The plaintiff's bar has produced consistently higher settlements at a rate of inflation that ought to have claims organizations stepping back to reconsider. Instead, they are throwing their hands up in the air. The industry is having difficulty moving past things they cannot control to understand what they can control. Social inflation and other factors are cited regularly and may be interesting, but they provide no solutions.
If gains are to be made, start with what you can control. With some basic insights into their adversary's playbook, claims organizations can disrupt and dismantle the successful efforts being made against them. To do this, let's first look at how the plaintiff attorney' playbook works. We can then look at how to build the defense playbook that stops it,
To understand the plaintiff attorney's playbook, it is important to understand a few basic things. Most plaintiff attorneys have learned by experience that focusing on medical treatment and billing is the way to negotiate. Spending time on medical detail does not pay. This is critical to know because springing medical data on your adversary simply "does not compute" for them. You have to engage in discussion that brings them there.
How the playbook works
Send the claimant to "participating providers". These are providers who deliver more extensive treatment and charge inflated rates for it.
Draft a demand focused on medical costs.
Wait for the adjuster to respond with an offer.
React to the offer by referencing medical costs. Attack any attempts to speak about medical facts.
This process works very well for the plaintiff attorney. It requires very little effort and requires very little knowledge of the case. Most discussion is about medical costs, types of treatment and diagnoses. Plaintiff attorneys are generally able to settle for at least 1.5X medical costs on average using this approach. For example, if $10,000 in bills are submitted, on average the case will settle for at least $15,000 but often more. (For reference, you should be settling at 1X medical bills or less on average.)
There are many adjusters who have come to believe that is the way negotiation works. However, it offers little to discuss about a case and leaves adjusters with no leverage.
This negotiation approach has to be disrupted. Casentric's negotiation approach focuses on developing leverage. Leverage is created by clearly defining what is being claimed and holding those claims to the burden of proof. So how does the disruptive process work?
Before you make or contemplate an offer, clarify the plaintiff's claims about the extent of their injury and treatment. Ask simple but fundamental questions like "What impact is your client saying the injuries had on them?" and "How will the chiropractor demonstrate their recommendations for treatment were based on medical evidence?" This is so important, Casentric analysis is organized around the standard plaintiff claims and includes these questions. Expect, but don't accept, fluff answers. Get details. like "What, specifically were they unable to do? How much could they do?"
Start negotiations after reviewing clarified claims against the evidence by decomposing the claims made. Walk through specific claims always starting with the injury, not the medical bills. Use observations about evidence to pose additional questions about the claims made. For example "How will the providers support the claim that the claimant was unable to do X, Y or Z? How will they demonstrate the need for treatment when they capture no medical data to show it?" Asking questions is a skill and it is why we train it.
Base your offer on an affirmative position of what is proven. Again, start with the injury itself. "The claimant had a minor injury that resulted in some inconvenience for a brief period of time." Then move to what treatment is justified by the medical data. "There is 4 weeks of initial medical care that is supported by the medical documentation provided..."
Invite the plaintiff attorney to point to evidence that supports a more significant injury and more treatment. Listen. Summarize. Agree to consider these. Set a follow up. Negotiate up based on evidence.
In order for this to work, a few basic changes in perspective are needed. First, the idea that making an offer is compulsory needs to be eliminated. When discussions revolve around the number, the facts don't matter. Second, stop leading with your critique. Ask questions so you know really what you are critiquing. Let the plaintiff bear the burden. No one thinks this is easy. Everyone needs to accept it is necessary.
If you are curious why we are successful helping our clients accomplish the above, contact us. You do not have to be great at this. You have to know how to get better.