Wednesday, May 8, 2013

Martha's Case Wouldn't Happen Today

I don't quite remember the year, but likely it was around 1989-1991.

I was a young defense lawyer working for the esteemed firm of Miller & Folse.

My mentor was name partner Rene Folse, JD, PhD. Folse had gained a reputation in the industry due to his education, experience and novel tactics, as The Man in psychiatric cases so we had a good sized inventory of those cases.

This was during the era of psyche-mills and nonsense medical-legal head to toe referrals perpetrated primarily by criminal enterprises taking advantage of liberal reimbursement guidelines, unwitting claims adjusters and unsophisticated claims management techniques.

The job of the defense attorney at that time was to discriminate between the legitimate claims and those that were being trumped up by shady medical practices seeking to make money on unwarranted procedures, or services that weren't even performed.

I was assigned a psyche case, but it didn't fit the mold of the typical mill scenario - the usual suspects of multi-disciplinary clinics were not involved, there was little work up by the diagnostic labs, and the applicant attorney firm was known as being top notch.

Back when depositions took only an hour just to make sure that the claimant was a real person, Folse trained us how to do REAL depositions that involved detailed questioning about the various factors that comprise a diagnosis under DSM-III, the guideline for diagnosing psychiatric maladies in use at the time.

So I took Martha's (the claimant) deposition. And over the course of seven hours I learned of this lady's horrific childhood and tortured (literally) young adult life. I learned about rape, abuse, murder, drugs, alcohol, jail - Martha's life story was captivating, real, devastating, heart-wrenchingly detailed and honest.

This lady wasn't lying - at all.

After these incredibly depressing life events, Martha met her employer - a good natured, compassionate dentist who hired her, trusted her, and gave her a new life for nearly 20 years.

Martha made an incredible psychological recovery and led an uneventful, if not normal, adult life.

Her employer was her hero. She trusted him implicitly. He rescued her from a terrible life and she returned the favor with dedicated service.

Then one bad day the dentist snapped and took it out on Martha, including physical contact (hand slap across the face); an act of violence, albeit nominal, which the employer did not dispute.

This was enough for Martha to de-compensate. The one man that didn't abuse her, that rescued her from depravity, in whom she placed all of her trust and emotional support, breached that trust and that sent the claimant spiraling back into her emotional nightmare.

The skeletons that she had been able to keep hidden in her closet came out like phantoms in the night and haunted her uncontrollably.

At that time there was no differentiation between psychological injuries and physical injuries. There was no minimum threshold of causation. If an injury triggered some underlying condition the employer bought that condition too.

The laws were simple back then. The Labor Code was half the size it is now. The regulations were minimal. Common sense had not yet been supplanted by rigid rules.

I finished the deposition late that afternoon and pulled the applicant attorney aside, a young Ruben Feldsteiner, and engaged him in settlement discussions.

I knew that this was a bad case that would get only worse if I didn't resolve it now. Martha was going 100% if she stayed in the system - that much was absolutely clear to me.

Ruben and I negotiated a $70,000 compromise and release of the case.

That was a lot of money back then, particularly for a psyche only case. But this case was not a medical-mill case. I had a very credible applicant, the employer didn't dispute the events leading up to the claim, and I imagined a life time of psychiatric and psychological care that would cost far more than $70,000, let alone lifetime permanent disability indemnity at the temporary disability rate - and applicant was only in her mid-40s.

I called my claims examiner directly from the deposition and gave her the news and my recommendation for settlement right then, right now.

The claims examiner was erudite and claims savvy. She had been in the industry long enough to know a bad situation getting worse when she saw it. I immediately had settlement authority for $70,000, drew up the compromise and release, and it was signed right there at the deposition with the court reporter, still weeping from this incredible story, as witness.

Case settled, done, gone - experience modification harmed only slightly. Expenses minimal. My attorney bill at that time was probably for no more than 10 total hours (at $90/hour!) on the case: initial receipt and file review and deposition time.

There was no bill review, no independent medical review, no utilization review. I didn't have to go through several layers of carrier bureaucracy to get authorization. I didn't have to write up some lengthy discourse justifying my request.

It just worked the way it should work: clean, fast, efficient.

There is no way this could happen today.

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