WHAT
MANAGED CARE PLANS NEED TO KNOW ABOUT LAWSUITS
(CONTINUED)
6. SUMMARY OF CLAIMS HISTORY
Because a
significant number of claims may be involved in the litigation, the retrieval and storage
of copies of the claims, the forms used to inform the patient about the benefits provided,
and the benefits checks may be insufficient to properly identify all of the issues present
in the litigation.
A chart
identifying each claim in chronological order, the date of service, the type of service
provided, the name of the provider, the billed amount, the allowed amount, the amount in
benefits paid, the amount paid by the patient, the amount denied by the plan, and the
reason the benefits were denied, should be created and provided to counsel at the earliest
opportunity.
7. LEGAL AND FACTUAL ANALYSIS BY
COUNSEL
Plans
should expect their counsel to provide an initial analysis of the facts of the case, the
relevant legal and factual issues involved, and a description of the efforts needed to
defend the plan in the lawsuit. Plans may ask their counsel for a litigation budget, or
estimate of the costs of defending the plan from the lawsuit.
Plans are
entitled to itemized monthly invoices of legal services and costs provided. Plans should
be prepared to directly pay for costs forwarded to the plan for payment.
Plans must
expect their counsel to retain consultants who may provide expert testimony on medical and
managed care issues. Plans can assist their counsel by recommending the names of potential
expert witnesses who can testify regarding various factual issues in the case. Plans
should be warned that retaining consultants can be an expensive proposition.
8. PRE-TRIAL DISCOVERY
As the
litigation commences, legal counsel will want to interview those individuals who may be
potential witnesses in the lawsuit.
Answers to
interrogatory questions propounded by the opposing party concerning the plan and the
issues in the lawsuit may need to be answered by the plan. Such answers will need to be
verified in writing as being true and correct by a responsible employee of the plan.
Employees
of the plan may be asked to give a deposition. Counsel will prepare those individuals for
deposition a week or two before the deposition by explaining what happens in a deposition,
and by discussing the case and the witness’ involvement in the facts of the case. One
of the primary purposes of the meeting is to fully discuss the facts of the case so that
every answer given in the deposition has already been discussed between the witness and
the attorney. The meeting should occur shortly before the deposition for the witnesses
benefits, but should not occur too soon before the deposition in the event additional
research by the plan or its attorneys needs to be accomplished before the deposition takes
place.
Parties to
a lawsuit have the right to a jury trial in state court. Plans should expect, and indeed,
welcome, the opportunity to defend themselves before juries except in specific limited
situations.
When the
case is being scheduled for trial, employees who are potential witnesses should advise
counsel of any scheduling conflicts such as multi-day vacations or conferences that would
seriously impair the ability of counsel to present those witnesses to the jury.
9. SETTLEMENT NEGOTIATIONS
The court
may require the parties to engage in informal or formal settlement negotiations. Plans
should expect their counsel to fully and objectively advise them as to the strengths and
weaknesses of their defense, as well as the anticipated costs of defense.
An honest
evaluation of the witnesses for the plan as well as the opposing party should be provided
by counsel since the subjective impressions left by witnesses are one of the most critical
pieces of evidence considered by juries.
The plan
may be required to attend a settlement conference in court. Individuals with full
authority to settle cases for the plan are required to attend. Attendance at settlement
conferences only by individuals with limited settlement authority is highly discouraged.
10. THE TRIAL DATE
If a case
is to be tried, employees of the plan may be asked to testify. Because the availability of
a courtroom on the day scheduled for trial cannot be predicted in advance, the trial may
not proceed for several days if at all. Often, the absence of an available courtroom
because of the high volume of cases being handled by the courts results in a continuance
of the trial. Accordingly, witnesses for the plan need flexibility in their professional
responsibilities for scheduling purposes.
11. MEDIA COVERAGE
A strategy
for dealing with media inquiries needs to be created early in the litigation in the event
the issues in the lawsuit are deemed newsworthy. Plans should strongly consider working
with the media to inform the public and potential jurors of the advantages of managed
care.
12. CONCLUSION
Managed
care plans need to expend sufficient time and resources into defending themselves in
litigation. They need to retain attorneys who are experienced in both health insurance
coverage litigation as well as medical malpractice defense, and have actual jury trial
experience. By presenting a well-considered and coordinated defense with legal counsel,
managed care plans can maximize their chances of a successful disposition of the lawsuit.
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