A checklist of Considerations for the Medical Practitioner
Any
careful legal advisor will obtain the advice of medical practitioners,
directly or through what is known as a future care cost consultant,
respecting the patient/ client’s future prognosis, and needs. Often
they will meet with you to discuss future prognosis, and then prepare a
draft of recommendations for your consideration. If you are asked to
assist in this endeavor, you should make sure you have considered the
following:
> As a family member;
> As a worker or potential worker;
> As a person with avocational needs or a need to be productive;
> As a member of society – friend, worshipper, school parent, theater supporter…
> As a patient with medical, psychological and rehabilitative needs;
> As a person with a need to feel hopeful and positive about the
future.
The Future from the Law’s Point of View
The
courts have recognized that the future is “not ours to see”. Therefore,
in a lawsuit, it does not require certainty before an award for damages
will be made to cover future expenses. It requires only that there be a
“substantial possibility” that the expense will be necessary. A
substantial possibility is more than fanciful, but is significant.
Compensation is not all-or-nothing. The more likely the loss or expense
is to occur, the more likely the patient will get the full measure of
the loss. The less likely, a percentage of recovery may be made,
instead of full recovery.
Avoid
advocating for excessive or extravagant items. The baby might be thrown
out with the bath water. Discuss concerns such as these with the
consultant. Avoid blind-siding him. In the end, it will be your patient
who will pay the price for excessive claims, or claims that fail to include real and substantial possibilities in his future.
The Standards of Evaluation
The
law provides full compensation for future needs. It will not provide
extravagant care or compensation. The level of care the plaintiff is
entitled to is “optimal”, or put another way, a high standard of
ongoing practical, orderly care. The law does recognize that the
plaintiff did not ask to be put in the condition she now finds herself.
To the extent an award of damages can return a person to their
pre-injury state, it ought to do so. The over-riding consideration is
that the expense be reasonable, and have a rational end in mind:
increasing quality of life to replace what quality was lost; permitting
return to function at home, work and in society; ameliorating pain,
suffering, and loss of enjoyment of life; providing medical care and
rehabilitation.
If
you require guidance about any particular item, then you should ask.
Avoid making value judgements. And always remember, the patient cannot
come back twenty years later, when his needs have exceeded your
recommendation, and asks the courts for more.
A Word about Accident Benefit cash-out
Accident
benefits can be commuted, or cashed out, if both the insurer and the
insured are willing to do so. The process for doing so will be much the
same as in a lawsuit. For a specific time period, or for life, the
ongoing needs of your patient may need to be evaluated in order to
determine what amount of money is fair, reasonable and a safe estimate
of her future needs and entitlements under the policy. In most cases,
the insurance settlement regulations do not permit the settlement of an
accident benefits claim until one year after the car crash.
There
are many temporal and monetary limitations, sometimes determined by
type of service required, under accident benefit policies. That means
you may be asked some rather odd-sounding questions. For example, a
person needing round-the-clock care may not be able to get it if it is
all attributed to attendant care. The limits under Bill 59 (auto
policy) are $6000 per month for injured persons with “catastrophic”
impairments. That is not enough to pay commercial rates for someone
requiring ‘round-the-clock care. The result is that any sort of medical
(physiotherapy) or rehabilitative attendance (life skills training) may
be used to offset the limit. While the
exercise and food preparation training is ongoing, the attendant may
not actually be needed. The expense may be characterized as a
rehabilitation expense in the appropriate case, thus freeing up time to
attribute to attendant care. You may find yourself responding to
questions that finely delineate those differences, to ensure the
coverage the patient needs is found within the policy limits.
You
may be concerned about the wisdom of cashing out benefits when it is
proposed. Is the prognosis established? Do you have concerns about the
future? Should the patient wait, for good medical reasons? If you have
such concerns, before expressing them in writing, do you understand
your patient’s motivation for considering a cash settlement? Are there
other health care experts she should consult? Do not be shy about this
area. No lawyer wants to recommend settlement unless it is a reasonable
and beneficial proposition for his client.
The Patient’s Role – Show and Tell
It
is not realistic for the doctor to know everything about a patient,
sufficient to include all of the recreational, social and productive
recommendations that may be reasonable. So the patient’s role is as
educator, either of the future care consultant, the health care
practitioner or both. Write down a list of things you miss most. Then
add to it over the weeks and months that will no doubt drag by while
this process is underway. If it starts in winter, you may think readily
of snow-based activities you miss, and the challenges of getting around
in slippery conditions. You might forget the problems you had getting
into a fishing boat last summer, or the way the crowds at an outdoor
fair sent you running for cover. Your advisers won’t know, if you don’t
tell them, that ten-pin bowling (or whatever) was your life! Finding a
way to enjoy bowling, or something else as a substitute, won’t happen
unless you talk about it, and show off those trophies.
As with many successful endeavors, communicating with your advisors is key.