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Disability: Doctor-Lawyer Issues

LTD and ERISA Lawyers: Riverside, North San Diego & Orange Counties

Doctors and Lawyers: What are their roles?

In general, doctors don't like lawyers because their experience with lawyers is frequently adversarial, such as a medical malpractice claim or a divorce proceeding. On the other hand, lawyers don't particularly like doctors either, because they frequently see doctors as arrogant, impatient, and annoyed with the workings of the legal process.

Disability law is one of those areas of law and medicine where doctors and lawyers must be able to work together. For the benefit of society as a whole, it is important that both sides can come together when patients/clients become disabled due to illness or injury and require long-term disability benefits.

As Professor George J. Annas, who is the Director of the Center for Health Law, Ethics & Human Rights in Boston, wrote in the Lancet:

"Although they often go their separate ways, when physicians and lawyers work together they can be a much more powerful influence on society than when they act separately or simply advocate for their own self-interest."

[Reference: https://www.thelancet.com/journals/lancet/article/PIIS0140673608607850/fulltext]

Completeness of the Medical Records Importance

In a disability case, it's the quality and completeness of the documentation in the medical records that may make the difference between successfully getting a long-term disability (LTD) award, or not. The medical records are the heart and sole of a Social Security Disability (SSDI) case or a disability claim under an employer-sponsored group plan (ERISA).

In disability cases, doctors and lawyers must be willing to work together to make a patient's records medically accurate and complete, and legally persuasive.

Why is there Friction Between Doctors and Lawyers?

Lawyers must appreciate that doctors may have had a personal history of bad experiences with the legal profession and therefore tend to approach lawyers warily and with a good deal of distrust. Because of their prior history with lawyers, doctors, if not downright fearful, are at least highly skeptical of lawyers and what they do.

Doctors are usually more cautious, less forthcoming, and generally unwilling to interact with lawyers, if they can avoid it.

When they do interact with lawyers, doctors feel that they are out of their comfort zone because they don't know the law, which to them seems arcane and full of potential traps for the unwary. What doctors know is medicine, and they will always know more medicine than lawyers, but lawyers sometimes challenge doctors about their medical conclusions, and that can cause friction and even anger on the part of doctors that don't take well to being challenged by persons they consider to know less medicine than they do.

There is also the fact that doctors are really busy. So are lawyers, of course, but the perception on the part of doctors is that they are busy doing really important work (saving lives, treating the sick), about which they are understandably passionate, while lawyers do more pedestrian work that is somehow less meaningful and less valuable.(That's not true, but that's what doctors often think.)

Doctors see lawyers as intruding on their time, inconveniencing them, and costing them money by taking them away from seeing patients, performing surgery, or consulting at the hospital, professional activities for which they would be paid.

Doctors typically don't have an opportunity to develop a personal or professional relationship with the lawyers they come across, with whom they may have a single interaction, and perhaps never see again.

What to do?

For all these reasons, lawyers must try to understand why doctors feel and act the way they do, and doctors must appreciate the fact that lawyers also do meaningful and important work. They are there to help a doctor's disabled patients get the long-term disability benefits that they may desperately need and deserve.

Lawyers sometimes hear from a treating doctor's office that "the doctor doesn't fill out disability forms." Even worse is when the doctor's secretary announces that the doctor thinks there are too many patients on the dole, getting money from the government for disability, when they should be working.

Maybe with that kind of a doctor, there isn't much a lawyer can do, and the patient may need to find another doctor who will be more sympathetic and caring with respect to the patient's disability.

However, short of that kind of intransigence, most doctors will cooperate with a disability attorney who is courteous, respectful of the doctor's time, communicates with the doctor frequently and early in the case, and explains to the doctor what the doctor needs to do to help with a disability claim.

Lawyers Can Inform Doctors

As a disability lawyer, it is important to appreciate the fact that most doctors do not understand what kind of information is important to put into the medical records in order to adequately document a patient's disability and to improve the odds of obtaining a successful long-term disability award. Doctors know what medical information to put in the chart. However, they often don't know the medico-legal documentation that disability insurers and judges require.

Please note that this is not an implication that the lawyer tells the doctor what to document - doctors are professionals whose expert opinion is based on their examination of the patient and other pertinent records.

Tips That a Disability Lawyer Can Give to a Treating Physician

Avoid Conclusory Statements

A treating doctor must describe the factual basis of a patient's disability, rather than simply stating that a patient is disabled. That's a "conclusory" statement under the law, and it will carry little or no weight either with the insurance company who is reviewing a disability claim, or with the judge who is asked to adjudicate the claim.

A doctor must give specific reasons that explain why the patient should be awarded long-term disability benefits. For example, if a patient has back pain and cannot sit for 6 hours or more in an 8-hour workday, the doctor must document that with specificity in the medical records.

If a patient has knee pain and is unable to stand or walk for 2 hours or more in an 8-hour workday, the treating doctor must document that. Or, if a patient is unable to lift or carry 10 lbs or more, documenting this with specificity in the medical records is extremely important.

If a patient is unable to concentrate or "stay on task" because of migraine headaches, the doctor must describe that in the medical records, including how severe the headaches are (on a scale of 1-10), how long they last, how often they occur, and what a patient must do (e.g., lie down in quiet dark room) when the headaches strike.

It's not enough for a doctor to state in the medical records that a patient is "unable to perform any gainful employment." The Social Security Administration (SSA) or an insurance carrier, in reviewing a disability claim, will likely consider this to be a "conclusory" statement, without factual support, and give little credence to it.

In addition, the SSA may consider a conclusory opinion from a doctor on whether the patient is disabled to be an issue reserved to the Commissioner pursuant to 20 CFR §404.1527(e) and SSR 96-5, and that it is not up to a doctor to determine whether the patient is disabled. It's up to the SSA.

What's worse, the SSA may interpret such an opinion from a doctor as reflecting advocacy rather than objectivity, and use that against a patient in its benefits decision.

Describe a Patient's Pain Objectively on a 1-10 Scale

It's best for doctors to describe the severity of a patient's pain on a 1-10 scale, where "1" is minimal or no pain, and "10" is the kind of pain that takes you to the Emergency Room. It's a more objective way of documenting pain, which is a purely subjective matter, and to monitor it from one office visit to another.

Avoid Exaggeration and Unsupported Statements

Doctors must support the documentation they put into the medical records with objective evidence. For example, if a doctor documents that a patient is suffering from severe back pain, 8 out of 10 on a pain scale, then that finding of severe back pain must be supported with objective findings on physical examination of, for instance, decreased range of motion of the lumbar spine, a positive straight-leg raise (seated and lying) sign, x-ray or imaging evidence of degenerative disc disease, with bulging or prolapsed discs, spinal or neuroforaminal stenosis ("pinched nerves"), and other relevant abnormalities (e.g., electromyographic findings).

In order to be credible, the subjective findings (e.g., pain) must be consistent with and supported by objective evidence in the medical records (e.g., physical examination, lab or x-ray findings) that "prove-up" the symptoms.

Be Willing to Work With Patients

Under HIPAA ("Health Insurance Portability and Accountability Act"), patients have the right to review their medical records.. Doctors may not like it, but that's a patient's right under federal law, and patients can tactfully request it to make sure that their medical records are properly reflecting their disability.

Patients also have the right to amend their medical records if they see something that's not accurate and that should be amended. Amending the medical records does not mean that a doctor can change what he/she has already entered into the chart. That's not allowed under the law, because that would be tantamount to altering the records. However, a doctor can add a statement to clarify the entry he/she has made in a patient's chart or to correct a misstatement.

Support a Patient's Disability Claim

Not all doctors are willing to help a patient with a disability claim. Be the kind of doctor that will help. Be an advocate for your patient. If a patient is disabled and cannot work, successfully obtaining long-term disability benefits may be one of the most important things you can do for your patient.

Conclusion

Frustrated by a less than flattering review by William Faulkner, Ernest Hemingway suggested to him that “writers should stick together like doctors and lawyers and wolves”. Hemingway later explained that he didn't mean to imply anything nefarious about wolves, for which he had great admiration. Id.

Hemingway not withstanding, doctors and lawyers should set their differences aside and work together in disability cases. It's part of the job for both of them.

ERISA law is complicated. At Law Med, we are ERISA knowledgeable and experienced. 

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