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Handling the Issue of Attorney Referred Doctors Who Treat on Lien

The reality of medical care in this country is that many people cannot afford it. If the client of a personal injury lawyer Newport Beach CA trusts has no insurance, the only effective way to get the client the treatment or surgery that he or she needs is with doctors who are willing to treat the client on a lien and receive payment from the outcome of the case.

The necessity of lien doctors provides both blessing and curse. It is of course a blessing because it allows people who would otherwise have no access to healthcare an opportunity to achieve top notch care without having to pay for it upfront. In turn, this is also a curse because it allows the defense an opportunity to forward an “attorney driven treatment” model of attack by suggesting that somehow the doctor and lawyers are in cahoots and are attempting to have the client undergo unnecessary care for purposes of artificially increasing the value of the case. It is not helpful, that in some cases involving unscrupulous attorneys, the defense is correct. However, these cases are few and far between and are certainly the exception and not the rule.

So What To Do?

The first thing to do is to file a motion precluding the defense for making such a claim. There is rarely any evidence to support the conclusion that “attorney driven medical care” actually exists and that a particular plaintiff received excessive or inappropriate care. A motion filed prior to trial will, if nothing else, force the defense to demonstrate what evidence they have in support of their conclusion that something inappropriate was going on because the plaintiff was referred to a doctor by an attorney or treated on a lien basis.

Use The Defense Law Against It.

In nearly all jurisdictions, the powerful Insurance lobby has petitioned the legislature to mandate that in court, the parties are not allowed to mention the word “insurance” at trial. At the urging of the Insurance lobby, the law has created a fiction whereby the jury is supposed to believe that a single plaintiff is suing single defendant and that that defendant did not have auto insurance or that the presence or absence of auto insurance is irrelevant. This was done because the insurance lobby figured that jurors would more readily award larger verdicts knowing that there is insurance coverage as opposed to smaller verdicts if they are fooled into thinking that there is no such coverage available and that an individual defendant will be responsible for the total verdict. This blanket prohibition against the mentioning of insurance, which was a significant sword insurance lobby’s arsenal, can also be used as a shield for the plaintiff in the context of doctors who treat on a lien. As you can see from the below introduction, if you (as a plaintiff’s lawyer) are not allowed to mention that the defendant has insurance, they should not be allowed to exploit the plaintiff’s Insurance choices or lack thereof.

A Sample Introduction To The Issue Is As Follows:

“Mr.Smith received a portion of his treatment on lien for his injuries sustained as a result of the subject incident because he was not receiving optimal care and needed to see healthcare providers in a timely fashion. Mr. Smith anticipates Defense counsel will raise this issue during trial in an effort to paint he or his attorneys as somehow disreputable. Mr. Smith would have a difficult time defending himself by stating the reason(s) he had to go through an attorney to get to a doctor (because he did not have health insurance). As the Court surely knows, any communication with his attorneys (present or past) is privileged, and mention of insurance – whether that be liability, health, or worker’s compensation insurance – is strictly prohibited. Any mention of this issue is irrelevant, prejudicial, and improper character evidence. Accordingly, “attorney referred treatment” and evidence of liens should be excluded.

Here, any mention Mr. Smith was referred to a doctor by an attorney is irrelevant. The issues in this case are negligence, Mr. Smith’s injuries, and damages. There is no allegation the treatment Mr. Smith received was below the standard of care, somehow implicating an attorney or doctor in a scam. In fact, Defendants’ medical expert has no criticism on the treatment received by Mr. Smith and agrees it was reasonable and necessary. Attorney referrals do not have a “tendency to prove or disprove any disputed fact that is of consequence to the determination of the action.” Any mention of this would only be made to inflame the prejudices of the jury. Thus, the Court should preclude it on that basis.”