From start to finish in a Texas medical malpractice case, it’s important to the bottom line for plaintiffs (patients) and their lawyers to have comprehensive knowledge of past medical bills and how they were paid.
Here are three reasons why this is a subject that deserves careful attention.
First, tort reform doesn’t cap economic damages, including past medical bills that were paid or that are still legally owed. In some serious medical malpractice cases, this can amount to hundreds of thousands of dollars. To get the maximum possible settlement or jury verdict, a plaintiff needs to prove the total cost of past medical bills.
Second, under a new law applicable to cases filed after September 1, 2019, there’s an unreasonably quick deadline affecting how a plaintiff can prove past medical bills. Texas Civil Practice and Remedies Code Section 18.001 allows using an affidavit to prove up past medical bills, rather than calling an expert witness at trial or by deposition.
Using the affidavit method is more cost effective and efficient, but in most cases Section 18.001 now requires plaintiffs to serve billing affidavits 90 days after the date the defendant files an answer in the lawsuit. Some hospitals and doctors are notoriously slow about responding to billing records requests. It’s also not uncommon for billing records custodians to fill out the affidavit wrong, which means law offices have to go back and forth with them to get it right.
When possible, we think the best practice is to start collecting billing records affidavits before filing the suit or at the same time as filing the lawsuit.
Third, it’s a good idea to figure out third-party payers for past medical bills early in the process. Third-party players include Medicare, Medicaid, and health insurance plans.
Medicare and Medicaid, as governmental programs, have an automatic lien that attaches to past medical bills related to medical malpractice. Attorneys are required by law to inform them of medical malpractice claims.
I bet it’s no surprise that Medicare and Medicaid are often glacially slow in responding to requests for information. This includes producing the all-important conditional payment summary that details what medical bills they think are related to the claim and a starting point for how much they think that they should be paid out of a recovery in a medical malpractice claim. By getting the conditional payment summary early, there will be ample time to dispute unrelated charges and get ready for the ultimate negotiation and resolution of the lien once the case is resolved.
Some—or many—ERISA-based employer-provided health insurance plans have a subrogation right to claims from a medical malpractice claim. When a plan provides notice of its subrogation right to a plaintiff/patient or his or her attorney, it triggers an obligation of the attorney to deal with it. Some health insurance plans have strong contractual language and rights. Others do not. Laws in this area are generally very favorable to insurance companies, though.
We follow a similar process to dealing with health insurance subrogation issues as we do with Medicare and Medicaid. It starts by getting a list of the charges that they think are related to the alleged negligence and then whittling that down. It ends with negotiating the lowest possible amount that the insurance company will accept out of a recovery to release its subrogation interest.
Properly handling past medical bills is another reason why it’s important to contact a top-rated, skilled Houston, Texas medical malpractice lawyer for professional advice and services in handling your case.
