Timing Is Everything:
Knowing When and How to Refer Your Patient to An Attorney
Arthur D. Leritz, Attorney and Partner at Adler Giersch, a Leadership Level WSCA Corporate Partner
If you treat patients injured in motor vehicle collisions, the question will inevitably arise: When should you refer a patient to an attorney, and how? For many providers, navigating that decision can feel complicated. But it doesn’t have to be. Knowing when a legal referral may benefit your patient, how to recognize the right time, and what steps to take can make the process easier for you and your team, while simultaneously helping your patient get the support they need.
Giving Legal Advice: Don’t
Let’s start with an easy one: if you have a patient who has been involved in a motor vehicle collision, and they are asking you whether or not they should settle their claim, how to respond to an insurance adjuster’s offer to settle, or if they ask you what the case is worth - the patient needs to talk to an attorney right away. This usually means that the case may be close to settling, and the patient is looking for advice on what to do. As a medical provider, you certainly do not want to give the patient the wrong advice, and you do not want to run afoul of the rules of professional conduct. Simply advise a patient that you cannot answer those questions, only an attorney can, and they need to speak with an attorney right away.
The IME
If you are treating a patient and they happen to mention that their auto insurer is talking about scheduling an “independent medical examination,” this is a red flag. Or, if they mentioned to you that they received a letter by email or in regular mail from a third-party vendor that their insurance company wants to set up an independent medical examination, this is a big problem. This means that the patient’s PIP carrier is likely going to terminate PIP benefits in the
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near future, which could negatively impact the patients care and recovery. Terminating PIP coverage could have disastrous effects: the patient may quit care altogether, health insurance may only pay a portion of the visits recommended, or if they do not have health insurance, your patient may be looking at a large bill they would have to pay out of their own pocket. If your patient is experiencing any coverage issues that may impact their access to healthcare, it is a perfect time to recommend they reach out to an attorney before benefits are terminated.
Good Faith v. Bad Faith
Similarly, in the first party context (the contractual relationship between your patient and their auto insurance company), that insurance company has a duty to operate in good faith. That means they have to follow the terms of the auto insurance contract within the confines of Washington law, and the Washington Administrative Code. If the insurance company unilaterally terminates PIP benefits, refuses to open a PIP claim for your patient, or provides misleading information about your patient’s benefits under the policy, then your patient needs to speak with a qualified attorney. Washington has the Insurance Fair Conduct Act (IFCA), which protects your patients from bad faith acts of insurance companies. If an insurer is found to have treated their insured in bad faith, damages will be tripled and the insurance company will have to pay attorney fees. Only an experienced attorney well versed in handling IFCA cases can pursue these remedies for your patient.
When Liability is NOT clear
In your injury practice, you probably deal with auto collisions where liability is clear – like a rear-end collision. However, liability is not always clear. You may be treating a patient for injuries sustained
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