office. The disadvantage is that the attorney and doctor cannot review records and documents together.
After the telephone consultation, the attorney can generate a report and have the doctor sign it. This is easier if done by phone since the attorney can take more notes and have more time to get it done. Taping a face-to-face consultation better insures the accuracy of the report, if the attorney is generating the report.
Consultations by letter also have up and down sides. Some doctors prefer letters since they allow more time and flexibility in coming up with their answers. The disadvantage from the attorney’s perspective is that everything written in a letter becomes part of the record. This may include statements which are not helpful or which are indeed harmful to the case, because the doctor may have chosen a word which carries legal implications the doctor was unaware of and did not intend.
Other disadvantages: Written communications are subject to misunderstanding and misinterpretation since there is no opportunity for the clarification which personal contact provides. Also, if the written answer is not responsive to a specific question or needs clarification or elaboration or the attorney does not understand the answer, then the attorney has to write another letter and the doctor has to write another response.
Could E-Mail Be A Better Way?
These problems may be alleviated by sending questions via e-mail. The doctor could answer at his leisure and an e-mail dialogue could ensue, clarifying questions and resolving misunderstandings without creating a “record.” This offers advantages of face-to-face or telephone consultations in a way more convenient for doctors. If any doctors reading this think this is an idea whose time has come, here’s our e-mail address, we’d love to hear from you: [email protected]
Who Pays For Consultations?
Attorneys are ethically bound to have their clients pay for medical consultations. We have to discuss the costs of the consultation with the client and be sensitive to the client’s ability to pay.
When we discuss the costs, often the client’s response is to want to save money by obtaining the information themselves. From the client/patient’s perspective, this makes sense. Shouldn’t patients be able to ask their own doctors about their medical condition during the course of a doctor’s visit without paying a consultation fee, especially if they cannot afford it?
But this results in not getting good information, since the patient may not fully understand the exact nature of the legal information needed. Also, doctors may interpret such questioning from their patients as an effort on the part of lawyers to save money for themselves, which, as explained above, is not the case. (Checks from law offices paying for consultations ultimately come out of the client’s pocket.)
Attorneys representing injured persons (whether personal injury or Workers’ Compensation cases) generally work on a contingent fee basis, so the lawyer is not paid for the time spent in medical consultations. (The attorney may ultimately recover a fee if successful with the client’s case.) This situation must be contrasted with that of the lawyer representing the insurance company who is “on-the-clock” and getting paid for their time consulting with doctors.
Open Communications Benefit Everyone
Positive, open and efficient lines of communication ultimately benefit the doctor, the attorney and the patient/client, since one of the main purposes of the consultation is always to get the patient’s medical bills paid!
This article was prepared by Robert F. Webber.