Thursday, August 25, 2011

Challenging Economic Damages

           In virtually every personal injury case, the current trend of rising costs of healthcare is illustrated by the economic, or “special,” damages sought by plaintiffs. More often than not, the vast majority of these medical costs stem from physical therapy or chiropractic treatments. In many cases, especially at the District Court level, defense attorneys must decide whether the expense of an independent medical evaluation (“IME”) or peer-review of the plaintiff's medical records is worth incurring in order to challenge medical fees and costs. Challenging such fees is necessary, however, when they seem excessive or unreasonable, either in scope, duration or cost per visit, even in the most minor cases. Judges in Circuit and District Courts throughout Maryland are aware of these current trends in medical treatment, especially by certain providers known to dramatically over-inflate their fees, and are receptive to arguments regarding excessive or unreasonable medical costs, even without the aid of an IME or peer-review report.

           Recently, in the District Court of Baltimore County, Associate Derrick Dye argued that the Plaintiff’s alleged “specials” of over $5,000.00 were excessive and unreasonable, as the Plaintiff only received 11 physical therapy treatments.  Although the liability of the Defendant was stipulated, Mr. Dye argued that the fees charged of over $400.00 for each physical therapy visit, and the 11 visits themselves, were excessive and unreasonable for a very minor “fender-bender” in a shopping center parking lot that resulted in no property damage to either vehicle.  Although the Plaintiff’s pre-trial settlement demand was $23,500.00, a Baltimore County Judge awarded the Plaintiff only $1,500.00 in “specials,” which was less than 1/3 of the physical therapy bill.

           The reasonableness of the medical fees and costs and the necessity of the treatment in a given case can almost always be evaluated by conducting a “common sense” assessment at its outset.  Competent defense counsel must always keep in mind that, regardless of the amount for which a plaintiff sues, if the medical fees and costs seem excessive and unreasonable, they probably are!

Article contributed by James Buck

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