5/18/2016

Referral Services and Admissibility

After an automobile accident occurs, beware of the attorney or health care provider referral system that offers a “free exam.”

By Tracy B. Selis

After an automobile accident occurs, beware of the attorney or health care provider referral system that offers a “free exam.” Usually, the type of accident that is most susceptible to fraud is low impact with minimal damage.

Following these accidents, the victim or injured party may be solicited by local chiropractors or other health care professionals who encourage a visit to their offices for a free exam. During the office visit, the health care provider refers the victim to an attorney. Sometimes the health care provider not only refers the patient to an attorney, but also gets the attorney on the phone and arranges a consultation. The health care provider often submits a bill to the attorney and recovers a fee based only on a settlement or jury verdict.

The foregoing scenario has led to many recent criminal and civil lawsuits involving insurance fraud where an attorney and a health care professional, usually a chiropractor, conspire to defraud insurance carriers by exaggerating the auto accident injuries of clients and the costs of their medical care. As part of the scheme, the co-conspirators fabricate medical records, prescribe unnecessary pain medication, perform unnecessary treatment, order and bill for diagnostic tests of questionable medical value, and overstate injuries or permanent partial disabilities allegedly caused by the accident.

The question then becomes “In defense of a lawsuit where the accident victim sues the tortfeasor or his insurance carrier for injury and damages, is this attorney or health care provider referral system relevant and admissible?” Under most recent case law, the answer is “yes.”

In Susanu v. Cliche, the Ohio Court of Appeals, 8th District, found a sufficient basis was provided for defense counsel’s inquiries into the pecuniary relationship between the medical center where the plaintiffs sought treatment and the plaintiff’s attorneys. The 8th District observed in its opinion that the plaintiffs could not complain that their expert was subjected to rigorous impeachment for such bias and pecuniary interest in overtreating patients for the sole purpose of inflating medical damages.

The 9th District ruled similarly in Chambers v. Lee, where the plaintiffs filed a pre-trial motion in limine, seeking to exclude all testimony or evidence concerning the fact that they were solicited by chiropractors and attorneys after an accident. The trial court denied the plaintiffs’ motion to the extent the court ultimately allowed evidence to be presented at trial on how the treating chiropractic clinic specifically solicited the plaintiff and how the plaintiff was referred to legal counsel. The trial court granted the motion in part only to the extent that it found evidence concerning the clinic’s general marketing practices and general practice of referring clients to legal counsel to be unduly prejudicial.

In the appeal that followed, the 9th District held that the trial court did not abuse its discretion in permitting the jury to hear how the plaintiffs came to initiate treatment with the clinic and were referred to legal counsel. It did, however, exclude evidence on the general marketing and referral practices of the clinic. Accordingly, the solicitation and referral evidence was deemed relevant and admissible.

The admissibility of this type of solicitation and referral evidence is vital, as it can be used to determine the timeline in which a plaintiff is solicited for treatment and referred to counsel, all establishing bias. This also is relevant, as it may demonstrate unnecessary incurred medical expenses and bias by the health care provider.

Ultimately, courts are allowing this solicitation and referral evidence to be presented at trial. By doing so, a finder of fact is able to look at all the relevant evidence, including evidence of pecuniary interest of the health care provider, attorney, and, of course, the plaintiff.



Tracy B. Selis is an associate attorney with CLM Member Firm Rohrbachers, Cron, Manahan, Trimble & Zimmerman LPA. She is a member of CLM’s Insurance Fraud Committee and can be reached at (419) 248-2600, tselis@rcmtz.com, www.rcmtz.com.

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