Letter of Protection — Delay Medical Bills Until Settlement

Letter of ProtectionNot every personal injury plaintiff has health insurance. Those who are involved in automobile accidents may have PIP or med pay coverage to pay medical bills, but these benefits are often not enough to cover all necessary medical treatment. These plaintiffs are presented with a catch-22: they could pay for the medical care they need if their lawsuit settles, but they can’t prove their case without first getting medical care. This problem can often be solved through a letter of protection (LOP), which is not actually a letter at all, but rather a contract between you, your lawyer and your medical provider which allows you to get the treatment you need in exchange for a promise to pay your provider directly from your settlement funds.

How a Letter of Protection Works

The language of a letter of protection will vary from lawyer to lawyer, but the basic terms will provide that:

  • Your medical provider will provide treatment while your case is pending.
  • Your medical provider will not require immediate payment of his bills, and will not send your account to collections or otherwise hurt your credit while the letter of protection is in effect.
  • You instruct your lawyer to pay the medical provider directly from the settlement of your personal injury claim.
  • Your lawyer agrees to pay the medical provider directly from his trust account when he receives your settlement funds.

Not all medical providers will provide treatment under a letter of protection. Most chiropractors and general family doctors will. Most surgeons and MRI facilities will not. If your current treating doctors will not accept a letter of protection, your lawyer may be able to direct you to someone who will.

To understand how a letter of protection works, you need some basic information about how settlement funds are handled. When your case settles, your lawyer will receive a check from the insurance company (which most often will require both yours and your lawyer’s signatures to deposit). This check is deposited into the lawyer’s “trust account,” which is a special type of bank account that is regulated by the state bar. After the check clears, and your lawyer obtains your approval of how the settlement funds will be disbursed, he writes checks from the trust account to himself (for fees and costs), to your health insurer, if applicable, to any medical providers who provided treatment under a letter of protection, and finally, to you (whatever is left).

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The letter of protection protects the doctor from having to collect his bill directly from you, a/k/a the patient who couldn’t afford to pay him up front. Without a letter of protection, a plaintiff could receive her settlement money, spend it all, and place the doctor in the unenviable position of trying to collect his money from a person who is likely insolvent, and therefore, “judgment proof.” With a letter of protection, if your lawyer fails to pay the doctor directly from the settlement, and gives the money to you instead, the doctor can then sue the lawyer for breach of contract in the event you fail to pay the bill. Doctors are far more comfortable with this scenario, as your lawyer is (hopefully) more than capable of paying the outstanding medical bill.

What a Letter of Protection Does Not Do

A letter of protection, unlike a lawsuit loan, does not relieve you of your obligation to pay the medical provider if you lose your lawsuit. You have to pay the medical bills regardless of your recovery. This also means that if you settle for a low amount, you may wind up still owing part of the medical bills even after your lawyer pays the provider his portion of the settlement.

The letter of protection is not an agreement by your lawyer to pay your medical bills from his own money in the event you lose your case or don’t recover enough to pay your bills. The only way your lawyer would possibly be liable for your medical bills is if he fails to honor the letter of protection and pays the money to you instead. Even in this scenario, you are still liable for the bills — it just makes your lawyer “jointly liable.”

Settlement tip

Negotiating Down Medical Bills Owed Under a Letter of Protection

Unless you get a full recovery in your lawsuit (which is pretty rare, as most cases settle), most of the time your lawyer will try to get your medical providers to reduce the bills you owe under a letter of protection. Doctors hate this, but most of them who have been through this process expect it (and many will overcharge in anticipation of the reduction). They know that it’s better to recover 75% of their bill than to potentially have to litigate a billing dispute. If your lawyer successfully negotiates your medical bill down after settlement, you won’t be responsible for paying the difference between the full bill and the negotiated amount. You will be free and clear from the bill. Your lawyer will get the doctor to approve the reduction in writing, and you should ask for copies of these reduction agreements for your own records when your case ends.

If your lawyer and your doctor cannot come to an agreement on how much your doctor should be paid from the settlement, your settlement funds can be held up until this is resolved. You lawyer will have to hold back at least as much as is needed to cover the full amount claimed by your doctor in his trust account (but he can immediately pay you the rest of the settlement funds, if there are any).

Most of the time, your lawyer and your doctor will be able to work something out. If they don’t, they both know that the only option left is for your lawyer to pay these disputed funds into the court in what is known as an “interpleader” action. Basically, your lawyer says to the court, “I have money which belongs to either the medical provider or my client. You hold it and make the decision as to who gets how much.” Because of the time and expense involved in dealing with an interpleader, neither your doctor nor your lawyer want this to happen. However, keep this in mind as a possibility when settling your case. Unless the medical provider with the letter of protection agrees in writing before your settlement to accept less than his full bill, there is no guarantee that he will take less after settlement.

Letters of protection are a godsend to plaintiffs who couldn’t otherwise afford medical treatment. However, a smart plaintiff must keep the amount she owes under letters of protection in mind when deciding how much she should accept to settle her case. Also, unless your lawyer negotiates a reduction of your medical bills in writing before your settlement, you should settle your case as if you will receive no reduction. This way, any reductions your lawyer can negotiate afterward will just be an added bonus.

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52 Responses to Letter of Protection — Delay Medical Bills Until Settlement

  1. Zak says:

    How long it take to a lawyer to negotiate medical bills under a letter of protection and how much it can be reduce?

    • fl_litig8r says:

      It really depends on the medical provider. I’ve had some that accept my proposed reduction in a day and others that I had to go back and forth with for weeks before reaching an agreement. I usually ask for a reduction that at least matches my fee percentage (so, 33 1/3% or 40%), but in cases where the client really needs a big cut in the medicals to recover anything (such as cases where liability is in question, significantly reducing the overall recovery) I’ll ask for more. It’s pretty rare to see reductions over 40%. From my experience, 25-33% is most common. Sometimes, you can reach and arrangement where the settlement is split 3 ways: 1/3 to you, 1/3 to your lawyer and 1/3 to your medical providers. It really is handled on a case-by-case basis.

      If you made a large recovery that easily covers the medical bills, your attorney’s fee and leaves a good amount left over for you, providers will be more reluctant to reduce.

      • Zak says:

        I really need a big cut, the medical bills that are under a LOP are grossly inflated (3 x average cost), my lawyer says he can work to negotiate a 50% or more, is this true? Why doctors inflate their bills. Thank you very much for your help…

  2. Ty Gibson says:

    Love your blog/website…
    There is a new medical provider called Diagnostic Injury Solutions/Spine Pain Management, Inc. in Florida who is performing nerve block injections for personal injury patients and filming these procedures. I’ve been told, that they charge in excess of over $9,000 for this procedure, where a typical nerve block injection costs under $1,500. In some cases they’ll do multiple injections on the same patient, doubling the cost. They charge these rates under LOP’s. I’m guessing they are selling these LOP’s to funding sources. Are these types of inflated charges legal? Do medicare fee schedules apply to these types of cases in Florida? If not, and a favorable outcome doesn’t occur, even under these circumstances, is the patient still obligated to pay for these inflated costs?

    Thanks in advance.

    • fl_litig8r says:

      First, the easy part: yes, you still owe your medical bills even if you don’t recover anything in your lawsuit. Unlike lawsuit loans, LOPs don’t provide that you only pay if you make a recovery.

      Now, the hard part: can a medical provider charge you whatever he wants for your treatment? Generally, if the price of the medical service is not specified prior to treatment, the provider is entitled to a “reasonable” amount. This can be disputed in court through a breach of contract action (and possibly pre-emptively through an action for a declaratory judgment), and it will be up to the finder of fact (judge or jury) to determine whether the amount requested is reasonable, usually based on customary charges for such services in your area. With LOPs, you’ll often find doctors inflating their charges in anticipation of you requesting a reduction after the case is resolved. So, to a large extent, these matters are resolved by negotiations between your lawyer and the provider, and ultimately an agreement for a reasonable amount is reached. You should probably discuss your concerns with your lawyer now, as he likely has an idea of how much this provider will ultimately want after the case is resolved.

  3. marie says:

    is patient responsible for past LOP bills if doctor dismisses patient

    • fl_litig8r says:

      Yes. The LOP doesn’t guarantee that a doctor will keep treating you. It only provides that the doctor won’t seek payment for treatment rendered until the lawsuit is concluded. Even if there were no LOP in place, you’d still owe the doctor for the treatment he provided. The LOP simply allows the doctor to be paid directly by your lawyer from the settlement proceeds (this is the trade-off for him not seeking immediate payment).

  4. Amanda says:

    If the LOP is signed by the medical provider and the client, but NOT the attorney, is it still valid?

    • fl_litig8r says:

      From your e-mail address, I assume you are in Florida, so let me point you to an ethics opinion that may help. The short version is that if a lawyer signs an LOP, ethically he must honor it. If he doesn’t sign the LOP, and the client instructs him not to honor it, he must advise the client on the risks of doing so (assuming he believes it to be an enforceable contract), but if he has not assumed a legal duty to the third party (which can sometimes happen due to language in settlement agreements, so be careful) it appears he must obey the client, even if it puts the client at risk for a breach of contract claim (which he needs to warn him or her about beforehand).

      If it is unclear whether the lawyer assumed a legal duty to the third party and a compromise cannot be reached, it may be necessary to interplead the funds in dispute and ask a court to decide how they should be disbursed.

      So, it’s not so much a question of whether the LOP is “valid” (it is still a contract even if the lawyer doesn’t sign it, assuming that it is written properly), but rather whether the lawyer must protect the funds on behalf of the third party. If the lawyer had signed the LOP, the answer is a definite yes. When he doesn’t sign the LOP, it becomes a “probably not, but maybe”, depending on whether an argument can be made that the lawyer has somehow otherwise incurred a legal duty to the third party. I suggest reading the entire ethics opinion I linked to above.

  5. Leon Owen Baldwin says:

    I am having a dispute with my Lawyer and have filed a grievance against him. My question to you is that I have outstanding medical bills . I told him I wanted a certain amount after all bills were paid. He agreed at that time ,but for what ever reason he didn’t pay them. In letters from him he told me that I requested not to pay them, which isn’t true. Only one of the bills has a letter of protection . Any suggestions?

    • fl_litig8r says:

      I’m a bit unclear as to what happened to the money that was supposed to go to pay the bills. Did he pay that to you or is it still in his trust account? Did he settle for a lesser amount than would allow these bills to be paid and still give you the amount you approved?

      I’m assuming that there is a dispute between the two of you as to what settlement amount you approved. For example, you said, “Get me X dollars after fees, costs and medical bills are paid” and he claims you said, “Get me X dollars after fees and costs, and by the way don’t pay anything to my medical providers”. If that is the case, then you’ve got a complicated situation to unwind, as the settlement is too small to get you what you want and still pay your medical bills. Because your lawyer agreed to the settlement as your agent, it’s unlikely that you’d be able to get out of it, leaving your only possible recourse to see if the bar grievance process proposes a remedy for him settling without authorization, or possibly suing him for malpractice for settling without authority. The malpractice case may not be as simple as you assume, as it would involve proving not only that he settled without authorization, but also that your case was worth more than the settlement (which is harder than you would think).

      My suggestion would be to pay the medical providers if you have the funds (obviously try to negotiate them down from their claimed amounts based on the fact that you settled and were not fully compensated). Your dispute with your lawyer will have no effect on your obligation to pay these bills, even ones that don’t have a letter of protection. The letter of protection really just puts the onus on the lawyer to pay the bills from the settlement trust account (and even that can be avoided in some cases if the client specifically orders the lawyer not to). Your obligation to pay the medical bills is separate and apart from any letter of protection.

      If you haven’t already, you need to respond to your lawyer’s letters which claim that you told him not to pay your medical providers. If you made no such request, you need to put that in a written response to your lawyer. Your failure to dispute such a claim in writing will work against you (which is why your lawyer wrote those letters), so write a letter disputing this as soon as possible.

  6. Leon Baldwin says:

    It 4 response pertaining to the bills .All he said we negotiated down , but from I discovered they rejected his offer. 2 of the letters said he would pay them .The other 2 said he didn’t/ wouldn’t. The bills not covered under the LOP , I contacted the medical service providers and they told me he never contacted. In his rebuttal the Grievance committee .He claims to have bargained them down. Not really sure how that is possible. Now I am in Connecticut not sure how it varies from state to state.

    • fl_litig8r says:

      I’m not sure what you’re asking. Nothing about the grievance would change, as it would remain in the state where he is licensed. The medical bills would be governed by the law of the state where the service was provided, though if they sued you and got a judgment against you they’d have to domesticate it in your state to execute on the assets you have there. I’m not sure what this lawyer is hoping to accomplish by claiming that he negotiated down bills that are still outstanding and unpaid, unless he’s still claiming that you directed him not to pay them. Of course, that also goes back to the dispute you have with him over how much you would net from the settlement.

      • Leon Owen Baldwin says:

        He states that I told him not to pay the bills, but provides no evidence other than his word. When he withdrew my lawsuit( without telling me.) The break down on his numbers had him paying the bills. I don’t know why it changed. The conversation we had on this topic was I want xxx amount after all bills were paid ,not xxx net. He said ” that won’t be a problem” but I guess it was . He also sent a letter to one of the medical providers stating that he would protect them. Can he be charged with breach of contract? Any where I can look to find out about lop’s in Conn.?

        • fl_litig8r says:

          I’m a bit confused. Did he withdraw as your lawyer, voluntarily dismiss your lawsuit without settling, or settle your case for less than promised? If your case didn’t settle at all, then there’s no possibility of him having breached a contract by not paying an LOP — those are contingent upon the client making a recovery, so if there is no recovery the lawyer has no obligation to honor the LOP. The same is true of he withdraws as your lawyer before a case settles. I have no knowledge of anything special about Connecticut LOPs. If the state bar has a website, you could try searching there to see if it has ethics opinions online about them. Often, ethics opinions will provide more specific guidance as to how the bar interprets its ethics rules, and I’d be surprised if it hasn’t written any about LOPs. It likely won’t contain any information about breach of contract, as state bars always dodge such questions in ethics opinions as being “legal, not ethical, questions.”

          • Leon Owen Baldwin says:

            He told the judge (without my knowledge or consent) that I would take the deal and withdrew the case. He did manage to get it reinstated about 3 months later. Currently waiting on the Committee to make their finding. His letter to the committee was a 2 page letter of statements that had no evidence to back him up or I had evidence to contradict what he stated.

  7. Michael says:

    Hi fl_litigatror I wish I found your site sooner. I hope I don’t overwhelm you with all this. I have a time sensitive dilemma as my lawyer is trying to take me to court.

    I was in a bad accident over 7 years ago in Jacksonville, FL, with no health insurance. My lawyer provided quite a few LOPs at the time for me to get treated, my medical bills ended being around 200k. It was a long drawn out process and 7 years
    &3 appeals later the insurance company paid out maximum policy limits of 350k, the awarded amount was around 650k. The initial amount was paid out 8months ago. My % ended up being tiny, after everyone cut. There was nothing in the initial closing statement about reductions of medical bills, so I had the contract
    re-rewritten for funds to be held in trust, until it can be negotiated and it must have my approval before those payments can be made.

    I argued back and forth with the the lawyer for a month. She really did not like this but eventually conceded in order to get paid herself and all other parties involved. Nothing was done with the medical bills for 9 months. Even though I have an email from her stating that these bills would need to be paid immediately (after negotiation) and needs my signature. Stating in emails “this cannot wait till bad faith case completes”. Of course this ended up being not the story, not a single attempt was made for reductions.
    At the time I requested all copies of the LOPs, most were signed by me, but to my surprise a few of the major ones like the surgeon doctor came back with a blank spot for witness and blank spot for client signature (me). It was fully signed and stamped by only her/lawyer though. I questioned my lawyer on this and she said it doesn’t matter as it was signed by her. I pushed further and she flipped out on me, saying it is because of her good relationship with this doctor that I was able to receive such care and get the position we did in getting the amount. I had no clue how long these negotiations take and we still had a bad faith pending. The amount that was paid to me initially was just around 20k while all else went to medical, her fees, case costs, appellate lawyer fees, etc etc…

    We had to file a bad faith case for the rest..fast frw 8 months later and we settled for the rest at a reduced rate.(in the begiing, of the case she kept saing that they will file motions and get their fees separate from the awarded amount) this never happened and between all the doctors visits and all the rest I kind of forgot about it. I am lucky I had decent email correspondence as record with her even though she would often gloss over my questions she didn’t like.

    I asked recently if there been any progress in negotiating the bills? She said no she was waiting for the the bad faith to complete. She then sent me 2 new closing statements to be signed, ignoring the fact we had one from before for the initial policy limits which allowed everyone to get paid. The first intial 350k amount and the new settlement amount of 150k. After all was set and done I was set to receive 30% of the total settlement amount, which is not shabby but with all the pain and procedures I had, that money wont last more than a year as I need a few more surgeries in the next 5 years to at least try to have a semi normal life.

    So after grilling her out on the medical bills not being touched for 8months. She sent me a proposed initial offering/w outer limits for the bills, none of these offerings followed any guidelines. Some of the places she offered 80% initial offer and one for 20%, was strange. I counter proposed to give them all 28-33% because of the age of the debts. The statue of limitation in FL on medical bills is 5years from what I researched. I told her off the bat that the ones that she can’t locate Lops on to pay me and let me settle it myself, She is saying its unethical because there is enough there for the to be -paid, but will honor my request, regardless that was only 14k of the 200k of medical bills. The rest had Lops. She said to her surprise quite a few of them accepted
    some counter-offered reasonable & I agreed to pay them since they had Lops, those were all the smaller bills.

    Every step along the way she kept trying to get me to sign the new closing statements, I told her that I do not feel comfortable to sign off on them because we had a perfectly valid one for the initial closing statement and it would only be fair since she waited so long/8 months to start settling, that we finish
    settling them first before I sign the new one.

    The problem is some of the bigger LOPs she was just expecting me to pay close to full amount but got stuck by making a compromise with the language.

    She also just contradicted herself, one of the medical bills was only for 2,500 and she previously stated they had an LOP, we offered them 1,000 and they refused saying they wont take anything less than 2k. I asked her for a copy of the lop and she wrote me an email stating that her copy does not have my
    signature or witness signature and she will contact them for their copy. She got back to me stating the medical place couldn’t find their copy period. Stating something along the lines that they may find it later etc.

    I have yet to call her out on this..Now this goes against her earlier argument where she stated that it doesn’t matter if the lop had my signature or not, it had hers and it was because of her good relationship with such and such that I was privileged to receive such care and get to this point. The ones she wanted to pay 80% are a huge part of the medical bills so far the ones knocked out/ approved were small.

    I’m down to about 4 major ones, I have the copies of the lops she provided, 3 of them have all signed ones.

    With the major lop the bull is 80j. I have visited that Doctor as recently as a year ago for a checkup, so statue of limitations wont apply. With all my bills and delinquencies though I’m not worried about protecting my credit much at this point & mney will spent fairly quickly on new surgeries.. He is a good doctor but he isnt the only doctor in town I can go to if I hurt his feelings. I offered him more than the rest knowing that there is no signature from me or a witness on that LOP, just my lawyer. 35k on 80k..doctors office came back stating they will not accept anything less than 70k. The lop my lawyer sent me is a fax dated , just her signature. I wouldn’t put it beyond her she may try to forge one last second, as it becoming apparent to me they have a long standing relationship/friends. The lawyer stated “that without revealing our settlement which is ample to pay him this fee she wont even make the counteroffer”..(she is pushing hard for this as if the doctor is her client and not me)

    As the doctor fees affect my recovery significantly, what are my legal obligations to him at this point? I understand I can be sued, but feel like they are taking me for a fool. The lawyer messed up by not getting my signature or witness signature and the doctor messed up by not doing the due diligence and accepting an incomplete document in my uniformed non lawyer opinion. Am I correct to fight this? Should I pay it at all? or leave my lawyer on the line. What are the laws /power of the Lop without my signature and witness signature?

    I asked her to make a partial payment to me on the ones that settled while we figure out negotiations with the last 4. She stated in email if us lawyers have to wait so will the client. I told her we have a valid document which states the funds to only be held until reductions and I’m only asking for the amount on
    the ones that have been reduced and paid upon. She flipped out on me again, stating why don’t I just sign and approve it all and get the bigger amount. (reason being i want to reduce her fee) I told her I only have to sign the new one anyway as the first one is valid…She stated it’s not sufficient, I told her what do u mean it was sufficient to pay you & all others and some of these bills.. …The problem now is she has threatened me and gave me a deadline to sign the paperwork or she will be filing motions for some sort of court hearing with Fl bar to validate these new documents in front of a judge.(what are the downsides of that? how long would it tie up the funds alltogether, the ones that settled and such?)

    She also has messed up many times along the way, causing these appeals and additional costs, plus hiring additional lawyers. The fact we needed to do this wasn’t explained to me till we started trial, months after I signed the paperwork with her % not knowing I was getting in for 7 years of stress appeals etc etc.. She also didn’t deliver on a few things she promised, like attorney fees getting covered. She hasn’t shared any of the additional costs, I haven’t addressed her yet on her mistakes…But am dwindling in energy as my health is further deteriorating. I think it be fair if she cut her fee by 10% if she does that then I’d be willing to just pay her doctor friend and let it be. But at this moment I’ve been fighting hard to recover as much as I can from the funds set aside in medical. I’m not sure if I have a case for malpractice, plus I really don’t want to go that route because I am soo tired of dealing with this all this. But do I potentially?

    Should I let her proceed in filing these motions by my refusal to sign the closing statements, (one of which that allowed all these medical bills and disbursements) she now wants me to resign with the protective language of needing my approval removed.
    I don’t know how much a new lawyer will cost me to explain all this to the judge,(one of the reasons I was trying to get this partial payment so I can buy myself a little time to keep fighting this) She is well connected I’m afraid the judge will side with her. I feel I will have zero leverage once I do sign, and giving up my last wild card.She could be bluffing too because the emails I have with her she surely has put herself in an interesting situation as well.

    Thanks for any advice you can give me on this.

    • fl_litig8r says:

      It sounds like your lawyer is planning to file an interpleader action, wherein she pays the disputed amounts into the court and asks the judge to decide how they are split between you and the medical providers. This is the typical response where a third party holds funds that are disputed between two other parties.

      As to the validity of the LOPs you didn’t sign but your lawyer did, there is a possibility that the court will find them to be enforceable against you. It could rule that your lawyer acted as your agent in signing the LOPs (think “power of attorney”), making you as the principal bound by the agreement. Even if it does not rule this way, you are still faced with arguing either a statute of limitations argument (which is not a guarantee even for the oldest bills, due to a legal principle known a equitable tolling, which may extend the limitations period depending on the communications made between your lawyer’s office and the medical providers) or that the bills are excessive and unreasonable. It won’t be easy to make these arguments without hiring an additional lawyer (your lawyer, as a witness, will be conflicted out), as you know the medical providers involved will hire their own. So, there are practical considerations as to whether the cost of hiring a lawyer to represent you in an interpleader outweighs the benefit of trying to resolve this amicably without court involvement.

      With respect to legal malpractice (which I’m actually writing my article about), don’t get your hopes up. Considering that your lawyer not only won at trial, but also on appeal and obtained significant additional money from a bad faith claim, I doubt that any grievances you have as to her handling of the case will be considered malpractice.

      While you seem to take issue with your lawyer’s relationship with one or more of the medical providers involved, consider that it was likely that relationship which allowed you to receive such extensive (and expensive) medical care solely on the basis of an LOP. Asking her to stiff the medical providers now puts her in an awkward position, as it would likely affect her ability to secure medical care for future clients on an LOP. I’m not saying that you and she should not negotiate the bills down to a reasonable amount, but I can see where she would feel conflicted about trying to have the medical providers take an amount she considers unreasonably low. In a perfect world, her need to use these doctors to treat clients in the future would not be a consideration — but in reality, I can see why she is having issues with it. This may be ameliorated by you trying to negotiate directly with the providers, as you have no concerns about her future clients, and the doctors will likely not hold anything against her if you personally convince them to take a lowball offer.

      At this point in the case, I’m not sure that your lawyer really has any incentive to cut her fee — especially if its only purpose is to pay the doctors more (doctors who may be able to recover the greater amount on their own through the interpleader). Considering that there are enough funds to pay everyone, I wouldn’t get my hopes up about that. A better time to negotiate this issue would have been before agreeing to the bad faith settlement, when you still had leverage to affect how much she personally received. Now your only leverage is your opinion that she’d sacrifice her own money to save her relationship with the doctors. She may not see such a sacrifice as necessary, as the interpleader would resolve this issue for her without costing her anything personally.

  8. pam says:

    Is it the clients responsibility to total the medical bills for the attorney in a personal injury case?

    • fl_litig8r says:

      I’ve never heard of a lawyer asking his client to do this (I can’t imagine a lawyer trusting a client to do this), so I’d say no. Of course, if you’re really asking whether a lawyer who fails to pay all of the client’s medical bills from a settlement is liable for those bills, the answer is no, unless he signed a letter of protection that made him legally liable (and most lawyers would never do that). In any event, the client would still be liable for the bills even if the attorney fails to pay them.

  9. Pam says:

    Exactly! I am a nurse, suffered a concussion, am out of work due to memory and balance issues (she wants to trust me with numbers?!)and she emailed me yesterday stating, …”the insurance company wants a total amount on your medical expenses to date.” I feel like I need another attorney, there have been other concerns as well with her. We are nowhere near settlement. I need surgery on my shoulder and am still in therapy for the concussion and shoulder injury.

    • fl_litig8r says:

      This definitely throws up some red flags for me. Unless this is a case where the insurer is tendering policy limits, a lawyer really shouldn’t try to settle before a client is at MMI. The fact that she’s asking you to total your own medical bills just sounds lazy. I think you’re right to be concerned. You should ask her why she’s apparently engaging in settlement negotiations when you haven’t yet reached MMI. Who knows whether you’ll recover as expected from the planned treatment? If her answer is anything but “they want to tender policy limits”, you may have a lemon of a lawyer.

  10. Peter D. Sills says:

    I am a Florida resident; having been involved in an auto accident resulting in severe spinal cord compression and ultimately, surgery. The other driver is at fault; there is no compensatory liability on my part. Lop’s were signed for the hospital, surgeon and anestesioligt. The bill from the hospital listing 5 digit code numbers does not correlate to either CPT codes or ICD9 codes. I am on Medicare, with a Medicare advantage plan. The hospital charges for the one day totaled $148,000. Pure nonsense, i.e. one acetometaphin (Tylenol) had a charge of $108.

    Can counsel seek to reduce the payable amounts using the Medicare Part A in hospital fee schedule, and inasmuch as Florida is second only to New Jersey for exorbitant medical charges, what is your opinion as to the best course of action. PIP has covered some of the initial tests, i.e. MRI’s, but the total amount billed by the three medical providers is approximately $200,000. The combined limits of the at fault driver and myself is $400,000. I am seeking policy limits, an LOP reduction of at least 50-60%. My thoughts are to either receive policy limits with that reduction or instruct counsel to file summons and complaint. Your thoughts would be most appreciated. Thank you !!

    • fl_litig8r says:

      Why were you treated under LOP’s instead of having the providers just submit their bills to your Medicare Advantage plan (and then you’d reimburse your plan from your recovery)? If these providers were unwilling to use your Medicare Advantage plan, and would only treat you under an LOP, that’s a pretty strong indicator that they won’t be willing to reduce their bills to Medicare-like rates. The best you can hope for is a percentage reduction (whether it’s as high as you hope remains to be seen) off of their grossly inflated “uninsured” rates. But as you can see from your own example, even a 50% reduction to the acetaminophen still has you paying $54 for one Tylenol, due to their arbitrarily-set chargemaster rates being completely unreasonable to begin with.

      The best case scenario would be to convince them to bill your MA plan, so you get the benefit of its contractual reductions. Then, you can negotiate your MA plan’s lien down (they should reduce by at least the percentage you are paying your attorney in fees and costs). Otherwise, you’re left asking the providers for a reduction from a rate that is grossly inflated to begin with. It’s like buying a car and negotiating down from MSRP instead of negotiating up from dealer cost — you shouldn’t do it.

  11. Dee [last name removed by admin] says:

    Q1. I just settled a p.i. Case through mediation. Before the case was settled my attorney assured me he could get my medical bills down 25% so I can receive my desired amount of the settlement. Unfortunately I never got this in writing, but if my attorney is unable to fulfill his promise is there anything I can do?

    Q2. Does the plantiff have to sign the letter of protection for it to be valid?

    Q3. Is it malpractice for the medical bills to not be negotiated before settlement? (Note: I tried to get my lawyer to negotiate the bills before settlement but was told he couldn’t until we knew what we were getting)

    Thank you for your Help.

    • fl_litig8r says:

      A1. Not really. Of course, he shouldn’t be making promises like this. He can say what he expects the reductions to be, and that he’s pretty sure that things will go that way, but sometimes things don’t go as expected.

      A2. Not necessarily. If your lawyer signed it, it could be enforceable under the theory that he was acting as your agent at the time. Of course, the letter of protection only affects the medical provider’s ability to take its payment directly from your settlement, not whether you owe the money at all. Even if a letter of protection is unenforceable, you still owe the medical provider for the treatment provided.

      A3. No, it’s not malpractice. Many, if not most, lienholders won’t discuss reductions until you have a final settlement in place (probably to avoid agreeing to a reduction based on a lower amount than you ultimately wind up settling for). I’d say that negotiating reductions after a settlement is the most common practice. While it would be great to try to get reductions in place while an offer is still pending, I think most lienholders wouldn’t agree to that.

  12. Dee Brown says:

    First I want say THANK YOU For your response!

    As for Q2: I was doing some research as I awaited your answer and something I found stated my signature (or something in writing) is required for my lawyer to propose a letter of protection in my behalf. I copied the article below if you could be so kind and let me know if this article is wrong or if I’m reading it wrong, I’d really appreciate it.

    Letters of protection are fairly common, especially for lawyers practicing in personal injury matters; however, agreeing to provide a letter of protection creates a conflict of interest for the lawyer.
    Rule 1.7(a)(2), Minnesota Rules of Professional Conduct (MRPC), provides that a conflict of interest exists if there is a significant risk that the representation of a client may be materially limited by the lawyer’s responsibilities to a third person. Rule 1.7(b), MRPC, permits a lawyer to go forward with a representation in which there is a conflict of interest where, in pertinent part: (1) the lawyer reasonably believes she or he can provide competent and diligent representation to the client despite the conflict; and (2) the client gives informed consent after consultation with that consent confirmed in writing.
    Here, a letter of protection may materially limit the representation of the lawyer’s client because of the new responsibilities to the third party, such as a medical provider. The lawyer is undertaking a contractual obligation to the medical provider that is adverse to the client. Upon receipt of funds on behalf of the client, the lawyer will be obligated to pay the medical provider, even if the client has changed his or her mind as to the wisdom of making the payment. It is foreseeable that a lawyer can reasonably believe that the representation will not be adversely affected by signing the letter of protection. The important requirement of Rule 1.7(b) is that the client consents after consultation.
    The lawyer must consult with the client and explain what providing the letter of protection means. Specifically, a lawyer must explain that even if the client later changes his or her mind about paying the third party later on, the lawyer will be required to pay the third party out of any funds that the lawyer receives on the client’s behalf, even if that means that the client will not end up receiving any funds from his or her settlement. Providing the client with a copy of the proposed letter of protection will assist the client in understanding the obligations being taken on by the lawyer.
    Once the client is fully informed as to the lawyer’s obligations upon signing the letter of protection and still desires the lawyer to undertake those obligations, the client’s consent to going forward in the face of the conflict of interest must be confirmed in writing.

    Once again Thank you for all your help!

    • fl_litig8r says:

      What you’ve copied appears to be an ethics opinion from the Minnesota State Bar. This really only addresses whether a lawyer who signs a letter of protection without the informed written consent of his client has committed an ethics violation (subjecting him to sanction by the bar) due to a conflict of interest, not whether such a contract would be enforceable. In fact, the opinion seems to assume that such a contract would be enforceable, because otherwise it would present no conflict of interest. If you’re in Minnesota, then your attorney may have committed an ethics violation (different state bars have different opinions when it comes to letters of protection), but that’s irrelevant to the enforceability of the LOP. Whether it is even an ethics violation depends, of course, on whether the opinion you copied hasn’t been superseded by another.

      In short, if you thought that this meant that the LOP wouldn’t be enforceable, you read it wrong.

  13. Jimmy [last name removed by admin] says:

    I was rear ended May 1 of 2012. I retained an attorney. He and his partner were with me until last week. They withdrew from my case. I had several visits to the chiropractor and had some relief from severe burning leg pains. An MRI was performed to pinpoint the problem and was discovered that L4 and L5 had bulged with a small tear. I had several shots in the area and got relief for about 2 weeks and it returned. The last thing I wanted was to have surgery. I had the surgery 10-29-13. I had 3 months of relief then it all came back. I cannot walk any distance (1/2 block). I had the depo and went thru mediation. The mediation was a failure. My medical bills are over 115,000.00 and the at fault attorney offered 22,500.00. I advised my attorney to please request a trial date and 1 week later he withdrew from my case with expaining verbally only he was just too old to fight in front of a jury. (not in writing just verbal) I have tried to find another attorney and have had no luck at all. I don’t have a clue what to do from here. The MRI’s and everything shows the bulges and tear. The spine was collapsed around the spinal cord. Myself and the surgeon both feel the permanent damage had already taken place from the accident. I live in South FL. Any advise would be appreciated as to where to go from here.

    • fl_litig8r says:

      I’m sorry to hear about your situation. I’ve written about how reluctant lawyers are to go to trial in recent years, which is why I suggest asking about the last time they went to trial when interviewing a potential lawyer.

      The sad truth is that you have two options. One, keep trying to find another lawyer. Two, take whatever offer the defendant is still willing to make now that you no longer have a lawyer. I would say that there is a third option — trying the case yourself without a lawyer — but the reality is that your odds of a successful outcome with this option are probably 1% or less. I’m sorry I don’t have a better solution to your situation.

  14. Brian G says:

    Hello. First , I want to thank you for creating this website! I wish I had discovered you before I hired a lawyer, recommended by a friend, which of course turned out to be a ‘mill’. I was in a car accident – the defendant is admittedly and factually 100 percent at fault. I did not realize I was injured until 2 or 3 days after accident and had lower herniated , bulging disks confirmed by M.R.I.. 13 months prior I had a microdiscectomy to fix a 20 year old injury in the same disk as I lived with the damage because I was young(24yrs ) and athletically strong so since they did not do microdisc surgery back then, plus I was on medicaid insurance for having a life long illness called Dystonia, muscles involuntarily twist and twitch (tremors) so I have been on maximum S.S.I. since I was 16. So for years I ate Ibuprofen like candy.Over 20 years the discs leaked and receded until the leakage hardened and became like splinters pressing into my nerve with unbearable pain. The doctors tried injections but this did not work and the only option was the surgery. The surgery was on the left side of my disc and it was very successful – The surgeon instructed me to not run and to not lift more than 100 pounds. At age 44 most healthy men do not lift more then 100 pounds so I’d say I was not exactly an ‘egg shell ‘ case – of course my lawyer rightfully claims the defending insurance will try to make it look so. Also the new injury is on the right side of the disc this time but only a microdiscectomy has a chance to fix me. The operation was 100,000 dollars. The cap is 1000,000 dollars which I asked for and refused the insulting counters of 13 thousand and recently 25 thousand.
    I appreciate your patience! So my lawyer and my insurance company never explained to me that my lawyer is my legal go between with my insurance. I accused my lawyer of breech as I believe it is my lawyer’s legal responsibility to inform me I must go thru him to talk with my insurance about how my ten thousand is spent on my back doctors. I was uninformed with such details and when I wised up, my lawyer avoided me and did not call me when he scheduled a phone conference with me as I was too ill to meet in person and they refused to meet by or at my home. Anyway, a new lawyer from a different firm that they sent my way kept calling me and persuaded me that I should hire him. I was and have been very ill mentally and physically so I threw the dice and hired him. When ever I asked him about my insurance money he would say “Don’t worry, let me handle it.” Well, recently behind my back, my lawyer took the 4,500 dollars left in my insurance account – money that is my only safety net should I need anything paid for concerning my back ( I also have a rare disease called Pyoderma gangrenosum which caused flesh on my lower leg to die and fall off to the bone! This started a week after my back surgery and I still have it for five years now. I am on prednisone, a steroid that is taken to purposely lower my immune system which results in cuts in the skin to take months, even years to heal. I also have high blood pressure and kidney disease – let’s say I am a mess.lol. – as a result, I could not have the back surgery up till now for fear the incision could turn into a hard to heal open wound (how do you find an M.M.I. in a guy like me?! )Back to my lawyer taking my 4,500 dollar safety net and paying a lawyer recommended doctor with the money! I have never been offered a letter of protection but the fact that both lawyers admittedly deal with this doctor on a regular basis and told me the doctor will treat me and wait until settlement or trial to be paid and the fact the doctor treated me and never billed me proves there is a blanket agreement or a n actual document between lawyer and doctor or just a phone call equals a handshake equals a contract. My point is the guy screwed me out of my safety net to pay his doctor buddy at an inappropriate time. I believe my Florida client’s rights touches on this in section 8. Any input to this would be appreciated. Also, While My lawyer asked for the full 100,000 cap, I do not believe that was a demand with a 30 day deadline. This has taken soo long that my current lawyer had to file with the Broward court before the 4 year statute expired . I have years of suffering – the result of the injury has been major torture concerning bathroom and sexual issues. I have the depo on april 23rd. I want to instruct my lawyer, in writing, to demand the cap with a 30 day limit. I wonder if there is advantage to making demand now or waiting till after the deposition? Also , I wonder if 10 or 20 thousand over cap is considered a lot of money as opposed to 40 or 60 thousand ergo “stand to make an amount worth pursuing a ‘Bad faith’. Your reply would be Gigantically appreciated. THANK YOU MUCH !!!!

  15. Brian G says:

    Hi again. Just wanted to add some more so I don’t have to keep bothering you for input. I know I said alot but I think you get the gist of the above. You probably realize it but obviously by my current lawyer telling me not to worry about my insurance money and then selling me out by using my available balance to pay a doctor that was not due to be paid, behind my back, and after he hard sold me on how he cares about injured people prior to hiring him – well, I feel he can’t be trusted within reason. Just another mill guy. I am quite upset and instead of watching out for me by leaving my safety net money alone he has actually made me sicker, adding to my already gigantic level of stress. I currently owe just under 35 thousand in med bills , including the 10 grand I will need to pay back to my insurance if I win. I doubt I will ever win enough for a new operation but I hope to win enough to at least partially compensate for the years of being trapped by toilet as I always have to pee in a bottle or soil myself and I get phantom feelings of needing a toilet to go number 1 as well as number 2. sometimes I will go from no urge to go to the bathroom to running there so not to go in my pants. And yes I have gone in my pants on some occasions so I have been living with a terrible loss of freedom and quality of life. I never had this condition from the first injury. (O.K. – a few peeing accidents over the years but nothing like now ) Add the sexual problems, the inability to get proper exercise and major muscle loss and the fact tha under the best imagined scenario it would be at least a year before I could ever qualify for the back surgery. I don’t know what you can or can’t say but I am broke so I sure can’t pay any service to estimate the amount of money towards my constant pain and mental suffering. You can imagine what a tease it was to have my back fixed and feel the best it’s felt in decades for a lousy 13 months and then BOOM. I did read most of your articles at this site. Thanks again for any input.

    • fl_litig8r says:

      I’m really not clear about what this $10,000 insurance “safety net” is to which you refer. If this is your PIP coverage, then typically that gets spent on your first medical bills as they come in until it runs out. There’s no benefit to holding this in reserve, as it can only be used for accident-related injuries and it should be used within a reasonable amount of time after the accident to avoid the insurer saying that the treatment is not accident-related. There is no right of reimbursement for PIP insurers in Florida. Rather, the defendant gets a set-off for any bills that were paid by PIP (i.e., he doesn’t pay you for those bills, and you don’t owe PIP, either). I can’t fault a lawyer for exhausting your PIP benefits. That’s normal. If you are referring to some other $10,000 in insurance coverage, you need to be more specific about the type of coverage.

      There’s no harm in your lawyer issuing another $100,000 demand with a 30-day time limit either before or after the deposition. The question for bad faith is whether, given the information it had at the time the demand was made, the insurer should have reasonably known that the value of the case exceeded policy limits. If it has sufficient information now, the demand can be sent now. If you think it needs your deposition to make it clear that your case is worth over $100,000, you can wait until after the depo.

      I’m not sure why you see being an eggshell plaintiff as a bad thing. The “eggshell plaintiff” is an argument made by the plaintiff, not the defendant, because the law holds that a defendant is liable for all of a plaintiff’s injuries even if they are made worse by the fact that a plaintiff is especially fragile. It is usually summarized as the defendant “taking his plaintiff as he finds him”, meaning that the negligent defendant bears the risk of injuring someone who may be more susceptible to injury than the average person.

      This is different than arguing a preexisting condition, which I’m sure is a major focus of the defense your case. Usually, the defendant argues that the injuries you claim are unrelated to the accident (you’re trying to lump in an injury you already had with anything you suffered in the accident) or that they should only be liable for the aggravation of a related preexisting condition and not the whole thing. In your case, I would expect them to challenge the recovery you made from your initial back surgery and say that your back wasn’t 100% when the accident happened. I would expect your side to argue that you had fully (or at least mostly) recovered after the back surgery and at worst it just made you more vulnerable to further injury, for which the defendant would be fully liable under the eggshell plaintiff theory. I would expect that this is going to be a pretty difficult expert battle over this issue.

      I hope that you have consulted with a urologist (preferably a neurourologist) for your incontinence issues. I can tell you from experience with another client that proving that this is related to the accident (assuming it is) will be challenging. I’m not a doctor by any stretch, but it sounds like you may have a neurogenic bladder, which, if true, will be tough to tie to the accident if you had some of these issues beforehand. I’m not saying it’s impossible, but you should really have this checked out either way because it’s not going to get better on its own if it is what I think it is.

      There are no services to help you (or lawyers) calculate pain and suffering damages. They aren’t really subject to any specific rules. Usually, the only time outside help is needed is to calculate future wage loss (which for someone on SSI isn’t an issue) and future medical treatment in particularly complicated and expensive cases. Often this is done by an economist or what’s known as a “life care planner”, but it isn’t practical in most cases because it can be very expensive. Most of the time, a lawyer can estimate your future medical costs with the help of your physicians and then come up with a pain and suffering figure based on that and his personal experience with what cases are going for in your area with similar damages.

      I’d be pretty careful about getting too confrontational with your new lawyer. Claiming that he’s raiding your insurance to pay his doctor friend when he might just be doing what he’s supposed to with your PIP is a bit too accusatory. You’re already on your second lawyer, and it will be very difficult to find a third if you alienate this one with accusations that may be based on not knowing how these claims are typically handled. He may not be the most communicative person when it comes to educating you about what’s going on in your case, but this is unfortunately pretty common among lawyers. Don’t assume that he doesn’t know what he’s doing or is doing something wrong just because you don’t know what he’s doing. Follow my advice in this article to get return phone calls, but keep in mind that a client’s consistently negative and suspicious tone makes a lawyer want to avoid dealing with that client. You’ve got a really complicated case — one which has a lot of medical causation issues that make it difficult to settle because it’s kind of an all-or-nothing prospect. Either the jury agrees with you and awards you a lot of money or the jury agrees withe defense and awards you very little. It’s difficult for both sides to meet in the middle when each is convinced that their own preconceived outcome is most likely. I wouldn’t want to be the one shopping this case around to lawyers, especially if you’ve already been through two. I’m not suggesting that you let your lawyer walk all over you, but I do urge caution in getting too aggressive with him.

  16. Brian G says:

    Thanks for the input. Yes , I meant pip and I guess I thought of what was left-4,500 – was maybe for me to use on future back care. What made me think this is the first doctor I chose was a sport chiro and his lawyer has been trying to set up a dep to sue for an amount of money that I told my new lawyer I wanted to see a breakdown to make sure the chiro was not padding too much. I saw this chiro before I saw the two back doctors that the fist lawyer sent me to so I felt the first doctor should be addressed first. The chiro’s lawyer called me at home about 5 months ago, I gave him my new lawyer’s info – tel. number. Then over the course of time the chiro’s lawyer called me again and I told my lawyer – he said don’t worry and finally a depo supeona came to my house- my lawyer must have put them off. Then time passes and they send me a new depo for january. I call the chiro lawyer because I had told them earlier that because of my injury the meeting place for depo will need to be close to my house and I also want an itemized bill to see the charge for each treatment. The chiro lawyer calls me back that day and says there will be no depo because state farm – my insurance -has given all the balance to another doctor which turned out to be the lawyer recommended doctor I told you about. So the ‘safetynet I obviously imagined. But the way this went down with my lawyer not filling me in on any of it seemed fishy to me.And a few days later I get a statement from statefarm and I see some various payments were made to the chiro but the balance was handed to the doctor who I thought legally gets paid only after settlement. Maybe I’m old fashioned but I thought I should have a say that the first doctor get’s his due first – not the third doctor.(I know, silly me for wanting to deal with people in a fair way) I try not to call my lawyer and rarely have because I know it’s dumb to be excessive .And you may not agree with me but I think initially one’s lawyer should give a quick once over to explain how the relationship with my insurance works as I can not speak to them – only my lawyer can. No need for you to explain this as I understand the rule I just think a client should be in the know right off the bat so I don’t stress or waist time calling too much.
    Anyway, I believe what you said is the defendant technically gets a 10 grand reduce and my state farm gets no reimbursement .
    Now the way my lawyer talked to me (considering how you explained above, which I have felt in my gut it should match what you said) seems backwards. He makes it sound like the defendants will want to say I already had injury and I probably would have been worsened again with or without a car crash so they should pay me less . It IS A FACT my back could not have got new herniated and/or bulging discs short of a car crash. Lifting a fifty pound object could not have done it. I’ll just roll the dice and hope my lawyer mans up if it comes to trial for I believe anyone who sees documents to confirm my condition then a hundred grand cap is getting off easy. I must see a neurologist as I am due for a dystonia – tremors visit and it did not occur to me nor my lawyer or back doctors to tell me to see one concerning the bathroom and sex issues. You did mention something about it being pre- condition. It is not, it came with the car crash. Peeing my pants because I could not hold it till I made it to a bathroom once or twice over 15 years ago is not really relevant Thanks Alot!!!

    P.S. I already read your article. My problem is not unreturned phone call.My problem is obviously that when he does call I want full enclosure – voluntary updates in any and all areas. I simply want to be kept up to date, not left in the dark which comes off to me as lazyness or he can’t be bothered or a client in the dark makes a happy lawyer. example -I never heard of a ‘ letter of protection’ till I read it here. Surely, you can see me being worried and he paid a doctor that could have waited. Now , do i ask him about an LOP. Probable worthless at this point. Do I ask if he got a paid in full agreement? Not likely. Odds are it is just a partial payment with a balance. Not freely telling me these things is what upsets me – your advice at this site makes him seem shady.

    P.S.S. Not now but down the road I will discuss hitting a new car which nowadays is harder to dent because they are made out of that flexible material that absorbs alot without denting compared to my thin metal 93′ ford van which can be dented and how insurance photographers may have ways to clearly show my damaged bumper from many angles but show a closeup shot of a gash in the defendant’s car yet you can not see where the gash is from other various pictures showing poor p.o.v.s on he car and some shadows.

    • fl_litig8r says:

      Typically the way PIP works is that the PIP insurer pays bills in the order in which they receive them, which may not coincide with the order in which you saw the treating doctors. This can change if some bills are challenged, but if things go smoothly your lawyer doesn’t really get involved with the PIP coverage. It’s purely a matter of your doctors submitting the bills and the insurer paying the doctors directly. It could be that for some reason, the doctor you wanted paid didn’t submit his bills as quickly as he should have, so he lost out (on the PIP money) to a later doctor who submitted more quickly. If you asked your lawyer about this, he should have explained to you how PIP works. It’s really not that complicated. I proactively explain this myself, because clients need to know to tell their doctors to submit the bills to PIP first. Some lawyers don’t, assuming their clients or the doctors already know to do this.

      Your lawyer probably isn’t wrong in saying that the defendants will try to argue that your herniation or aggravation was a preexisting condition. While your doctor may back you up and say that this could only have been caused by your accident, don’t think that this is undisputed fact. There are lots of ways to herniate a disc (one of the lawyers I worked with herniated two discs in his neck without ever knowing how it happened — he just started having problems and had it looked at). You can’t say “I didn’t lift anything heavy. Therefore it can only be the accident.” That’s an argument to make, and a good one, but don’t think that the other side won’t try to argue otherwise.

      With respect to your incontinence, I read your comment as saying that this had been an infrequent issue in the past but was now much worse. If that isn’t the case and this is a totally new problem, then you should absolutely tell your doctors about it. It may or may not be related to the accident, but it is something that should be noted in your records immediately because the longer you don’t mention it, the weaker the argument becomes that this condition is related to the accident. While a lot of jurors might forgive a delay in reporting an embarrassing medical condition, it’s still something that should be addressed immediately.

      With respect to the communication issues between you and your lawyer, just tell him that you want to be more informed about things like how your PIP coverage was being exhausted and whether letters of protection are being used. He may assume that his clients don’t want to be bothered with the technical behind-the-scenes workings of their claim or, as you suggested, he may be lazy and not want to take the time to teach his clients about these things. I know it’s hard to ask about things you’ve never even heard of, but that’s one of the reasons this site exists — to explain how things work to clients whose lawyers haven’t done so already. I don’t view these lawyers as shady, but more like doctors with poor bedside manner. They may do a good job and get a good result, but they aren’t the best when it comes to taking time to give the client some peace of mind by explaining things.

  17. Brian G says:

    I thank you very much for making time for me! I obviously have challenging problems on every level but I will stick to my guns and roll the dice because I was truly injured in an accident that was completely the defendant’s fault. It is a nightmare. I certainly established from day one with the doctors my incontinance which I have not experienced for the last twenty years and this brand new issue is at a way worse level then any small “soiling’ over 20 years ago. Also the bowel movement problem is first time . And the back surgeon was hesitant to list my sexual damage as if he thought it was over kill and trying to save me unnecessary embarrassment by mentioning it but truth can be embarrassing – it still matters to me so I listed it.Standing at attention takes a lot longer but it’s the LOSS of my ‘O’ that makes me crazy.There – I said it – LOL – yah gotta laugh to cut down on the crying.I think that loss is worth more than the cap in itself. Where do I find a professional to confirm THAT? ( just venting, don’t answer that, unless you know something I don’t.)FYI, I know the doc that got paid did not ask for money before the chiro. I mentioned some thoughts to my lawyer concerning the amount the third doc was charging and a week later the pip remainder goes to the third doc. It simply happened that way.like you said – my lawyer probably realized the pip should be depleted and sent it where he preferred. I think your site is great and I think you are generous for creating it!

    • fl_litig8r says:

      Glad to help. If you can prove that the incontinence and sexual dysfunction are related to the accident, I would say without a doubt that your case is worth more than the $100,000 policy limits. However, proving such a thing is not as easy as you think. If you reported these symptoms as soon as they occurred and your doctor documented them, that certainly helps. However, the timing of the issues alone won’t win the day without a plausible explanation for how the relevant peripheral nerves were damaged by the accident. I would expect there to be experts on both sides with their own arguments about how this is or isn’t possible, so it’s not a simple matter of proving that you didn’t have the problem before the accident, but you do now. I know that it seems like that should be pretty convincing, but trust me when I say it’s probably not enough. As I said earlier, if possible a neurourologist would be your best bet in diagnosing the problem and suggesting a cause. A urologist would be my second choice.

  18. Brian G says:

    I’ve been making appointments for all the doctors I need and I am due to see these doctors even if I had no car accident. Doctors aside it mostly seems like what the jury will believe it it comes to court. What do you think of the idea of me getting a phone with pictures and video options and since pictures show limited daily function maybe I should start videos of my daily routine – I would have to figure out how video records actual date and time as phones have the service provide actual time and dates. I guess I could video a second phone in my hand to show indisputable time and date from the second phones screen. I could video every time I go to the bathroom – covering the privates with a shirt of course – but every false alarm visit when it feels like I have to go real bad and then I do not go – every time I actually have a movement ( I’m sure the sight of me sitting on a tall ambulatory toilet which I put over the real toilet , elbows pressing on the armrests ( my elbow are quite calloused from years of this hell ) plus I have to hold a male urine bottle at the same time. and I fill two or three of these bottles while in my bedroom or bath ( much of the time I will hardly go in the morning but I can produce over half a gallon in 3 to 5 hours by going 6 times) I could show the empty bottle, turn my back and go, and then turn to the camera – repeat, repeat. video how often I have to clean these crummy bottles thru out the day. Showing my routine and my misery should have some value – yes? Plus it sounds like that would make two family members as good as four family members as witnesses. Although you will probably think I should bring in the whole family as witness or would that be some type of over kill or worry of the defense twisting my family’s words?Notarized witness statements? I hope I am not annoying you,

    I know it’s too late for this after thought but my van has not run for 2 years because of fuel pump issues. 4 to 8 hundred dollars I estimate to fix it. So I have been borrowing cars or bumming rides for 2 years. Since I ahve the bathroom issues I could not take a bus from medicaid as I always need the option of stopping at a bathroom or turning around and heading home. Since this is from my back injury could I have gotten pip to reimburse me for my van repair being ‘ necessary equipment ‘ ?

    Lastly (we hope- LOL ) The treatment options for severe stress is pretty much medicine and try to avoid stressful situations (HAHAHA!) and/or therapy/ R&R. My point is R&R IS medicine, Expensive medicine like ALOT of weekend getaways with a payed driver/babysitter/assistant to allow me to escape to retain what’s left of my sanity. I’ve been on valium 3 times a day and painkillers round the clock for an unhealthy amount of time. Could be on it for the rest of my life. GOD , I HATE being on meds. I take big doses of these things and believe me I do not get high! Most of the time they both fall short of the level of comfort I try to get from them. No, I don’t expect them to relieve all pain and stress. It’s an effort to keep me out of the ‘ rubber room’. I’ll hush now.

    I’m sorry! One thing I wanted to ask. If I went to court would I have an opportunity to make a statement at some point or can I only convey my thoughts from my lawyer questioning me? THANK YOU!!!!!!

    • fl_litig8r says:

      If you want to do a “day in the life” video (that’s their common name in the PI industry), you should run it by your lawyer first. I wouldn’t worry so much about absolute proof of when the video was taken. Typically, the person taking the video (or even the subject of the video) just testifies as to when it was taken. It’s not like the defense will have any evidence to argue that it was taken at another time. I really wouldn’t go for a super graphic video. First, I don’t think it would be any more helpful than your testimony to that effect. Second, you may turn some jurors off if it seems too staged or it seems like you’re just doing it to gross them out. Third, a judge may (and probably would) exclude it under the evidence rules as being more prejudicial than probative in value. I had a client who needed to catheterize himself every time he needed to urinate for years (before a semi-permanent solution involving a surgically-installed catheter which led from his bladder out through his abdomen to a bag was finally employed). I never would have even considered using a video of him inserting the catheter at trial. His testimony was graphic and moving enough. So, while it might be a good idea to document on video the number of times you need to get up to use the bathroom every day (among other things), I wouldn’t take the camera past the bathroom door.

      With respect to family members, it’s really a judgment call as to who gets used at trial. I wouldn’t use more than two people, because the jury will just tune out multiple people saying basically the same thing after the first one or two. One or two people who can provide the most impactful testimony is better than carpet bombing with everyone who knows anything about how your injuries affect you. Plus, you’ll also run into the issue of the judge likely excluding witnesses beyond a certain number who are going to give duplicative testimony. Notarized statements can’t be used at trial (it doesn’t matter that they’re notarized — they’re still hearsay), so forget those.

      You couldn’t have used PIP money to pay for your van repairs, even though you relate them to your medical issues. PIP can be used to reimburse travel expenses to and from doctor’s appointments (even if you use your own car, you can get a reimbursement usually tied to the mileage rate used by the IRS), but that is about as far as Florida courts would extend the coverage.

      Medical expenses for treatment of emotional distress caused by your injuries are compensable as long as they are reasonable. So, mental health care and associated medications can and should be claimed as part of your damages. Relaxing vacations should not, unless you want to lose all credibility with the jury.

      If you go to trial, your time to make a statement to the jury is during your testimony. You work it out with your lawyer so that he asks you fairly broad questions that allow you free rein to say what you want. In theory, you could make your own opening statement or closing argument, but I’d never let a client do that, no matter how intelligent and well-spoken the person may be. There’s just no reason to do it when you can accomplish the same through testimony. It leaves too much opportunity for error.

  19. Brian G says:

    Hi again. I had wrote you some new stuff but I cleaned out my p.c. today and I think my message disappeared because I deleted the cookies. For the moment, can you tell me if it’s bad faith can I agree to swap and sue ( I read your article on this topic )the defend insurance co. and let the defendant off the hook without her having to file bankruptcy ? My lawyer had made it sound like if I ask for too much money from the old woman’s financial worth, the jury might think I am trying to hurt her and look at me badly. Thanks yet again.

    • fl_litig8r says:

      If you’ve already demanded the $100,000 policy limits and the insurer rejected your demand, I’d seek as much as possible at trial without concern for the jury thinking you’re trying to punish the little old lady defendant. Jurors in Florida don’t hear about a defendant’s insurance, but most are smart enough to know that some insurance exists. They’d likely believe that you’re going after an insurance company (which you really are) and not trying to put some old lady out on the street. Not claiming your full damages at trial for fear of alienating a jury is just crazy talk. As long as the damages are provable, I’d claim them. They’re not going to give you more than you ask for (well, most of the time, anyway), so why ask for less than you can legitimately claim?

      It’s not bad faith to enter into an agreement (after an excess judgment is obtained) with the defendant to accept an assignment of her bad faith claim against her own insurer in exchange for an agreement not to try to recover the excess from her personal assets. This is how bad faith claims against liability insurers are typically done.

  20. Brian G says:

    MAN, am I glad I asked you these things!!! You really have set me strait and not having to video is great!!! If my lawyer does not request at least one family witness do I insist or leave it alone?

    May I ask a big one? If I do win and after the smoke clears and everyone is paid, how do I hold on to, or spend my share? Example – I end up with 10 grand. Unless a miracle happens at 215 thousand from the jury – let’s assume that does not happen – It certainly won’t pay for a back surgery 1 or 3 or ??? years down the road and it IS comp for grief and to help take care of me while I continue suffering until a time when I hopefully can have surgery. I have SSA and SSI – Medicare and Medicaid as secondary. SSI allows you only up to 2 grand in the bank. What special categories or accounts or whatever am I facing? My lawyer told me he would tell me and help me in this matter if the time came, when I first spoke with him. But I really value YOUR knowledge! PLEASE and Thank You !!!

    • fl_litig8r says:

      When it comes to trial, I would expect your lawyer to call at least one witness, like a family member, to testify about how your injuries have affected you. I would push for this unless he has a really convincing reason not to.

      With respect to how a judgment or settlement will affect your SSI and how to handle the money (trust or no trust), see my discussion with this other commenter

  21. V. Inan says:

    Thank you in advance for your reply. I am a healthcare provider. I saw a car accident patient in 2010-2011. Both the patient and her attorney signed the LOP. I sent the attorney the requested records and bills and never heard back from them over the years. Knowing that these cases can take a long time to settle, I wasn’t worried. Over the years, I have called the attorney’s assistant for update without getting a returned phone call. Finally, this year 2015, I decided to really follow-up with them. I left multiple messages and no one returned my call. That’s when I began to feel that something is not right. Last week, after calling multiple times and leaving messages, I stopped by their office, and one of the the assistant came out and was very rude and defensive. She told me that the only person that can help me is the person that I had been leaving the messages for to begin with. I explained to her that the reason I came in is precisely because this person has not returned my call. I left my information for this person to call me. I also asked her if I could make an appointment to speak to the attorney and she told me absolutely not. I just wanted to know the status of the case. The receptionist witnessed the whole thing, and thought that the assistant was so wrong. I asked the receptionist if there is someone else that can help me, she had me leave a voicemail for the office manager. A week later, no one has called me back.

    Feeling helpless, I decided to contact the Bar Association of Florida. While on their website, I searched to see if the attorney was still active with the Bar, and he was. I also noticed that they listed an e-mail address for him. Before reporting him, I decided to email him directly. I started the email by stating “I got your email from the Bar Association’s website” and that I have been trying to reach his office without any response and I need to know the status of the case. I also informed him that I am hoping to resolved this amicably as soon as possible. He never replied, but I got a call from his assistant that same day. She was very apologetic and perplexed saying that she never received any of my messages, and maybe it’s because she was on maternity leave and they also had a new secretary.

    She informed me that the case was settled in 2012. Prior to that we had send them the requested medical records and bills on more than one occasion. She asked me to send everything over to her again because the file was on storage. She told me she would get it out of storage and have the attorney review everything. I sent her the files, and now I am waiting to hear back from the attorney.

    The balance is over $4000. What kind of protection does the law provide for me in this case? Should I expect to get paid. If so, in how long? I am assuming that this is malpractice. Should I still report him to the Bar?

    • fl_litig8r says:

      Your legal recourse would be a breach of contract action against either the lawyer, client or both. Florida has a 5 year statute of limitations for claims based on a written contract. The lawyer didn’t commit malpractice, at least not insofar as you being able to sue for it — you weren’t his client. The following ethics opinion from the Florida Bar explains its stance on how lawyers should handle letters of protection from an ethical perspective, should you choose to involve them.

      I would think that if the lawyer screwed up and failed to pay you when he should have that he would try to resolve the claim to avoid involving his former client and the bar, so given that you have some time left on your statute of limitations, it may be better to see what he does now that you’ve gotten his attention before suing or filing a bar complaint. Doing either of those may make him dig his heels in (if there’s any possibility of disputing the contract, or at least his obligations under it) and may delay you getting paid. If he continues to jerk you around, I’d pursue your other remedies.

  22. Brian G says:

    Hi again! the info you had me read was helpful – Thanks. I want to ask – can I take 2,000 from the settlement, the max allowed by SSI to have in savings, and if put in the bank would I lose my SSI for a month? Also, can I choose my trust and can I appoint a family member as the disperser of the funds in the trust. Say I want to buy a T.V., does the person/ agent in charge of the trust write a check, a money order or a debit number over the phone? If I can not have a relative simply pay with a check from the trust then how many steps are there for the agent to actually pay for something – the process? Lastly, can I purchase life insurance with trust money. Thank you again!

    • fl_litig8r says:

      With respect to your first question, yes — kind of. Your income would exceed the monthly amount allowed under SSI so you’d lose that month’s benefit, but after that your entitlement would be determined based on the countable resource limit of $2,000. Having $2,000 in cash would mean you couldn’t have any other countable resources, though so taking $2,000 exactly would probably not be a good idea unless you deplete it somewhat during that first month.

      Issues of how SSI-friendly trusts work on a nuts and bolts basis, who can act as trustee and how exactly the money can be spent are really not in my wheelhouse. You’ll need to research this stuff yourself, as I would have to to answer your question. I’ve been lucky enough to not really have to deal with SSI issues more than once or twice in all my years of practice, so it’s not something I can answer off the top of my head. From the research I did to answer that other user’s questions, I can say that there are lots of good websites out there that deal with these issues.

  23. Pattie [last name removed by admin] says:

    I do billing for a Florida provider and I need to know if the patient has a Letter of Protection signed by both the lawyer and physician can we send monthly statements to the patient? I am aware we can not send them to collection.

    • fl_litig8r says:

      You asked this question twice (I deleted the first one) but you initially asked if you could bill the client. I assume from you changing the question to ask whether you can send “monthly statements” that you figured out on your own that “billing” the client would likely violate the LOP. It really depends on the language of the LOP, but sending statements as an “FYI” as to what is being charged is fine. Sending it as a normal bill with a payment deadline likely is not. Perhaps your normal billing statement along with a note saying that it is for informational purposes only and that it is subject to the LOP would be o.k., but if you keep sending statements showing that the bill is 90, 180, etc. days late as if there were no LOP I would find that problematic. LOP’s usually aren’t written only to protect clients from outside collection actions, but also to prevent them from being hounded over unpaid medical bills by the physician who stands to benefit from the arrangement as if there were no arrangement at all.

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