When Your Defense is Your Best Offense
A Blueprint for the Future
From the Desk of Dr. Mark Studin
I haven't slept in 3 days. I have a nasty "summer-cold" courtesy of my 4-year old granddaughter. I keep telling all the grandkids that I don't have "The COVID," it's just a cold. Since I haven't been sleeping, I have extra time to reflect on the last six months during this Pandemic. During that time, I have worked with both my clients and the profession at a high level to help doctors stay healthy, maintain practices, and how to grow when self-isolation and social avoidance is the vogue.
During the Pandemic, I created 16 Webinars that were viewed by 1000's of DC, some instructional on practice suggestions, and others on educating referral sources. The result of the instructional Webinars that were geared both towards educating the doctors and their referral sources far exceeded all of my expectations. Feedback from doctors and lawyers nationally verified my original market research that this was what was, and continues to be needed.
Let's go back for eight months. I had a conversation with a lawyer representing the largest auto carriers in the country, who informed me that they recently increased their RICO division 4-fold. The message was to expect a flurry of Federal lawsuits as a result. My 40-years in this industry, interfacing with insurers at a multitude of levels, tells me the carriers always play the long-game as they have unlimited resources to do so. The increase in lawsuits apparently is integral to that strategy. It is also a brilliant business strategy, one where you be remiss, pollyannish, or just plain stupid to ignore and not learn from it.
The flurry of lawsuits started four weeks ago. Apparently, the carriers had 6-months of self-isolation to craft lawsuits, and they started serving them in early July. Therefore, I have been consumed with reading many of these lawsuits and digesting them to understand their tactics viscerally. Although lawyers are trained as "triers of facts," lawsuits are often a conglomeration of "cherry-picked tidbits" to render the perception intended. In these cases, it is to paint the doctors as greedy criminals, at the core of insurance fraud to help sway the courts in their favor to "score points" with their stock-holders, and customers.
As one lawyer wrote, this is their "fraud for profit" scheme because doctors are easy targets. We spend our lives training on helping the sick, not how to defensively practice, and live in the nuances of every note we write. The carriers have banked on us being great doctors, and have significantly profited at the expense of our patients. With that being said, it does not exonerate any doctor from practicing at the "new standard" of being bulletproof through impeccable documentation. Unfortunately, patient care suffers. As a family member told me yesterday, her beloved doctor of 30 years, where she looked forward to every visit, now spends the entire encounter with his face in a computer. He documents every word, talks to her while typing, and then leaves as this has put him perpetually behind his schedule. This is a common theme in most offices and is a direct result of persistent carrier litigation.
While creating macros to handle the carrier's issues (plausible "spin" for the courts) in creating a bulletproof practice environment for doctors, I consulted many healthcare criminal defense lawyers. These lawyers also wear the hat of personal injury lawyers and shared with me that if the level of documentation I created purely for "defense" was utilized in every plaintiff's case, it would do well for their clients in both in settlement negotiations and in the courtroom. Regardless of the rhetoric shared by those selling Colossus programs, it is not purely a Colossus relationship.
To quote Newton's Third Law: For every action, there is an equal and opposite reaction. The unintended reaction or result of the carrier's legal aggressiveness is for doctors to be forced to get better in articulating causality, and everything related to bodily injury. As a result, if we learn from the carrier's, we get to balance the "playing field" in this "cat and mouse" game of big money.
Therefore, based upon the totality of cases I have read (including some served this week), my focus and recommendations have become more specific. My goal is to “flip the doctor to the offensive” based upon conservative care and unparalleled documentation. First, through a compliance review to ensure you are not committing blatant transgressions that will put you in jeopardy of being sued. Then to add those elements to make you as bulletproof as possible. It is in "bulletproofing" your documentation, that flips you from "defense to offense" in working with the legal community. It is here that sets the lasting foundation for long-term relationships as your documents are enduring material. In short, no matter how long you are gone, your documents will forever be preserved in the records of the lawyers, and lawyers consistently go over previous cases.
I was just retained by three lawyers to write reports for other doctors at $400 per hour because the lawyers saw previous reports I crafted and know how I document injuries and care. That, combined with my credentials, was cause for them to refer patients directly to me, but that is not possible as I do not actively practice.
If you want the secret to unlimited new PI cases, play offense and have the credentials behind you. All that is left is to create a business system to get the lawyers to see you, and that is relatively easy. The secret is not what I just shared with you. The secret is that gimmicks don't work. Having a "Colossus Busting" practice can get you the opposite of what you want; sued. Having MD's in your office is not the secret, as working with an MD down the block will have the same result, an excellent report when clinically indicated and ordered properly. What an MD in your office will get you, is the chance to defend that relationship based upon your pattern or number of "internal referrals." For anyone who disagrees with me; I refer you to the lawsuits where even if you win, you have lost by spending $ 100,000's for criminal defense lawyers and years of sleepless nights. It's too easy to do it conservatively, and right.
Get better at what you do and be guided by the most brilliant business strategist's in our industry; the insurers. If you can't figure it out, call me.