Accuracy in bodily injury settlements: The devil is in the details – Part 1

It’s been two years since the date of loss and the plaintiff attorney has been remiss at returning your phone calls and responding to letters, and is ignoring your e-mails. Suddenly, a large demand lands on your desk with nearly $100,000 in medical bills! 

How is this possible? There was hardly any damage to the vehicles, but in your state you are aware that the plaintiff can blackboard all of their medicals if the claim is litigated. What is a claims professional to do?

Too often the answer seems to be an acceptance of the meds at face value with limited negotiation. When asking a fellow adjuster who has a reputation for being a tenacious negotiator how he handles such situations, his response was quite profound, “Common sense.” He specializes in claims where there are questions of causation and relatedness with bills often presented well above $100,000.

[Related: 10 steps to take with every auto bodily injury claim]

He explained there are times where $100,000; $200,000; $300,000 or more in meds are presented and the treatment clearly isn’t related. In some venues the attorney will argue to blackboard the meds, which may garner jury sympathy. But the proper rebuttal is to focus on the facts of the case, including both causation of injury and necessity of treatment. While attorneys may ultimately choose to litigate the case, this is a costly proposition for a highly improbable outcome. Carriers defending such cases have a wide array of tools in their arsenals to fight runaway meds including bill review software, medical coding experts and independent medical examination (IME) doctors who will refute many aspects of a plaintiff’s claim.

Most claims do not go into litigation, let alone reach the courtroom. Plaintiff attorneys generally understand the limitations of their cases just as adjusters do. There is an old adage that people should choose their battles wisely, and that sentiment applies in these cases. There are also a number of steps that adjusters can take to proactively position a case for a settlement that is fair and just.  

Photo: John Roman Images/Shutterstock

12 Steps to the Accurate BI Outcome

1. Police report

While generally considered to be inadmissible in court, this document can be a treasure trove of information that will assist with the investigation. Was there any mention of an injury at the scene? Was the injured party transported to a medical facility? Was there any mention of contributing factors against the claimant? Were any witnesses identified? Did the police respond or was a counter report filed after the fact?

2. Liability

Who is at fault for the accident? Insurance adjusters across the industry assess comparative negligence on just 3-5% of all claims, a vast understatement of what should truly be assessed. In looking at claims that are adjudicated, Jury Verdict Reporter has indicated that more than half of all claims involve facts pointing to shared liability. Leveraging tools such as ClaimIQ can provide adjusters with the critical elements needed to properly identify duties owed and breached.

Photo: TFoxFoto/Shutterstock 

3. Vehicle photographs (auto claims)

Does the damage match? Are there paint transfers? A white car hitting a blue car will not leave a red paint transfer. What is the directional force of impact? Is the damage such that the injury being claimed may be related? In addition, point of impact plays a significant role in the assessment of comparative fault.

4. The accident scene

Are there any other potential tortfeasors? Overgrown bushes, signal outages, missing or blocked signage, absentee third parties and similar factors should always be investigated. Does the movement, as stated by the parties, correspond to what is being visualized?

Photo: Tomek Pa/Shutterstock

5. Emergency room records

What was said to the EMTs at the scene and during transport? What does the ER admission statement say? What type of pain was related to the treating physician? Was there a mention of symptoms other than what may be related to the accident? Is there any indication of drug or alcohol usage that may have contributed to the loss? Is there any indication of pre-existing conditions?

6. Medical treatment patterns.

How soon did treatment begin? Were there gaps in treatment? Was treatment provided on evenings and/or weekends? Were you able to verify treating physician office hours?

Photo: Burlingham/Shutterstock 

 7. Provider type

Was the claimant seen by a chiropractor or medical doctor? If the latter, then what was his or her specialty such as neurology, orthopedics, and the like? What are the medical professional’s credentials? Is his or her license current? Are there any prior or pending disciplinary actions with the current state or in prior states? Can the claimant describe the doctor, medical facility, staff and provide directions from their home and/or work to the facility? 

8. Medical costs, duration and frequency of treatment

When did treatment start? How long did it last? Was it active or passive? Was it longer than an anticipated expected recovery date among the general population for a similar complaint? Was a bill review tool such as Decision Point or Smart Advisor used to price medical bills based upon proper jurisdictional benchmarks? Were there deceptive billing practices such as upcoding, unbundling or modifier abuse?

Photo: Racorn/Shutterstock 

9. Objectivity

 Were there objective findings such as an x-ray, MRI or CT scan? Were the records and films obtained and reviewed by an independent medical expert? Was there any evidence of trauma or were the objective findings pre-existing? 

10. Pain management

Did the doctor prescribe medication to ease the complaints of pain? If so, then what type (analgesics, prescriptions, injections)? Was the use excessive? Were opioids involved? 

Photo: Puwadol Jaturawutthichai/Shutterstock

11. SOAP notes

Does the treatment being provided and billed match the medical providers SOAP (subjective, objective, assessment, plan) notes which can be a great indicator of not only what treatment really occurred, but also a red flag for CPT coding and modifier abuse.

12. Index and priors

Did the claimant have prior claims or injuries? There is a percentage of the population that will abuse the system in an attempt to get compensated for every malady. Adjusters need to do a detailed investigation, including seeking out prior providers, reviewing prior indexes, requesting medical authorizations and reviewing old claims. This can be time consuming, but then again so is panning for gold. Digging deep during investigations is not only a requirement of the job, but it is part of the duty of being a fiduciary for the insured in order to pay only what is owed.

[Related: Auto BI claims costs outpace inflation, even as injury severity declines]

While there may be many additional steps depending on the type and complexity of the investigation, these 12 are designed to provide a roadmap for success. By focusing on the basic fundamentals, leveraging the triad of people, processes and the right technology, insurers will find that they can effectively combat the rise in BI severities.

Part 2 of this two-part series will provide specifics for successfully negotiating a resolution to bodily injury claims.

Christopher Tidball is an a casualty claims consultant and the author of multiple books including the fictional claims thriller Swoop & Squat and the claims process improvement manual Re-Adjusted: 20 Essential Rules to Take Your Claims Organization from Ordinary to Extraordinary. He is an industry veteran serving in a variety of adjusting, management, auditing and leadership roles for multiple top 10 P&C carriers. To learn more please visit www.christidball.com.