One of the leading issues with overpayment of injury claims stems from an excuse raised by adjusters and managers that the plaintiff “can board the meds!" Adjusters and managers make this point when defending an evaluation that is high because the medical bills are high. The reasoning goes like this: The plaintiff attorney will be able to present the amount charged for medical services to a jury (or arbitrator or mediator). The large bills will skew the jury’s view of the claim, which will make the case volatile and raise its overall value. The problem with this reasoning is that it’s wrong. Let's explore why. First, it is true that the plaintiff attorney will likely be able to "board" the charges on medical bills. However, this does NOT mean that the jury will view these charges as the presumptive value of the medical services. Juries listen to both sides of a case. Thus, the boarding excuse misses the important point that the defense attorney can, likewise, "board" medical costs. However, the defense will board, in contrast, the actual value of the medical charges. If you don't have a defense attorney who thinks this way and knows how to manage discovery to demonstrate it, read on and consider whether you have the right defense counsel. Second, it is commonly understood that medical providers overcharge for services. This is well documented, as are statistics and stories about charging for unnecessary services. Everyone, including jurors, has been to the doctor’s office and/or hospital and received thereafter a bill for services that exceeded their expectations. They've seen the bill that is first presented—and subsequently see what has actually been paid by their insurance provider for the services. But wait, you say, we can't present what the provider was actually paid. In most states, that is true. It's also, however, only partially relevant. The fact is, providers almost never get paid the amount they charge. This is what you have to demonstrate. Importantly, it isn't the doctor who needs to be deposed regarding the service charges, but, instead, the billing manager for the provider. If you take the time to prepare properly for the billing manager’s deposition, you can readily gather information that will rapidly deflate the value of the medical services and their significance in defining the overall value of the case. For example, you can establish that the provider doesn't actually have any reasonable basis for the way they set charges for services. For example, they haven't conducted any studies or investigated market-based values to set them. The reality is that it doesn't matter if the provider is a large hospital (in fact their manipulation of charges is often worse than most) or a small solo practitioner. They can't demonstrate with any credibility that their charges are reasonable for the geographic area in which they were performed. The next thing that should be established is that they don't get paid what they charge. And this isn't because they agreed to a negotiated rate with some health insurer. Only the largest healthcare systems have this type of power. They accept what is going to be paid by the health insurer and make plenty of money doing it. The argument by claims managers and adjusters that they aren't bound to those reductions in the setting of a third-party personal injury claim just doesn't hold water. Why should they expect to collect a charged amount against the defendant that they don’t collect from any other payers? What rationale could possible justify that? Moreover, did their patient (the plaintiff) even know what they charged? It’s easy to establish that it’s unfair for a provider to charge more for services that are not covered by a health insurer, but, instead, are the responsibility of an individual. How are they in position to pay more than the health insurer? And why should they be expected to pay more? After you've made it through these admissions, it isn't hard to get the final admission from the provider that they don't actually expect to collect the amount they charged. Now that you've gotten that evidence, is it even reasonable for the plaintiff attorney to present charges as the reasonable value of the medical services that their client received? It is inherently biased, and even deceitful, to present a dollar amount to a jury that isn't justifiable by any reasonable standard. In other words, you need to challenge their ability to "board" the meds where they can’t prove that their charges are reasonable. Maybe you lose that pre-trial challenge. However, you will have caused the momentum to shift to the defense. Now, let's get to the third point. When defense counsel presents the "actual" value of medical services, they should do this against the practical experience of anyone who has gone to a doctor and lived to see the bill (if the shock of that didn't kill them). It isn't difficult to connect with a jury (or anyone else) on this point. Most of them have lived through it. Most folks would understandably be swayed by a big number that has no context. Defense counsel’s job is to break the bills down into smaller and smaller increments from the big number that the plaintiff’s counsel presented. People can get their hands around explanations such as "this MRI was billed at $3,000, but providers are actually only paid about $600 - $800 for it." But wait, you say, that’ll make the cost of our defense higher and jurors will find it boring or confusing. To which we say, what’s boring about discussing the unethical practice of billing excessive charges that healthcare providers don't expect to be paid, but that they hope someone will be stupid enough to pay? How would a juror not understand that? And what is better—paying an extra $1,000 to your defense counsel for the time to take an effective deposition on an inflated bill, or building in $10,000 (or much more) for inflated charges. So, if you are inclined to use the "boarding" excuse, think again. Until you fight medical charges (including in cases where you think some other issue is more important), you are going to pay far more than you need to to resolve cases. How much more? Two times as much is common. In far too many cases that we review for our clients, medical billing is a sham. You know it. The plaintiff attorney knows it. The medical provider knows it. Your defense attorney ought to, too, and should act on it!
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