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Safeguarding Your Business During PIP Litigation in New Jersey

WEINER LAWInsightsSafeguarding Your Business During PIP Litigation in New Jersey
Client Update: COVID-19 Information


Partner Gwyneth K. Murray-Nolan, Esq. continues her in-depth discussion as to how to reduce PIP claims.

The battle of discovery battles has begun. But where to start?

I started by subpoenaing for deposition every employee at plaintiff’s carrier who had ever touched the file in the entire two years of the plaintiff’s treatment, resulting in thirty-two of their employees being served personally with papers at their place of employment, and one very unhappy adversary. I did not care if an employee’s name came up once or a hundred times, I wanted to know how or why that individual authorized the plaintiff’s medical treatment.

Safeguarding your business in PIP Litigation

Next, I sent my adversary a Notice to Produce containing ninety-six (YES 96) counts, requesting every internal document ever conceived by the insurance company which would give some insight as to their policies and procedures for allowing the plaintiff’s treatment. I wanted to know each employee’s level of training, background, authority level, reasons for causation for the plaintiff’s treatment and how they reached their subjective findings which resulting in such mismanagement and waste of money.

I subpoenaed the PIP Adjuster Notes, privately contained on the insurance company’s internal computer system. I also wanted the LOTUS Notes, which are the parallel private notes from the Nurse Case Managers and Medical Directors employed by the insurance company through private contracts who are assigned to review the file and make medical decisions concerning each claimant. My adversary initially fought discovery at every angle- – – claiming that the subpoenaed insurance company employees were unavailable due to scheduling conflicts or had moved with no prior known address. I demanded from Human Resources the prior known address information and sent subpoenas to their home addresses. Twice I requested Case Management Conferences with our assigned pre-trial judge due to the willful delay tactics of my adversary. Both times, my adversary was ordered to provide the last known address of each and every employee so that the subpoenas could be served. Complying with my voluminous discovery demands was also part of the process.

At the End of the Day

After depositions of over twenty insurance company employees, I learned the following: there was a lack of causality of the injury and the medical treatment that the plaintiff received from the start. The plaintiff most likely had a pre-existing work related injury, which is what I had argued in the underlying action and resulted in a low settlement. None of the PIP adjusters ever read the office notes from the chiropractor or the physical therapist, which clearly related the plaintiff’s pain and injury to his heavy lifting at work, although all of the deposed PIP adjusters admitted that it was a required part of their job. Therefore, they had no knowledge of the plaintiff’s work history, or even the possibility that the plaintiff was potentially injured at work. The daily medical notes from plaintiff’s treating chiropractor, physical therapist and pain management doctor were scanned into and available on the auto insurance company’s internal system for every one of the thirty-two plus employees who had touched the file to review at anytime. When I questioned the Nurse Case Managers and Medical Directors in regard to the continued authority for medical treatment for a claimant who so obviously did not require it, they responded that reviewing the daily medical notes was not their job. They passed the buck onto someone else, and failed to take responsibility, despite the fact that they were the people with the leading educational background and the most authority.

No one Ever Bothered

No one contacted the insurance company’s internal fraud unit, because no one ever bothered to read the plaintiff’s daily medical notes. When I deposed the head of the fraud unit, he stated that he relies on tips and leads from the PIP adjusters and it is not his responsibility. Rather, it is the responsibility of the assigned adjusters to note potential insurance fraud or mistreatment by a claimant. In regard to the hierarchy of the system, without the initial lead, the fraud unit cannot just step into a case. Without a lead, he would never get to the file. This particular case was never investigated.

Had the case been investigated, certain incorrect information contained in the PIP file might have been corrected, and the “snowball” effect of continued unnecessary spending for needless medical treatment received by the plaintiff might have been stopped. For example, the claimant’s PIP application listed his employment as “office worker.” I questioned the PIP adjuster where that information came from. Perhaps the plaintiff’s attorney in the underlying suit. Perhaps the plaintiff. Eighteen depositions later and no one actually knew. I asked the hypothetical, “If you knew plaintiff was doing heavy lifting at work, would you have done some investigation as to his background?” All agreed, of course. But each of the interviewed employees of plaintiff’s carrier believed that the plaintiff was an office worker, sitting at a desk all day, and thus, no need to further investigate the nature and source of his alleged injury. Not one single employee knew that plaintiff’s actual occupation involved heavy lifting on a daily basis.
I also asked each adjuster, Nurse Case Manager (“NCM”) and Medical Director (“MD”) deposed if each had ever spoken to the plaintiff. No. No one from the insurance company had ever personally spoken to the plaintiff. Why? Because he had a lawyer for the underlying case. Therefore, his own insurance carrier was denied the ability to speak to him about his injuries and instead was directed to speak to his attorney. The same attorney that recommended the plaintiff to his medical providers. Something is broken about this system when the PIP adjusters were never even able to speak to their own insured because he had an attorney by the time he started receiving medical treatment; the same attorney who recommended the plaintiff to the treating providers who over-treated the patient.

The PIP adjusters that I deposed stated that after the initial determination is made that the injury is “causally related” to the accident and the claimant is authorized the initial treatment, the claimant is then placed into a flow chart called the Care Path Guidelines. The Care Path Guidelines dictate the claimant’s nature of injuries and specifies the acceptable path of treatment. Once involved in the Care Path Guidelines and placed on a particular “path”, the hands of the adjuster to whom the claimant’s file is assigned are tied in terms of additional treatment. As long as the treatment received by the claimant falls within the Guidelines, the adjuster has little authority to make any decisions in regard to the medical care received by the claimant. Each PIP adjuster is assigned to a team of Nurse Case Managers and Medical Directors, who take their orders from the PIP adjuster. The Nurse Case Managers and Medical Directors review medical decisions only at the request of the PIP adjuster, and only if the PIP adjuster thinks that a certain medical treatment does not follow the Care Path Guideline assigned to a claimant. Therefore, if a claimant’s treatment always follows the assigned Care Path, the Nurse Case Manager and Medical Directors assigned to the file have no authority over the PIP adjusters. The only response from the NCM and MD is to authorize the treatment already authorized by the PIP adjuster, as long as the treatment falls within the scope of the assigned Care Path. Only when the treatment falls outside of the scope of the Care Path does a NCM or MD have any real authority to issue a rejection of the treatment, or make a request to the treating provider for additional information before the treatment is approved.

In the case of this particular plaintiff, he was initially misplaced on the Care Path, and thus, permitted excessive treatment over and above what was reasonably necessary and required. Medical expenses from various care providers were inflated due to the anticipated insurance cuts, but nonetheless, the bill sent to my clients was for the full amount, prior to any of the regulatory cuts to the bill usually made by agreement between plaintiff’s carrier and each medical provider.

Further, because this claimant followed the assigned Care Path, he was never sent for an Independent Medical Exam at any point. When I first received the underlying action and reviewed the medical records and daily SOAP (an acronym for subjective, objective, assessment and plan) notes provided, I was appalled at the plaintiff’s continuing treatment. At that point, he had been treating for almost a year, and it was clear to me that his complaints were not related to his motor vehicle accident, but rather were caused by lifting at work and lack of sleep due to his work schedule which did not permit his body time to heal. I wrote to the plaintiff’s handling adjuster at the plaintiff’s auto insurance company at that point and requested that plaintiff be sent to an Independent Medical Examination by his insurance company in light of my findings in his medical records. No response. I wrote again. No response. I received word that the assigned adjuster changed departments. I wrote to the new adjuster. No response. I wrote again. No response. Only when the thirty two subpoenas were served on the insurance company employees two years later was an IME ordered for the plaintiff by his insurance company.

As we are peeling back the layers in this case, the biggest and most costly issue still looms.

What did I do with the excessive medical bills and fees for this case?

Join us next month when we close the case of $185,000 of unnecessary medical bills.  Are you finding yourself in the same position?  Contact Gwyneth.

About the AuthorPartner Gwyneth Murray-Nolan, Esq.

Gwyneth K. Murray-Nolan is a Partner who specializes in a multitude of areas of litigation. In particular, Ms. Murray-Nolan advocates for clients in a variety of civil matters, commercial litigation/insurance defense, products liability, premises liability, construction, trucking, auto and consumer fraud litigation. She has extensive trial experience in a wide variety of jurisdictions and has tried cases up to $8 million in value and settled cases up to $25 million in value. Ms. Murray-Nolan also has significant experience with excess insurance claims and catastrophic injury claims, including spinal cord and brain injuries, and RSD/CRPS. Ms. Murray-Nolan will aggressively work with a seasoned panel of experts in accident reconstruction, biomechanics, human factors, and various medical fields to obtain the appropriate value of the case and work towards a resolution that best suits the client. Ms. Murray-Nolan will assertively handle the matter through completion, whether through mediation, settlement, or trial.


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