Miller & Tischler, P.C.
28470 W. 13 Mile Rd. Ste. 300
Farmington Hills, MI 48334
(248) 945-1040
www.millertischler.com
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M&T
No-Fault News
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IN THIS ISSUE
Judicial Developments Part I: Covenant Update
Judicial Developments Part II: Claims Handling and Coding Problems
Verdicts and Settlements
Miller & Tischler, P.C. About Town
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JUDICIAL DEVELOPMENTS PART I: COVENANT UPDATE
Let's start with the "Covenant" case. All should know by now that the Michigan Supreme Court ruled last May in Covenant v State Farm that service providers have no right to directly sue No-Fault insurers. The Supreme Court has left one major avenue for us to bring our claims: assignments. That is, service providers may obtain assignments from injured people of their right to sue No-Fault insurers. Under ยง3143 of the No-Fault Law, assignments of rights to benefits payable in the future are void. Therefore, it is advisable to seek assignments only after treatment. Over the past year, we have endured several major problems in the use of such assignments:
1. Obtaining assignments from injured people. Once treatment is done and patients discharged, it may be difficult to find patients and obtain their cooperation. We have incurred significant expense for investigators to track down and obtain assignments from former patients.
PRACTICE POINTER: Obtain assignments from patients after treatment but before discharge. Or, obtain assignments periodically, i.e., after some treatment so at least we will have valid assignments for that portion of the treatment.
2. Obstruction by the injured person's attorney. If the patient has retained an attorney, that attorney may seek to prevent the patient from signing an assignment. I regret to say that many attorneys seek a fee for the assignment. Some attorneys demand a fee even where we confirm that our provider will not sue their patient. This exposes their client to direct financial responsibility and may be grievable. Nevertheless, it happens all the time. It was not a problem before Covenant but is a big problem now.
PRACTICE POINTER: Have your initial financial responsibility documents make clear that "Patient acknowledges that they are not empowered to retain independent counsel to collect service provider's charges or to otherwise impede collection of charges from insurance payors unless service provider explicitly consents to such retention." This will help obtain assignments, but will also help protect providers from efforts by attorneys to interfere with the insurance payment process.
3. Insurance anti-assignment clauses. One of the biggest problems that we've experienced in the year since Covenant has been the insurer's use of anti-assignment clauses. Many judges felt that these anti-assignment clauses negated the assignments. In such cases, providers are left with little to protect and collect their charges except to sit back and hope that the patient's litigation is successful. GOOD
NEWS:
On Tuesday May 8th, the Court of Appeals issued its decision in Shah et al v State Farm. This is a published decision, meaning that it is precedential. All 3 judges on the panel held that anti-assignment clauses are invalid to bar assignments. (The majority issued other holdings that are troubling). But this main holding is terrific news. Subject to reversal by the Supreme Court, this ruling confirms our ability t
o bring our cases on the basis of assignment. Though nowhere near as efficient as our right to direct litigation before Covenant, this is a big relief.
Here is the form assignment that we currently recommend. Our form has evolved over time due to experience gained from various court decisions:
"I, ____________________ (patient), do hereby assign to ________ (provider) my right to collect (including the right to sue for) No-Fault insurance benefits and penalties (including No-Fault penalty interest and attorney fees, case evaluation sanctions, and all other penalties available under Michigan law and court rule), for unpaid services rendered by __________ (provider) to date, to _______________ (patient). This is an assignment for services already rendered only; this is not an assignment of benefits for services rendered in the future or after the date of this document. Patient agrees that as consideration for this assignment, Provider assumes the burden, otherwise born by the Patient, to pursue payment for services rendered by Provider, from the insurance company or payor entity responsible to pay for such services. This assignment shall be irrevocable unless terminated by mutual agreement of Patient and Provider in writing."
Patient/Guardian Signature: ___________________. Date: _______________
Witness Signature: __________________. Date: _______________
The signature should be notarized if possible.
JUDICIAL DEVELOPMENTS PART II: CLAIMS HANDLING AND CODING PROBLEMS
We have been hearing numerous complaints in recent months of insurers delaying/denying claims based on disagreement over the coding used in provider billings. We are not sure of the source of this new tactic; some say that the MCCA has directed that their insurers impose a more draconian interpretation of coding requirements. Whatever the source, the result is that insurers delay payment while demanding the use of different codes than have been customary for the provider. For example, one provider was told that
unspecified CPT codes, i.e. 99199 (other medicine services and procedures) or 97799 (other PMR service or procedure) could no longer be used, and that any charges with these codes will be rejected for payment
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It is perhaps understandable that the No-Fault insurers would like to impose a coding system that comports with those used by their own reviewers. However, it is vital to understand that the No-Fault Law does not require the use of any coding system. Rather, the No-Fault Law requires that bills be submitted with "reasonable proof of the fact and amount of loss." Period. Thus, the insurers have no basis to demand that any particular form or coding methodology be used.
PRACTICE POINTER: Nevertheless, it is always cheaper to try to work and reason with No-Fault insurers. It is always more expensive to litigate. One suggestion that might be worth trying out is to complain to the Department of Insurance and Financial Services (DIFS). Though DIFS has historically been a rather weak regulator of the insurance industry, this latest insurer coding gambit may justifiably move DIFS to action. To complain, please access this site:
CHILD "DART OUT" CASES.
A common but terrible injury scenario occurs where inattentive drivers fail to anticipate impulsive actions of children. Defense attorneys denigrate these cases by blaming the victim and calling these "dart out" cases. The cases are difficult because drivers and witnesses alike often say that "nothing could have been done." The law, however, promotes safety by requiring an elevated level of vigilance. The law requires that drivers anticipate these impulsive actions of children, particularly in areas like school zones where many safety signs are in place. We have successfully handled a number of these over the last couple of years. In one such case involving a 14 year old who ran across a big highway at night time, we were able to obtain a $75,000 settlement. In another, a 13 year old girl entered a street in front of her school as the school was letting out. She was hit by a driver who admitted that he "didn't expect that she would run in front of him." That's exactly what the law requires our drivers to do. That case settled for $300,000. M&T recently handled another case involving a 12 year old girl crossing a busy street in a residential neighborhood who suffered a traumatic brain injury after being struck by a car. Liability was hotly contested and the police refused to issue a citation to the striking driver. Despite this, M&T obtained a substantial confidential settlement for the client.
CLAIMS FOR BARRIER FREE HOME ACCOMMODATIONS
. These cases are difficult because they are typically the largest single expense that No-Fault insurers face for catastrophic losses after the acute
hospitalization. Moreover, injured claimants can seldom pay for these accommodations without and in advance of insurance participation. Therefore, it is rare to start the penalty clock running. Insurers often delay until trial or otherwise beat down claimants to accept far less than what they need. We have handled many such cases. In one recent case, the No-Fault insurer hired an out of state contractor to opine that our client only needed $95,000 in modifications, which could be done within the current footprint of the house. Our client's team was of the opinion that suitable accommodations would require $275,000 with an addition to the home. We submitted the case to arbitration and presented our proofs to the panel. We had the Occupational Therapist, Architect and Contractor all testify. The panel was convinced and ordered an additional $165,000 to be paid (on top of the $95,000 that the insurer paid based on their own
consultant).
AGGRESSIVE USE OF PENALTIES IN NO-FAULT LITIGATION. NF insurers often violate the law in many ways and are unreasonable in claims handling. Although not easy to get, NF penalties (interest and attorney fees) exist to punish these poor claims handling practices. We are always looking to exact these penalties so as to minimize the cost of litigation to our clients and to (hopefully) promote better claims handling practices. In one recent case, M&T obtained a settlement of $407,000 for hospital charges that were delayed without reason. $62,000 of this award was for NF penalties. In another recent case, M&T obtained a settlement for $413,000, $43,000 of which was for NF penalties.
UNLAWFUL TAKING DEFENSES BY INSURERS, M&T recently settled a case for $853,000 on behalf of a minor who was catastrophically injured. The vehicle was taken by the owner's 15 year old son in the middle of the night. He went on to pick up two other minors, including our client. Our client was a backseat passenger who was ejected from the vehicle when the driver struck a utility pole at a high rate of speed. The vehicle was uninsured and entitlement to benefits through assigned claims was hotly contested. As a result of thorough and aggressive discovery,
M&T overcame this defense and established our client's entitlement to lifetime benefits. This highlights an important distinction under the stolen vehicle disqualification where an innocent passenger will not be disqualified from No-Fault benefits.
M&T ABOUT TOWN
- 4/27/18 Milea Vislosky spoke at the ICLE No-Fault Seminar on the Covenant issue
- 4/27/18 Wayne Miller spoke on using neuropsych raw data to cross examine experts and moderated the section on medical legal issues at the ICLE No-Fault Seminar
- 5/17/18 Miller & Tischler sponsored the RIM Symposium
- 6/8/18 Wayne Miller and Maureen Kinsella will both be speaking at the BIAM Legal Conference
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Miller & Tischler congratulates our newest attorneys, Brooke N. Mathis and Justin L. Rostker on passing the bar exam.
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| About Our Law Firm
Miller & Tischler, P.C., represents survivors of catastrophic brain and spinal injuries, their families and their professional service providers who are having difficulty pursuing their entitlement to receive No-Fault benefits for injuries sustained in motor vehicle accidents. We help our clients understand how their No-Fault insurance may coordinate with other kinds of insurances they have whether it be private health insurance, Medicaid, Medicare, Workers' Compensation, or Veterans benefits. We assist our clients in learning about and obtaining all of the benefits to which they are entitled, whether they be individuals or service providers. We also represent our clients with their auto negligence and wrongful death claims. In other words, we are a full service auto No-Fault law firm.
Let Us Help You.
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