[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.

An Approach to Follow in Medical Records Discovery

Managing the costs of obtaining, processing, and evaluating medical records is of key importance to controlling the overall costs of a litigated file.   For effective tactical and financial management of obtaining and reviewing medical records, these three things always must be considered:

• the necessity of records being ordered,
• the appropriate billing practices for the process of obtaining the records and
• the proper staffing for the review, summary and evaluation of the records.

Determining The Necessity of Records Being Ordered

So, how broad should the scope be for discovering and acquiring medical records?   Of course, the answer, in large part is, “it depends.” It depends on the nature of the legal claims, the type of injury or medical issues, the medical history, etc.

The scope of discovery needed for acquiring medical records also depends in large part on the basic litigation objective. For example, a case being prepared for trial from inception may require more discovery than a case being developed in a more focused way to gather just enough additional information for the adjuster to make an appropriate evaluation to make an offer of settlement or to get the case to mediation.

Regardless of the strategy or scope of discovery chosen to meet a litigation objective, there remains a need to balance the chosen strategy with appropriate financial controls.  For example, in the situation where it is agreed that the adjuster needs only certain medical records to evaluate and settle the case, shouldn’t obtaining these specific  records comprise the scope of the initial discovery requests?  The “no stone left unturned” strategy is not necessary in those types of situations.  As an example, if an x-ray report is contained in the records of the treating doctor, do the records of the radiologist really need to be subpoenaed?  In fact, most of the time I find that the claimant’s treating doctor or primary care physician already has all of the claimant’s other medical records.

Of course, as with any business plan, a scope of discovery plan is not etched in stone.  Thus, as a case progresses, there should be a continuing conversation about the need and purpose for varying from the agreed to discovery plan including the need to obtain additional medical records.  In other words, acquiring additional medical records should not be considered as an automatic thing for the attorney (or the attorney’s paralegal) to always do in all cases.

In any event, whether a specific litigation objective or formal scope of discovery plan has been set out or not, the appropriate approach to determining which medical records to order should always involve discussion and agreement with the defense counsel.  This approach is always preferable to giving counsel carte blanche to order and review and evaluate all medical records.  Following this approach in all cases will limit retrieving unnecessary records and will lead to better overall control of litigation costs.

In my next blog piece, I will discuss the second step for controlling the litigation costs of obtaining medical records.  In particular, I will discuss overbilling in the routine and form driven process of ordering medical records.