Controlling Medical Records Discovery Costs

[Editor’s note:  In my previous post, I noted that all unfocused and broad-based discovery invariably leads to unnecessary direct legal costs as well as indirect costs.  Because of the importance and complexity of this issue, the next few blog posts will delve into the specific types of discovery that can contribute to unnecessary costs.  First up is the topic of medical records discovery which will be covered by my colleague, Don Douglass. Don is a veteran insurance defense attorney with 30+ years of experience.  John Conlon]

          Controlling Medical Records Acquisition & Review Costs

By

Donald D. Douglass

There is no question that obtaining and evaluating medical records is an important part of defending a personal injury lawsuit and other litigated cases with medical issues.  However, there is also no question that not all medical records are necessary to have in all cases.

The Problems with an Unfocused Records Acquisition Strategy

The above point was driven home to me recently upon reviewing several large legal bill invoices submitted by a firm defending a personal injury claim.  I noticed that the paralegal was reviewing all written discovery received and deposition transcripts for the purpose of determining if there were more records (including medical records) to be obtained.  I also noticed that any potential record identified was being requested automatically.  As a result, a substantial number of additional medical records had been ordered – many of which turned out to be duplicates of records already received.

The financial ramifications of ordering so many additional medical records were obvious.  In addition to  the multiple billing entries for letters, notices, waivers, authorizations, subpoenas, phone calls, emails and follow up communications, there also were the actual costs to obtain the additional records from the providers.  And after the records were received, the even more expensive processes of organizing, summarizing, indexing and evaluating were documented in more billing entries. Continue reading

Unfocused and Overly Broad Form Discovery Leads to Unnecessary and Excessive Legal Costs

The one thing I notice in so many files I review that consistently contributes to excessive and unnecessary legal costs is the use of unfocused and overly broad form discovery.   What I so often see when a new file is assigned to a defense counsel with a request for a discovery or litigation plan is the same time worn (form) plan that has been used in previous cases.

In addition to the overbilling which often occurs when attorneys bill  for preparing form discovery as if it were originally prepared, preparing overly broad form discovery also contributes to excessive legal costs in other important ways. For one thing, keep in mind that what attorneys can easily do in a matter of a few minutes by simply pushing a button on their computer and adding in party and venue information may take plaintiffs weeks (or sometimes months) to search for documents or provide appropriate answers.

And the broader the discovery requested, the greater the likelihood for time consuming and expensive discovery disputes or the need for time consuming and costly follow-ups to fill in gaps in discovery responses or to get even more information – so often on marginal or peripheral issues. Then, there is the inevitable direct costs of having the defense attorney (or paralegal) go through all of the form discovery responses. Continue reading