Updated: Nov 26
Innovating Away a Common Personal Injury Case Hiccup By Going “On Lien”
By Survam Patel
Ask any plaintiff personal injury attorney about the most pervasive issues impacting their cases, and you will likely find a common response: how they can recover the total potential value of a plaintiff’s injuries. Regardless of whether they were involved in car accident injuries or severe slip-and-falls, plaintiffs who fail to timely seek out and follow care plans will often confront defense attorneys pursuing arguments alleging injury victims were unable to mitigate their damages — even though in many cases, they didn’t have the tools or capability to. In fact, the more time that has elapsed between the incident and treatment, the less valuable that case becomes.
Failing to address these pain points can usher in a death knell to a victim’s chance of achieving the fullest recovery possible. And it’s why, when I started closely looking into this issue, I realized there is a way to address an injury victim’s transportation needs without stirring up ethical issues for their attorneys. These arrangements would need to be delivered and billed “on lien.”
Applying the “on lien” model to convert case expenses into recoverable damages
Being a licensed pharmacist gave me a front-row seat to the perils and obstacles that plaintiff-side attorneys face when addressing how their clients were receiving and following treatment plans. The most common complaints I received from many of the Texas-based attorneys I knew involve combatting records retrieval delays and struggles around helping and encouraging clients to keep up with their much-needed appointments. Above all, these lawyers asked how they can help simplify the process of receiving medical care for their clients — especially when many of these clients have likely totaled their primary vehicle or are facing financial difficulties following their injuries.
Unfortunately, the law is not sympathetic to a victim’s logistical struggles. All a jury in an automobile accident or personal injury case is instructed to focus on is whether a plaintiff took steps to mitigate their potential damages. Evidence that a plaintiff promptly sought treatment and kept up with their treatment schedule can go a long way toward showing this and recovering close to the fullest amount of their potential damages.
Missing appointments or delaying treatment can take a toll on a personal injury victim’s case. Even one missed appointment can increase the likelihood of attrition by 70%.
Lawyers must refrain from forcing their clients to make their treatment appointments. Wade into this territory, and defense counsel would posture these efforts as the direction of client care. Even if firms did advance funds to their clients to cover their appointment transportation, they could still risk sanctions depending on the jurisdiction —- especially in jurisdictions that strictly enforce their respective versions of ABA Model Rule 1.8. This ethics rule generally prohibits a lawyer from offering financial assistance to a client in connection with pending or contemplated litigation, subject to some exceptions.
It’s through these problems that I sensed a solution started to surface. What if law firms scheduled patient appointment rides with a third-party service provider that billed all physician treatment travel costs under a letter of protection? My team and I were admittedly treading into new territory, as the lawyers we spoke to never before considered treating transportation and medical expenses in this manner. However, the concept of having liens paid off through judgments and settlements is nothing new and par for the course. As we talked to experienced ethics lawyers on the issue, we realized that “transportation on lien” and “prescription on lien” payment models can help plaintiffs recover necessary costs arising from the acts of defendants in an enforceable, acceptable and ethical manner.
How “on lien” payment models help with injury victim transportation
“Transportation on lien” and “prescription on lien” models can do an effective job attacking the nuances of client care without putting lawyers in either murky ethics waters or the red. A structured scheduling system with notification alerts can keep lawyers informed of the comings and goings of their clients without leaving them in the dark about their ability to attend appointments. After all, reliable transportation is a key cog in helping clients attend appointments to achieve optimal health or stability in symptoms.
Therefore, law firms have an excellent opportunity to maximize potential recoveries and minimize tedious scheduling activities simply by transferring these tasks out of the hands of overwhelmed law firm staff and into the cloud. All, of course, while conserving employee work product, payroll and overhead.
The role of “prescriptions on lien” in ensuring clients stick to their prescriptions
Reliable transportation, however, forms just one part of the puzzle for overcoming mitigation of liability defenses. Once a patient arrives at a doctor’s office and receives treatment instructions, they generally have to follow through on those instructions to face the least path of resistance when asserting medical bill claims. However, the rising costs of prescriptions complicate their ability to follow through with their care plans.
With the rise in prices for brand-name and generic drugs across the board, 40% of Americans are struggling to pay for their medications – even though nearly all of them have some health insurance coverage. These costs can go so far as to discourage patients from filling the prescriptions they need because they cannot afford the price.
While not all prescriptions an individual has been prescribed will fall within the bucket of relevant medical damages, they have to be able to afford the ones their physicians recommended for addressing their injury symptoms. The same “on-lien” model for transportation costs can also apply to prescription medications. Under this approach, a third-party provider could issue a digital prescription card to the firm’s client through an app or download link. The client can then use this card to pay off their filled prescriptions.
As with the “transportation on lien” model, all accrued prescription costs are billed under a letter of protection that can be bundled within a plaintiff’s medical damages. This allows injury victims to legitimately claim another key, injury related-expense without risking it being expensed out by a court.
Medical damages can be tricky to calculate — and often give rise to some of the most heated issues in a typical personal injury case. With the help of an on-lien model and technology-powered platforms, any member of the plaintiff’s bar can successfully chip away at a defense attorney’s mitigation of liability argument and ensure that a client is fully compensated for costs a defendant forced them to take on.
All, of course, without creating any ethical concerns in the process.
Dr. Survam Patel is a pharmacist and the managing partner of Compliant Clients, a health service company that improves patient case outcomes through customized medical transport services and pharmacy support to personal injury litigants. He considers himself to be a true advocate for personal injury patient-litigants, and is often seen in the halls of the Texas Capitol, where he testifies before legislative committees in support of patient rights.