Doctors are increasingly facing situations where either the patient or their legal counsel is delaying or deliberately avoiding payment for ongoing treatment charges. This often occurs when the patient is receiving extended care and insurance benefits have been exhausted or their attorney diverts medical payment benefits of an automobile policy to other parties besides the treating chiropractor. (A Blog on this type of action by attorneys was previously presented on March 19, 2013) In these type of situations, there is one reliable option available to the doctor which should be considered to insure future payment for services.
If the doctor did not already have the patient sign a “doctor’s lien” (As legally recognized in Wisconsin as an “assignment of benefits”) it is time to consider a LETTER OF PROTECTION. While the “doctor’s lien” generally has greater legal impact by entitling the holder/chiropractor to activity participate in any litigation and retain an assigned benefit to a portion of the patient’s monetary recovery; a letter of protection (hereinafter, the “Letter”) basically creates an unsecured promise from the patient or their attorney to receive some amount from the eventual recovery in full or partial satisfaction of outstanding treatment charges. In effect, the letter or protection becomes a promise to make payment on an outstanding debt at some unknown time in the future. If the Letter is not followed, it can be enforced against the patient through litigation for “breach of an oral contract” or the subject of a disciplinary complaint against the legal representative.
The exact language contained in the letter of protection is largely open for negotiations and will have a significant impact upon the enforceable of the Letter. Listed below are key terms to both consider as including and excluding from an enforceable Letter of Protection in this state:
INCLUDE:
- Accurate identity of doctor/clinic to be paid.
- Patient and/or Attorney signatures with language that the terms extend “to the patient’s estate, personal representatives, heirs and assigns”; as well as, “any future attorney/law firm who may become involved in the claim.”
- Recognition of the “consideration” being given by the doctor for receiving the Letter. Examples would include: Access to patient reports and records, extended time to pay for services, and decision not to file collection proceedings.
- Scope of the Letter. This should include an express written promise to pay for specifically identified patient charges from a specified source of anticipated recovery. All these details should be carefully described in the Letter.
- Obligations. The Letter can require the patient to forward it to their attorneys and for the lawyer to promise to keep the doctor advised of the time of any recovery and share the contents of the Letter with the insurance company making that ultimate payment on behalf of the patient.
- Future legal rights of the Doctor. The Letter should indicate that the doctor retains all rights to recovery if the Letter is not followed and that the statute of limitations on litigation is not accruing while the doctor awaits compliance with the Letter.
EXCLUDE/AVOID:
- Vagueness as to what amount will be eventually paid to the doctor. Attorneys may attempt to state that only “reasonable and necessary charges” will be paid or utilize language such as, “payment will be made to the extent that the patient has been made whole in the recovery”. The “wholeness” doctrine of recovery in this state is not specifically defined and open for evaluation.
- Indefinite time or notice of recovery. Attorneys may not be specific as to when they need to notify the doctor of a recovery.
- Inappropriate reference to the “priority” to which the doctor will be paid. Attorneys may try to indicate the other providers or expenses must be paid first or ahead of the outstanding chiropractic charges. Alternatively, the Letter may state that the patient gets to ultimately decide which providers are paid and in which amounts.
As mentioned earlier, the terms of the Letter may not always be mutually agreed upon or the patient/legal representative and there can be a protracted period of time when payments are not made for patient care. This is where the “…or Else” part of the title to this blog comes into effect. Under current administrative law in this State, the doctor should have the right to discontinue care of the patient if a satisfactory letter of protection is not provided. A doctor, like any other service provider, has a right to a reasonable expectation of payment for services. As with any course of discontinued care by a health care provider, the doctor should be sympathetic to the patient’s concerns and carefully document the reason(s) for discontinuing care in the patient’s file. Also, a doctor is encouraged to provide the patient with the name of alternative providers who can address the patient’s care needs.
COMMUNITY.