Practice Insights

Keeping Difficult Attorneys at Bay in Personal-Injury Cases

Michael Coates

Editor's Note: This is article #1 in a series designed to empower you to take PI cases if you aren't; or achieve better outcomes if you're already doing PI.

Most attorneys are fighters. They feed their families by arguing, maneuvering,and going to battle. For chiropractors, who are healers by nature, this can be unsettling. Chiropractors very often want to throw up their hands and walk away from personal-injury cases, for no other reason than they are frustrated by all the fighting with so many attorneys and their staff.

But the good news is this: When chiropractors understand the law, they can turn personal injury into their best and most profitable segment – and they can do so peacefully, keeping the difficult attorneys at bay and building relationships with the many great attorneys out there.

The Problem: Attorneys Can Mislead You on Applicable Law

All too often, personal-injury attorneys mislead you and their clients (your patients) with respect to applicable law. Misleading statements can come in many forms, and since the law varies from state to state, it's hard to know exactly what the attorneys will try to tell you about the PI and lien laws in your state.

One thing is for certain: No matter what state you are in, many attorneys will try to pull the wool over your eyes. In California, for instance, attorneys often state that the law mandates providers be paid out of only one-third of a settlement on a pro rata (equal percentage) basis. In other words, they pretend like medical providers have to share equal distribution of only one-third of the settlement monies. They even go so far as to cite an actual law, Civil Code Section 3040, to support that contention.

But here is the truth: Pro rata is a myth in California and most other states. Civil Code 3040 applies to health care networks, but it does not apply to you, the individual, non-networked chiropractor.

In most states, the patient owes the full bill regardless of the outcome of the PI litigation. That bears repeating: No matter what happens with your patient's case, the patient owes the full bill (providing, of course, that you bill reasonably and treat properly). When you take personal-injury cases on lien, you are agreeing to wait to be paid on your bill, but you are not agreeing in advance to reduce your bill.

Some states have something called "common fund" or "made-whole doctrines," which essentially require that a patient receive a certain percentage of lawsuit proceedings, usually one-third to one-fourth. But even in those states, the patient usually still owes the full bill.

Sure, the court might direct how the funds from the lawsuit are distributed, but the court does not generally mandate waiver of bill balances. In other words, the patient still owes out of pocket unless you are accepting "full and final" checks you receive.

The Solution: Demonstrate Your Knowledge of the Law

If an attorney ever states that pro rata is the law or that a "common fund" doctrine requires you to reduce the bill, ask for the exact statute and then look it up yourself.

If you are in California, for instance, you might say something like this: "What Civil Code states that medical providers must agree to lien reductions? Since it isn't Civil Code 3040 – which applies to in-network medical providers or health care networks, but not private providers – please point me to the exact statute."
In a "common fund" or "made-whole" state, try this: "What law states that medical providers must agree to lien reductions? Since the common fund /made-whole statutes direct how funds from the lawsuit are distributed, I would like to see the exact statute that says I have to waive the rest of my bill and am not entitled to collect the leftover balance from the patient after the settlement distribution."

When you assert your knowledge of the law, attorneys will very likely pivot and tell you it is "custom and practice" to reduce your bill, as if they decide the customs and practices of your industry and the value of your services! So if an attorney ever states that you are to follow a "custom and practice" within your industry, try saying something like this:

"The custom and practice that you speak of does not exist, and certainly, there is no statute that mandates this supposed custom. I imagine you like to be paid your full attorney's fees. I am no different, other than that I am not on contingency and my payment is not tied to the case outcome. I have no problem waiting to be paid, but bear in mind that waiting costs me time and money due to follow-up and overhead, so reducing the bill as a ‘custom and practice' makes no sense. I can assure you this custom and practice does not exist within my medical specialty and certainly not within my office. I believe in the value of my work, just as you do with respect to your services and staff."

The Long and Short of It

Get familiar with the law in your state so you can address the truth when an attorney seeks to mislead you or your patient. And give yourself permission to be assertive.

Remember: Attorneys are not put off by direct and assertive language. They might be surprised if it comes from you, the healer and provider, but they will not be offended. They deal with pushback on a daily basis by adjusters, defense counsel and others.

Whereas your day might be ruined if you receive a terse email or voicemail, attorneys roll around in litigation mud all day. When you are assertive, yet respectful, you are speaking their language.

And what's even better is this: When you do your job right, billing reasonably and treating properly – and then have the guts to defend your bills and your fees, and stand for what's right, the good attorneys will actually treat you with more respect in the future than if you roll over and capitulate.

If you devalue your bill, you devalue yourself and your staff. The good attorneys won't want to send their clients to you because you can't support your bills at deposition or trial. So by standing up for yourself and for your patient, you give the attorneys something they desperately need: providers who understand personal injury, whose bills are worth what they say they are worth, and who can help them win their cases!

Author's Note: The above does not constitute legal advice; readers should contact the legal, business and financial professionals licensed in their states before implementing new strategies.

July 2022