[Editor’s note. As noted in prior posts, due to the high direct and indirect costs of unfocused and overly broad discovery, I have decided to examine in depth the various issues that most contribute to unnecessary and excessive discovery costs. One of the most costly of discovery costs is the costs associated with medical records acquisition and review. Below is the third piece on this issue by my colleague, Don Douglass, on the issue of medical records review and evaluation and management of the medical records documents. Don is an experienced reviewer/auditor of legal bills and is a former insurance defense lawyer with over 30 years of experience. John Conlon]
Controlling Medical Records Acquisition & Review Costs
Donald D. Douglass
In two previous blog posts, I discussed the importance of controlling the litigation expense of obtaining and reviewing medical records. I identified three things to consider for effective financial management: 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.
In my first two posts on this subject, I addressed managing the necessity of the records being ordered and the appropriate billing procedures for the routine and form driven process of ordering records. (See previous two blog posts below.) This post addresses the third and final consideration: proper staffing for medical records reviews, evaluations, and document management.
There is no question that once the medical records are received by counsel, the most important cost control factor is the proper staffing of the review, summary, evaluation and document management of these records. Therefore, it is vital to examine the firm’s system for handling medical records to determine if the appropriate level of staff (i.e., attorney, paralegal, or clerical assistant) has been assigned to handle each of the distinct steps involved in the process.
Medical Records Reviews & Evaluations
Many attorneys argue that only attorneys have the skill to do the medial records reviews. While that may be true in some very limited situations for some medical records, it certainly can never be true for all medical records in all situations. In fact it should go without saying that it is never true in the situation where the attorney doing the medical records review is a junior attorney with very limited medical evaluation experience and the paralegal is a skilled paralegal who has years of experience reviewing medical records.
Similarly, it also should be recognized that whenever there are large volumes of records to be reviewed, it is never efficient nor cost effective for an attorney to spend hours and hours reviewing and summarizing the medical records. In most all situations, appropriately trained and experienced paralegals can more efficiently and cost effectively organize and summarize the records, highlight the important treatments and supporting documents, and sort out the duplicated and unrelated documents. Based upon the paralegal’s work, the attorney then will be able to more efficiently and cost effectively focus in on the records that actually need the attorney’s review and evaluation.
Fortunately, most attorneys recognize that a well-trained and supervised paralegal is fully qualified to do and should do the initial review and summary of records. Where attorneys push back on this and claim that only they are capable of doing the medical records reviews, it may be that they are correct, but for the wrong reason.
When attorneys argue that their paralegals are not capable of performing medical records reviews, it is more likely than not that they are using paralegals who are not really qualified to be true paralegals. (Remember, anyone can call themselves a paralegal!) If this is so, this should be cause for further investigation. For if an attorney’s paralegals are not qualified to do medical records reviews, then it is very likely they are not qualified to do other types of paralegal work which means that the attorney will wind up billing for tasks that could have been done by a competent paralegal. And I have found in such situations that the paralegals are just being used as legal secretaries to do clerical tasks.
Management of Medical Records Documents
The third step in the process is the management of the medical records documents. It is important to recognize this step as a distinct step in that the tasks involved with the management of medical records documents are clerical in nature. This reason this distinction is important to make is because clerical tasks are considered overhead expenses and not billable.
An example of a document management task is the initial receipt of the records. This task is often billed by a paralegal as a “review of records” at from .1 to .3 hours when, in fact, the task is simply the physical act of matching the received records to the appropriate file for later review. This is a task that a non-billing clerk or legal secretary can easily do. Hence, it is always a clerical task and not billable. Other clerical tasks that might be improperly billed by a paralegal could be things like copying the medical records or physically creating file folders to store the records.
In reviewing entries for records review or any other types of reviews, keep in mind that attorneys (and paralegals) will often embellish time entries and try to make them into something more than they actually are. See, e.g., Metro Data Systems, Inc. v. Durango Systems, Inc., 597 S. Supp. 244 (D. Ariz. 1984)(Court finding that in most instances, “review” appears to be merely a synonym for “read,” a less impressive term.). Using impressive terminology is just one way that many law firms have learned to fly “under the radar” of detection of e-billing systems. So, minimum time entries (e.g., .1 to .3 hour) by a paralegal for “review” of medical records should be closely examined as they may actually be for the clerical task of just reading who the records are from and dropping them to the proper file for later review and summary.
Because of the large expense often associated with all steps in the acquisition, review, evaluation, and document management of medical records, it is best that clear expectations be set in billing guidelines about the difference between attorneys, paralegal, and clerical tasks that are involved in each step of the process. But even without clear billing guidelines on the subject, well settled case law precludes attorneys from billing time for tasks that could have been done by a lower billing paralegal and for paralegals from billing for tasks that could be done by a non-billing legal secretary or clerk. See Klimbach v. Spherion Corp., 467 F.Supp.2d 232, 332 (“[A]ny tasks performed by an associate that could have been performed by a paralegal will be charged at the [paralegal] hourly rate.”); Missouri v. Jenkins, 491 U.S. 275 (1989)(“[P]urely clerical or secretarial tasks should not be billed . . . regardless of who performs them.”).
In conclusion, costs for obtaining and for reviewing and evaluating medical records are often the most expensive part of the discovery in litigation involving personal injury claims. To prevent overbilling in this area, it is vital to carefully manage all steps involved in the process.