October 2003

Recent Jury Trial

By Bryan A. Larson

I recently had a jury trial representing one of Dr. Eric Berube's patients.  Judge Robert Hilder afforded the attorneys an opportunity to conduct the jury selection process in a way that most Utah judges do not allow.  Judge Hilder's jury selection process mirrored what is done in most other states.  In selecting this jury, the attorneys were allowed to directly question potential jurors and ask them about their opinions, their feelings and their attitudes.  Among the areas that I asked questions included their attitude toward personal injury cases and what they think about that part of our civil justice system.  Many of the jurors voiced strong opinions that they believed jury verdicts were outrageously high and something needed to be done about them.  Many of them believed that the government should step in and set limits or caps on what juries can award.

Of course, when you look at the actual statistics and understand exactly what juries do, there is a wide gulf between perception and reality.  We have shown and demonstrated in previous BackTalk issues, BIG verdicts are a myth and misperception, which probably inspires juries to continue their financially conservative ways.  The problem is that the media often presents only the outrageous and outlandish sounding verdicts.  When this occurs, it creates the misperception that all verdicts are disproportionately high.  In the many years that I've practiced law in this industry I can tell you that juries rarely come up with an unusually high verdict unless there is evidence that angers them or there is significant injustice they feel needs to be corrected the only way a jury can, through monetary means.  The reality in Utah is that juries are often stingy and in some cases down right cruel.  Nevertheless, the misperception that is molded by the media is exactly the opposite.

A second area where I queried the jury was about their attitude toward chiropractors and chiropractic care in general.  Approximately one-fourth of the jurors voiced a strong opinion that in a personal injury case they would not believe, accept or take the opinion of just a chiropractor alone concerning the medical condition of a patient.  The ones who spoke up voiced opinions they believed medical doctors and their conclusion about injuries, more than chiropractors.  I assured them that in the case they were about to hear, the patient had also seen a medical doctor and that they would hear his conclusion as well (Dr. Wyman).  Many of the jurors seemed relieved at this informa5tion.  Although there were several jurors that have had positive experiences with chiropractors and said so, the fact that 25% had the suspicions outlined above is significant and cannot be overlooked when a personal injury attorney prepares a case for the courtroom.

The most obvious reaction I have to this is that the chiropractic profession needs better public relations.  Of course, so does the legal profession, but that is another story.  The chiropractic profession could surely benefit from an appropriate public relations campaign.  At less expense, and on a one to one basis, chiropractors could probably improve on their individual report of findings for each patient, one patient at a time.  This law firm will continue to do our part, promoting chiropractic generally and advocating the efficacy of chiropractic care and treatment.

I personally believe in chiropractic and do not hesitate to refer the appropriate client to a chiropractor and/or see one myself for personal care and treatment.  However, there is a significant element in society that does not share the same affection for your profession that I do.  My advocacy for the chiropractic profession is strong, but to overlook the bias that exists would be fool-hardy and probably malpractice for my clients.  Consequently, most personal injury attorneys that know what they are doing will suggest and recommend that a medical doctor be involved, at least somewhat, in the medical decision making and care of patients involved in the legal process.  Although it's true that not all cases go to trial, we can't wait until the night before trial to have a medical doctor provide a stamp of approval on the care that the chiropractic physician has rendered.  Medical doctor involvement should begin as early in the process of the care and treatment of the patient as possible when symptoms are most acute.

I realize this us a painful and distasteful concept for some of you.  However, we have had several “pro-chiropractic” medical doctors attend and speak at the seminars we've sponsored over the years.  On occasion, we've had some of them listed and mentioned in this newsletter.  These physicians will not steal your patients.  If you aren't sure who to refer to, give us a call and we'll give you a recommendation or suggestion.  This medical doctor referral should come from the chiropractic physician, for at least a one-time consultation.  This may not be essential if the patient is not involved in a personal injury case.  However, when legal claims are involved do the right thing (and protect your backside as well).  Get a second opinion from a “pro-chiropractic” M.D.

What happened at the trial?  After the jury was selected, Farmers ran up the white flag and offered their full policy limits.  The case was never heard by the jury.

CA Seminar…

The Fundamentals of a Personal Injury Practice

Thursday, December 18, 2003

8:00 a.m. – 1:00 p.m.

At our office on 1218 West South Jordan Parkway (10600 South), Suite B

Cost is $35 per person, which includes handouts, breakfast and lunch.

There is limited space s call Amanda at (801) 446-6464.  Our receipt of your check reserves your spot.

An Associate Chiropractor's Story

By Richard Jaffe, Esq.
Houston, Texas

Let me tell you a story about a young chiropractor I know.  Randy* grew up in a small town in the Midwest.  He had a good (but not extravagant) upbringing, participated in church activities throughout his youth, and was a Boy Scout.

Randy decided to become a chiropractor and west to a highly regarded straight chiropractic school.  After graduation, he found a jobas an associate in a chiropractic clinic in a small city.  After working at the clinic for a year or so, the clinic owner decided to convert to an MD/DC practice.  They did all the necessary paperwork and hired a medical doctor; then they all began practicing under the MD/DC model.

They also purchased diagnostic equipment.  Unfortunately, the clinic owner basically felt the equipment was a license to print money.  For the next few years, all patients received a variety of expensive diagnostic testing, and every patient was treated and billed under the medical doctor's provider number, even though the medical doctor was not full-time and was often not at the clinic when treatments were rendered.  Patient bills averaged many thousands of dollars; however, to keep the patients happy, the clinic did not collect co-payments.

A number of complaints were made to the state chiropractic board about the bills.  Eventually, several insurance companies commenced an investigation, sending in undercover agents to pose as patients.

At this time, Randy provided quality chiropractic care to his patients.  He groused to other employees about what he thought was unnecessary testing.  Other employees felt the same way; some even left because of these problems.  Unbeknownst to him at the time, one of the former employees went to the FBI.

Randy didn't leave the clinic because he had agreed to a multi-year contract that not only contained a stiff financial penalty if he left, but also had a restricted covenant that prohibited him from practicing in the area.  Because of these contractual obligations, Randy felt compelled to continue working at the clinic, besides, he was providing good care to his patients.  Randy was also a little fuzzy about the details of the operation of the MD/DC clinic.  He wasn't involved in insurance billing.  Indeed, he was strongly discouraged, if not barred, from entering the insurance area of the office – but it didn't matter to him, since he didn't sign any insurance claim forms and rarely had any communications with insurance companies.

Eventually, the FBI and other “alphabet” agencies raided the clinic.  On several occasions, without counsel, Randy spoke to seemingly unsympathetic agents about what he perceived to be the problems at the clinic, including the medically unnecessary testing (which, by the way, is now a federal crime).  He even told the agents that he complained to the clinic owner, and that his complaints went unheeded.

The investigation dragged on for several years, and Randy eventually found a better job at another clinic.  When the indictments came, Randy was named as a defendant on multiple counts of insurance fraud.  He was astonished.  He felt he didn't do anything wrong; after all, he had even tried to change the errant practices at the clinic.  Randy decided to fight.

The indictment charged Randy with committing insurance fraud, but he had not signed any claim forms and did not personally provide medically unnecessary services.  If that had been it, the case would have been easy – but he was also charged with “conspiracy” to commit insurance fraud and “aiding and abetting” in the commission of insurance fraud.

The really nasty thing about conspiracy and aiding and abetting is that they do not require a person to actually commit the crime; they only require proof that the person somehow assisted in the commission of the crime.  Under federal conspiracy law, the government need only prove that a defendant entered into an agreement with someone to commit an illegal act, and some act in furtherance of the plan was performed by any member of the conspiracy.  The act performed doesn't even have to be illegal.  Under conspiracy law, a co-conspirator is responsible for all the injury the conspiracy causes or attempts to cause.

Federal aiding and abetting law is similar, in that it allows an attenuated and farfetched theory of guilt.  Essentially, a person can be convicted of “aiding and abetting” if he or she knows someone is engaging in illegal activity and assists with a “purposeful intent” to further the aims of the crime.  (An oft-cited example is that a cab driver can be indicted for conspiracy to commit murder if a passenger tells him he's going to kill someone at the trip destination).

In this case, the clinic's owner clearly engaged in insurance fraud, because he was ordering medically unnecessary testing and billing under the medical doctor's name in questionable circumstances.  But, Randy didn't know anything about the billing when he worked at the clinic.  He also didn't know that to bill under the medical doctor's name, the patient had to see the MD first  (or at least not bill under the MD number until the patient was seen by the MD.)  Basically, Randy was just a young kid with a few years of experience, and just didn't have the knowledge, interest or opportunity to learn about insurance billing at the clinic.  Although Randy was well-represented at trial by a highly regarded, local general criminal attorney, he was convicted on all counts.  Randy has since lost his chiropractic license and will spend the next couple of years in federal prison.

Here are a few lessons from Randy's case:

First, never, ever talk to a federal or state agent without counsel.  These guys are not your friends; their job is to extract information from people, and feigning sympathy or understanding is just one of their tricks of the trade.  Randy is gong to jail in large part because of what he said to the agents.

Second, what you don't know can hurt you.  Randy wasn't (or at least directly) involved in the clinic's insurance fraud, but he knew and did enough to land him in jail.

Third, if you are an associate in an MD/DC practice, or any clinic, it pays to find out whether the clinic is operating on the up-and-up.  If you find out it is not, don't walk – run out the door and worry about financial or possible civil problems later.  The ultimate lesson here is that even if you only receive a modest salary and don't directly participate in any wrongdoing, you are still at risk and may be held criminally responsible for your clinic's wrongdoing.

(Name and some details of the actual case have been changed.)

Dr. Jack Cracker

Too many of Dr. Cracker's colleagues are shipping out whimpy medical reports in hopes of getting paid sufficiently for the good care they provide.  Unfortunately, all too often their medical report lacks a comprehensive DIAGNOSES segment within the body of the report.

Often the doctor may list all 11 of the patient's complaints, and then itemizes only 3 diagnoses in the medical report.  Even a “cub” adjuster will be left with the sometimes-false impression that the treating doctor was not thorough and/or simply isn't listening to the patient.

Far too often medical reports chronicle patient interview and exam findings of persistent blinding post impact headaches, vomiting at the accident scene, vertigo, blurred vision and memory loss, but then the doctor lists the first item in his DIAGNOSES segment as, “1.  Cervical hyperflexion hyperextension strain/sprain”.  Way too many of Dr. Cracker's chiropractic friends inadvertently project on paper that they somehow believe the central nervous system begins somewhere around C4.

Those doctors that are really sharp begin such DIAGNOSES segments with “1.  Bilateral occipital cephalgia associated with numbers 2 and 3.”  On the next line of the DIAGNOSES segment they might appropriately list, “2.  Mild post concussive syndrome associated with number 3.”  Then on DIAGNOSES  line item 3 they write, “3.  Cervical hyperflexion/hyperextension strain/sprain.”

Fall Convention 2003

The UCVPA Fall Convention will be held on November 1 and 2 at the Eccles Conference Center in Ogden.  Once again this law firm is privileged to provide financial support for this gathering, fresh danish and bagels for the Saturday morning break.  We encourage all our readers to attend this annual assembly of Utah's Best doctors.  If you have any questions, call Director Tim Apgood and his capable staff at (801) 281-4100.  We'll see you there.