Q: Why is it getting more difficult to get opinions from treating physicians?
A: Let’s be honest, it’s never really been easy to get opinions and reports from doctors. If you have been handling medical cases for a while you know that physicians avoid requests from attorneys. There are many reasons for this and most of them haven’t changed much over the years. Recently though, a couple of new wrenches have been thrown into the works that aren’t making it any easier.
Unfamiliarity
The comments that follow primarily refer to personal injury and workers’ compensation cases. Malpractice cases are a different animal, but some of the same issues arise. In my opinion, there are three main reasons that doctors avoid interacting with their patients’ lawyers. The first is being uncomfortable with the legal issues they are asked about. One of the most common issues that comes up is that of legal causation. Doctors are happy to discuss the medical causes of the conditions they treat. They do it all the time, explaining things to patients and their families. Being asked to render an opinion on legal causation, however, can make the physician’s blood pressure rise. With the exception of some in Occupational Medicine and Physiatry, doctors get no education in legal causation. They may feel they are not qualified or are nervous about having to justify or defend their opinion. This can lead to a Catch-22 situation in which the doctors are avoiding the person that is best able to educate them about the legal process and definitions, the patient’s attorney.
A similar attitude can exist regarding issues of disability. I have had lawyers express disappointment or surprise that a treating physician wouldn’t render an opinion on a permanent partial disability rating for workers’ compensation. This is another area that the vast majority of doctors don’t get trained in. Ratings may involve issues of pre-existing conditions and apportionment. Workers’ comp rules differ from state to state, and can include Gillette injuries and Weber rules. All these things are a whole other language to physicians who just want to treat their patients. If it is not a WC case and involves a disability rating using the AMA Guides, that is also a completely foreign world to most doctors. Frankly, I think many doctors feel they are already overtaxed just dealing with the medical, insurance and regulatory problems of treating patients. Learning the ins and outs of disability ratings is something they may have little incentive to do.
Liability
The second big reason physicians avoid lawyers requests is concern about liability exposure. Many people have the perception that any time they have to talk to an attorney it’s a bad thing. Unfortunately, this attitude can be held by physicians as well. The feeling may have been reinforced by past experience. Even being deposed for a relatively straightforward injury case can be an unpleasant experience that they are not in a hurry to repeat, let alone being involved in malpractice litigation. Physicians are conditioned by the doctor-patient relationship and HIPAA laws not discuss their patients’ medical conditions. It can be uncomfortable to disclose details of a patient’s care outside of the medical setting. There may also be some confusion as to what they can and should disclose.
Most doctors practice some degree of defensive medicine and that mindset can affect their willingness give opinions to attorneys. Even though it may be an opinion on a case in which they have no liability, they can be leery of saying anything that can come back to haunt them. Physicians are often counseled not to disclose anything or express opinions without checking with their own attorney. While doing so can delay getting to talk to, or meet with, the treating physician, I don’t think anyone would argue with this advice regarding a malpractice case. Having to check with an attorney before responding to any request is overkill. This brings me to the first new obstacle that you may have encountered.
In years past, you could call the physician’s office, maybe even the physician directly, and ask to talk or set up a meeting. With small private practices going the way of full service gas stations, this is next to impossible now. More and more physicians are employees of hospitals and large healthcare organizations. Your request for a meeting, a report or written answers to questions now go through the bureaucracy of the organization. If you are lucky, that may mean just a couple of clerical assistants or a department manager and scheduling personnel. Sadly, larger organizations are now sending those requests through their legal department before the clinician ever hears about them.
There has been a trend lately to add even more layers to this process. Some organizations and malpractice insurance carriers have begun requiring that an attorney for the physician, or insurance carrier, be present for the meeting. We are not talking just malpractice suits here. This requirement is sometimes being placed on interactions between treating physicians and plaintiff’s attorneys handling personal injury cases and workers’ compensation claims.
Time
The third main reason, in my opinion, is simply time. Doctors have always had a lot of demands on their time. At least in “the Good Old Days”(which now means before EHRs), most of those demands involved the thing that they enjoyed doing, taking care of patients. Now, an ever-increasing amount of time is spent on Electronic Health Records and the myriad of tasks that that entails. Scheduling a meeting, writing a report, or answering a set of questions along with the time it takes to review the patient’s records in order to be able to that adequately gets pushed to the side. Compensating a physician for their time might help somewhat, but a new roadblock has been placed there too. Since many doctors are employees, the fees often go to the employer and not to the doctor doing the work. I honestly believe that the vast majority of physicians want to do what they can to advocate for their patients. I do not believe that not getting the fee for assisting with the legal aspects of a patients’ care is a significant reason that physician avoid these tasks, but it may have a subconscious effect. It certainly doesn’t help.
What can you do?
The hardest part may be getting that initial contact. Once you do, you can do a lot to educate the physician and alleviate fears associated with the process. After a physician has been involved in an injury case or two they will realize that it doesn’t have to be a stressful experience. Appealing to the natural tendency of doctors to advocate for their patients’ health and wellbeing can help as well. Getting them involved early and keeping them updated can make them feel part of the solution, rather than an outsider to the WC or legal system. In almost every case, the treating physician is going to be in the best position to make the correct diagnosis and formulate the appropriate treatment plan. Let them know how their input can help the patient and possibly prevent denials of claims and treatments the patient needs. The more collaborative the process is the better it is for all involved.