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Articles Posted in Litigation Strategies

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Dealing with healthcare providers who seek to “balance bill” in personal injury cases is becoming an increasingly frequent occurrence in our practice. Balance billing is when the medical provider seeks payment for the entire bill, when the patient’s health insurance or HMO does not cover that portion of the bill. The medical provider bills the patient for whatever the insurance company or HMO does not pay.

Maryland Balance Billing Law

Balance billing in Maryland is permissible if it is not limited by law or contract.  But when medical providers agree to accept reimbursement from government health plans, there are often restrictions on the ability of the medical provider to balance bill.  With private medical insurance like most of us have, the insurance company often mandates by contract to protect their insureds by requiring the provider accepting the insurance to accept the insurance company’s payment along with any necessary Co-pays.

For example, your client’s insurance company might pay $4,000 for a particular surgery, but the surgeon charges $5,000. If the surgeon’s office accepts the plan’s payment but then seeks to collect the remaining balance from the client, the surgeon is balance billing the client. The question for the personal injury lawyer who is trying to get as much money as he/she can for their client is can medical providers balance bill from a settlement or judgment of a personal injury claim?

If the provider is Medicare, the answer is no. See 42 U.S.C. 1395(y). In Maryland, medical providers cannot balance bill if an HMO makes payments. See Health General Section 19-710(o); Patel v. Healthplus, Inc., 112 Md. App. 251 (1996).

Regarding other insurance companies, the answer is the provider cannot balance bill. But it depends on the insurance company’s contract with the medical provider. In-network medical providers may not balance bill for covered services under the terms of their contract.

They must accept the amount paid by the plan (plus any member Co-payment and/or coinsurance) as stipulated in their contract. The language of the contract will provide the answer. Medical providers that are out-of-network and do not have an agreement with the insurance company, often hospitals after an emergency room visit, may balance bill.

If you are in an HMO or PPO, the law might protect you beyond your co-pays and deductible, but contracting and non-contracting providers may directly bill an HMO member for a non-covered service. Doctors who accept assignments also may not balance bill in Maryland.

In Maryland, CareFirst Blue Cross Blue Shield provides insurance for many of us.  Ultimately, the doctor’s ability to balance the bill will depend on the specifics of the doctor’s contract with CareFirst.  We have not seen every provider’s contract but it can also depend on whether the health care provider is in or out of the network.  CareFirst is sometimes helpful with these issues if you do not mind spending time on hold.

Dealing with Health Care Providers That Are Balance Billing Your Clients

Four practice pointers for personal injury lawyers:

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Most personal injury lawyers have had more than a few encounters with consumer bankruptcy proceedings.  Personal injury clients frequently file personal bankruptcies.

It is therefore important to know how personal injury claims, settlements, or awards are treated in bankruptcy.  The question everyone wants to know is will the client get to keep some or all of their settlement or judgment?

The short answer is yes – as long the settlement proceeds are compensation for pain and suffering or future lost wages.

In any serious personal injury case in Maryland, you need an expert to testify.  Are there some cases where the injury is so obvious that a medical expert is not required?  There may be.  But anyone willing to take that chance should not be trying tort cases in Maryland.

Why Do We Need an Expert?

An expert has several purposes.  First, with a few exceptions, you want to ask the jury to compensate you for the medical bills that you have incurred, even if they have been paid by medical insurance (because the jury is not told that insurance paid for the medical bills).  Accordingly, you need a medical doctor with experience treating that injury to testify that the medical treatment that the plaintiff received was fair, reasonable, and medically necessary.

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defense attorney tacticsThere are lots of insurance defense lawyers in Maryland that you just cannot figure out why someone would hire them to defend a personal injury case.  They unnecessarily complicate cases, bill hours on things that are completely unrelated to anything that would benefit the defense and, often, juries cannot stand them because there is a positive correlation between someone willing to be this annoying and how annoying they are, according to independent studies that I have conducted.

Why Insurance Companies Hire These Lawyers

The lawyer that fits this profile sometimes gets a lot of work.  Why?  Like any job, insurance adjusters are all kinds of different people.  Democrats and Republicans.  Athletes and bookworms.  Compassionate and mean.  Attractive and not-so-much.  But, disproportionately,  they are tough guys.  They want to wage war in the seas and the valley and talk tough and be tough.  For some of them, the rest of their lives belie this mentality.  But that is a whole different story. Continue reading

soft tissue injury caseThe average verdict in a Maryland auto tort case is around $12,000.

How can this be?  I’ll tell you how it be: attorneys filing cases in Circuit Court that just should not be going in front of a jury.

These are my thoughts after reading about a recent jury verdict in Anne Arundel County.  It was a garden variety auto accident case.  The 21-year-old plaintiff, a college student from Pennsylvania, was driving with his mother in the left lane at a speed of 55 to 60 mph when they got into a collision with another vehicle.   Plaintiff did what a passenger should do in this case where the cause of the crash is in dispute.  He sued both drivers.

workers' compensation personal injury

Do you have both a comp claim and PI case?

Many of our personal injury clients bring both a regular civil claim and a workers’ compensation claim.  Yet we get calls every week from someone who has an otherwise valid tort claim that may not bring that claim because of the workers’ compensation law.

Obviously, two claims are better than one.  This post explains the cases in which you can bring both claims and those you cannot and why. Continue reading

We have rejected several tort cases because Medical Assistance made payments for the victim’s outstanding bills. Why? Because the state refused to significantly reduce (or at all) its lien to account for attorneys’ fees. Sure, DHMH could reduce or waive their lien if it will cause “substantial hardship.” But “substantial hardship” was not defined and I think we had a very different definition than the subrogation folks at Medical Assistance.medical assistance liens

It might sound a little heartless, but it is the exact opposite. The Medical Assistance problem did not affect our attorneys’ fees but had a real impact on how much money the client could recover in the case. If we don’t think we can make the client happy at the end of the case, we will not pursue the claim, regardless of how much money we think we can make on the case.

But things are now a lot better because of new rules that have adopted by the Department of Health and Mental Hygiene and codified as COMAR 10.09.83. Pursuant to these new regulations, the state will now allow for attorneys (I’m not sure about pro se plaintiffs, I need to read it again) to negotiate a reduction in the lien to account for the victims’ legal fees.

Lawyers always argue over anything where there is not black and white set rules. (Actually, we argue when there are set rules, too.)

No one exactly knows the rules of the sequences of discovery because the rules are whatever the motions’ judge says there are. So lawyers take positions on these issues with varying degrees of reasonableness.discovery obligations timing

A new Wisconsin case illustrates this issue. In Dauska v. Green Bay Packaging Inc., the defendant filed a motion for sanctions and to compel the deposition of the Plaintiff who refused to be deposed. Why? Plaintiff’s attorney refused to allow his client’s deposition until he received discovery responses from the Defendant. Plaintiff’s lawyer did not file a motion for a protective order but made it clear his client would not appear for deposition. Continue reading

We should probably have a subsection for cross-examination materials in our Litigation Strategies category. But we have a lot of materials both on the website and on the blog I think are of interest if you are preparing a cross:

  • David Ball on Damages: Cross-Examination of Experts (the “one” thing that – and this is a bold statement – always works when crossing a defense expert)
  • Cross-Examination of Truck Driver (we got $1 million verdict in the case based on this cross)
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