Pandemic Medical Treatment and How it Affects Your Lawsuit
Written By: Edward A. Ruffo , Esq.
Our current and prospective clients have, in most cases, deferred treatment during the pandemic that gripped our county and in particular, the metropolitan New York City. However, victims of automobile accidents, workplace accidents, and in general those clients or victims with orthopedic injuries rely on a continuity of treatment to ensure a successful and meaningful recovery. For example, physical therapy on a herniated disc or range of motion exercises to a fractured extremity makes all the difference between a recovery that might mean a return to work with an active lifestyle versus a lifetime of pain and limitation. Most medical providers have been required to delay ‘elective surgeries” due to the demand placed on hospitals and front line medical providers during this pandemic, however many medical providers such as physical therapists, orthopedics, neurologists and pain medicine specialist have either been able to accommodate patients in an office setting that respect current social distancing rules or provided online in-person consultations where current symptoms are discussed and a remote treatment plan is prescribed. The remote treatment plan may include the prescription of medication, a modality of home treatment regimens such as rest or specific stretches and exercises or in the extreme acute example a referral for emergency intervention.
Online office visits often include a videotaped session on platforms including Facetime, Zoom or Skype. Defense attorneys who are currently struggling to bill hours on case files have “wised up “ to the nature of these “online “ encounters and requested that our office provide authorizations to obtain not only the records of these “visits” as reduced to writing by the physicians BUT ALSO A COPY OF YOUR ONLINE VISIT!!! Your first reaction may be that this is something that is personal, private or otherwise not something that should be made available. But the prevailing notion in accident cases is that ANY treatment related to your injury is fair game. Indeed when you bring a lawsuit, you impliedly place all treatment related to the injuries you claim from your accident or lawsuit up for full examination and evaluation by the attorneys who are hired to defend or oppose your claim. So we are now faced with requests that not only the records of these encounters be disclosed but also the video records! An example of this demand is as follows:
1. Records written or recorded of any video conferences and/or telemedicine appointments and/or contacts and any records in plaintiff’s custody or control from any treating clinician since the outbreak of the coronavirus pandemic.
2. HIPAA-compliant authorizations for records of any treating clinician from whom plaintiff has sought treatment since the outbreak of the coronavirus pandemic.
“Records” of the visit may be legally construed to include any saved recording of any video or audio portion of your remote visit .
Rest assured that Rheingold, Guiffra, Ruffo, & Plotkin is taking extraordinary steps to reject these overbroad requests. Nonetheless, the courts will eventually have to rule on to what extent these treatment sessions are discoverable and potentially admissible in your case. Please follow these tips for treatment rendered to you during the pandemic:
- Audio or video discussions with your physicians may be discoverable. If you are the type of personality to downplay the extent to which your injuries impact your customary activities of daily living, such a sentiment, if expressed to your provider will likely cause the jury to conclude your injury is NOT worthy of substantial damages.
- Express to your provider your limitations so the record of the interaction clearly explains why you could NOT wait until the pandemic was over to address your concerns with your provider
- If you are treating with an unrelated provider, do not discuss the nature and effects of those injuries related to your accident. For example , if you have a consult for your ulcer with the gastroenterologist , don’t tell him or her about how your fractured spine from your construction accident is fairing. The gastroenterologist plays no roll in the care and treatment of that injury.
- Maintain your continuity of treatment. Masks, social distancing and sanitization will make your required visits safe and at an extremely low risk for viral infection. Maintaining a continuity of treatment during this pandemic will prove the significance of your injury and its impact on your daily life.
The attorneys at RGRP remain fully available to you during this time either via email, phone call, video or other form of remote consultation. All consultations are free. Please visit us www.rheingoldlaw.com for contact information as well as information regarding our attorneys, staff, and results.