Academy of Chiropractic
Quickie Podcast 1291
Compliance and Insurance 66 CA
Preamble: Many of the issues I bring to you are very small, yet each issue is just that, an issue. If you take care of the small issues, then you will be able to build and more importantly, focus on the bigger issues...a larger practice and more family time. -Mark Studin 2006
Preventing Legal Allegations of Pre-Determined Care
Dr. Studin: we had chatted, previously, and you were talking about ensuring that your documents were good, but your concern that no matter what you document, you're still going to be, at the whim of the carrier for predetermined treatment plan. So they get that correctly.
Guest: Yeah. What I've seen is that, you know, with the predetermined care, they're going to say, I mean, I've seen cases where they start off the low damage, low speed impacts the whole miss thing, and that sets up everything else after that. So now the initial eval is fraud because it was over overbuild over, over coated. And then everything that follows after that is fraud, because there should only be minor injuries and so on. And the whole predetermined care is another can of worms.
Dr. Studin: Well, let's handle the second component before we handle the first component. Let's talk about pre-determined care. Have you seen any lawsuits, have you read any that you have? I'm just curious.
Guest: I haven't seen not on the predetermined care side.
Dr. Studin: Okay. Okay. So yeah, I've actually, I've seen a bunch and I work with the attorneys from state farm and Geico, who actually commented that those were, um, it's been very successful for them, so they're not giving up on them. So what we've done and this conversation is a tiny bit premature because this is July and the articles are not coming out until September and October regarding predetermined care. We realized that that's an issue. So there cannot be a legal solution because you have to litigate every case. And once you start litigating, even if you've won, you've lost, you can't have an organizational solution, meaning your state organization, or even the national organizations, because truthfully the national organizations specifically, the ACA is part of the problem. So what we've done to help combat that is, I've created from, and the cool part is that I'm involved in academia. So we've created a team of academicians where we've put together a protocol standard by saying that X, Y and Z treatment plan is used is actually being taught in chiropractic colleges right now. So the last one that I read said that a chiropractic adjustment, traction, and strengthening exercises on 92% of the patients where that pattern over eight, that was a six year period of time shows predetermined care, which is absurd. I mean, when you, from an initial evaluation, they're saying it's not customized. So when I spoke to the clinic directors of the chiropractic college, and I spoke to a few, it's like, that's absurd because that is an appropriate place to start. And then in your evaluation is where you alter that care, change your treatment plan. From there, you have to start somewhere. It's kind of like saying to the neurosurgeon, well, every time you have a patient with a brain tumor, a hundred percent of the time you do brain surgery to remove that tumor well, that's predetermined care. That's a protocol and that's in the public interest. So if the carrier is saying that's predetermined care, it's going to create a public health risk by leveraging from a legal perspective, based upon deceptive rhetoric, to get doctors to change that when in fact that's an appropriate place to start, and we're going to say that from the academic pulpit of what's being taught in professional schools right now, not some more, you're trying to win a case and make money. And we're looking to take that issue off the table as a result. Now, would that, from your perspective, be enough to resolve that issue, to give you even a level of comfort, to know that this is out there, that I'm not feeling the
Guest: Yeah, I think that sounds great.
Dr. Studin: I mean, you know what? It all comes down to Mark. You're fundamental. You can't pay your attorney anymore.
Well, we're trying to prevent those lawsuits from even starting. We want to take that. I mean, you just, you said it before our conversation before this recording, I feel like no matter how good my records are on no matter what I do, I can be sued loose, or I can be sued and, and be innocent until I can't pay my lawyer anymore. Exactly. I mean, if, if I'm adjusting a patient, every single visit is not predetermined care, they're going to say, yeah, you know, you didn't change your treatment plan. Well, that's what I do, right. Well, the other thing is, you know, they also accused the doctor of taking x-rays and not changing his treatment plan because he took x-rays midstream. And the doctor actually lowered his number of visits, lowered his frequency because from a biomechanical perspective, they were getting better and they are saying it didn't change his treatment plan.
Dr. Studin" Cause he did the same thing. Well, it's it, his treatment plan. So these are the things that we are attacking on paper and the journals. Um, and even though it's a trade journal, it that this does not belong in a scientific journal. It just does something. This is not science. It's just putting out, not knock guidelines, but protocols that are consistent with academia and they are indexed journals. Meaning index mean if you go to pub med, or if you go to like Google scholar, you could find them in there because they're in that, which is important. Um, but we're looking to take those issues off the table so that you can practice with a clear head now, um, the low-speed stuff saying that that's fraud. So you have, if you have any cases, um, that, okay. I do have, I do have one, I've seen a few of them. I do have one that's Geico and, it's the pain management doc and I can send it up to you. I've been following it because it's interesting to me, you know, part of the premise is that because they're low speed, minor injuries, everything after is not valid. Uh, and then just recently the defense attorneys tried to enter motions to dismiss and there was other motions, but one of the motions was that, you know, just because it's a low speed doesn't mean there was no injuries. And the judge, I think it was McNulty here in Jersey, uh, had said that the lawsuit can proceed on that, uh, point, uh, in, in particular because it was low speed in there. You know, I don't remember the reasoning about sending it to you. He said that that point could proceed. Yeah. Now we have, um, given a myriad of presentations and articles about low speeds.
Guest: So, um, if you could get me that lawsuit and I'm familiar with the patterns with doctors and they're going after the pain management doctors, cause they're charging 30, $40,000 a procedure,, and they're using anesthesia on every single patient and things like that.
Dr. Studin: Yeah. But low speed is not the arbiter. So what we have to do is we're going to make that particular issue part of our next round of arguments or, or stuff that we're discussing, because it's not about the speed because it's about energy transferences, which gets into a spinal biomechanical engineering, the physics. But I need to see that so we can address that as well. And I will. So where by the end of the year, and it's a process, I know everybody wants it yesterday, but I mean, this is all I've been doing for the past few weeks. I mean, all, that's it, I'm just handling this stuff and it's very, you know, very time consuming.
Guest:I want to address, I know you're not an attorney, but from, I know you were talking about the state and federal level and the organizations there's no cause here for bad faith from the carriers to be doing this like this,
Dr. Studin: I can't answer that question at any level. , I have no idea. ou need, I guess it's a corporate lawyer to answer those questions. So if you, if you want to look for a corporate lawyer, you know, that you want to retain to do that, I have a corporate lawyer, but I could suggest to, um, well, I don't have any issues myself, but you know, of course this all seems like a ticking time bomb, but I'm just wondering on a larger level, because you're involved with this on a much larger scale than any of us. That's why I'm not looking at any level to get involved in litigation because I don't think litigation is the solution. That's going to be a five to 10 year battle, um, which is going to hinge on a jury. And then once that jury approves it, then it's going to go to the appellate division. And then when that fails, it's going to go all the way up to in New Jersey, the Supreme court in New York, the court of appeals and other States, their highest courts, whatever that is, this is going to be appealed appeal to appeals until it's finally adjudicated. So what I believe that I would like to do is just get rid of the issue at the academic level. And once it's published that this is a protocol at the academic level, then the next thing you know, is, is it doesn't matter. But you're talking about the most be that's feeding into the deceptive intuition that in fact, if there's minimal damage to the car, it's assumed that it can't be any damage to the person.
Guest: So from your point of view, from your point of view, Mark, won't be still ended up being a case by case issue. So if someone sued for 50 cases, even though your research is out there and it's strong, they're still gonna have to go through each of those 50 cases.
Dr. Studin: In this case, the carrier is going to pick a different battle because if they know that this is an academic standard, they know at the end of the day that they're not going to win that case, they're going to try to pick on. They're going to try to pick on a different subject. They're going to try to find something this has been going on from what I understand that very quietly for a decade. So what we need to do is we need to really determine exactly, um, each individual issue. And then see if we can have an academic standard to make it go away. I'd rather be nimble and spend my time on eradicating issue after issue, then picking one issue and spending 10 years in court on it. For me, that makes more sense.
Guest: That's that's right.
Dr. Studin: Choose to put my time and energy because if not, I mean, you know, court cases suck all your energy out. So, you know, I'm going to be nimble. I'm going to keep it very forensic issue, by issue to me, that's the most, that's the most logical way to do it.
Guest: Okay. Yeah. That makes sense.
Dr. Studin I have the ability to do that based upon, you know, where I teach, what I do. Um, you know, I have people that have been on the CCAI people that are clinic directors that teach this stuff. I have deans of colleges. I have backwards. I have a really broader Ray of people to pull from to do this. And I have some very influential people in our profession that are not in politics, not in the ACA, not in the ICA. Those were labor unions, trade organizations, people in licensure positions, in academic positions. These are the things we're looking to pull together so that we can give doctors that peace of mind to practice chiropractic within their lawful scope. That's all it's about how am I practicing within my lawful scope while the carrier has a fraud for profit scheme to try to get that overturned, right. Just so they can make money. So basically that's what we're doing. And if you could think of, if you have any lawsuits, just, just scan them and email to me, if you have any other complaints, um, I'd love to see them cause this way, we'll just take them apart and just see what they're doing and try to make this stuff, uh, you know, as much as we can make it go away quietly, which is my goal.
Guest: Okay. Okay. Wonderful. Thanks Mark.