Congratulations to Tiffany M. Shrenk, Esq. for being recognized as a Top Lawyer in the field of Personal Injury by Main Line Today in 2022. Each year lawyers around the Main Line and western suburbs nominate their colleagues for recognition as a Main Line Today Top Lawyer. Tiffany has been recognized as a Main Line Today Top Lawyer in the field of personal injury since 2019.
car accident injury
Lacy v. Bayhealth Medical Center: Delaware Superior Court Expands Stayton ruling to TRICARE Liens
By: Tiffany M. Shrenk, Esq.
In Lacy v. Bayhealth Medical Center, C.A. No. K20-10-005 NEP, the Delaware Superior Court ruled that a former serviceman pursuing a medical malpractice claim was barred from recovering the full amount of his medical bills, and instead, was limited to recovering only the amounts paid by his government health insurance carrier, TRICARE.
Traditionally, Delaware state law did not provide for limiting a plaintiff’s medical expenses to the amount actually paid. This was because Delaware law has followed the collateral source rule, which provided that the defendant would not receive the benefit when the plaintiff receives compensation for the injury from an independent source, such as the plaintiff’s health insurance plan.
This rule was altered by the Delaware Supreme Court’s decision in Stayton v. Delaware Health Corp., 117 A.3d 521, 526 (Del. 2015), which determined that a Medicare beneficiary would be limited to recovering only the amounts of medical expenses paid by Medicare rather than the full amount billed by the medical provider. This ruling was expanded to a Medicaid beneficiary in Smith v. Mahoney,150 A.3d 1200 (Del. 2016). In Stayton and Smith, the Court recognized the collateral source at issue as government-sponsored health insurance programs.
At issue in Lacy was payments made for medical expenses by TRICARE, which the Court explained is” a Department of Defense healthcare program for active duty servicemembers, active duty family members, retirees and retiree family members, survivors, and certain former spouses worldwide.” In comparing TRICARE to Medicare and Medicaid, the Court found no compelling reason to differentiate TRICARE from Medicare or Medicaid in the collateral source context. TRICARE like Medicare and Medicaid was found to be dependent upon taxpayer funds. Given the public nature of the fund, the benefit derived by the write-offs taken by the medical providers were not determined to be benefits to the injured plaintiff, but instead viewed as benefits to the taxpayers.
The effect of Stayton, Smith, and now Lacy, is the limitation of medical expenses that can be recovered in a personal injury case when the plaintiff is a Medicare, Medicaid, or TRICARE beneficiary. With the Lacy decision, a injured plaintiff who has his medical bills paid by his TRICARE health insurance plan, can only seek to recover what has actually been paid while those with private insurance can recover the full amount billed by a provider for his medical expenses.
Tiffany is a partner at MacElree Harvey, a full-service law firm serving Delaware and Pennsylvania. Licensed to practice law in Delaware and Pennsylvania, Tiffany represents clients in personal injury cases, trust and estate litigation, adult guardianships, and real estate litigation. She joined MacElree Harvey in the summer of 2016 and spends her time in the Centreville, Delaware office and the Kennett Square office. Contact Tiffany at (302) 654-4454 or tshrenk@macelree.com to discuss your car accident or other personal injury matter.
WHAT TO EXPECT AT YOUR DEFENSE MEDICAL EXAM?
WHAT TO EXPECT AT YOUR DEFENSE MEDICAL EXAM?
Often during the course of your personal injury case, you will be scheduled to meet with a doctor chosen or designated by the defense attorney. This event is referred to as a “Defense Medical Exam” or an “Independent Medical Exam.” This is the opportunity of the defense to have you examined by a doctor who will act as the defense medical expert and provide his/her own opinions concerning injuries you suffered in the accident and the course of treatment that you have undergone.
Here are some helpful tips to consider prior to attending your Defense Medical Exam:
- The Doctor is Not Neutral. Although these examinations are often referred to as an “Independent Medical Examination”, you should view the doctor as the defense team’s hired expert. The doctor is hired and paid by the defense, and there are many doctors who make a substantial living off of acting as defense experts and performing these examinations rather than treating patients. More often than not, the defense doctor will provide an opinion favorable to the party who has hired him/her so you should not expect that the doctor will be a completely neutral actor.
- The Doctor is Not Going to Provide Treatment. The role of the defense doctor is to interview you, examine you, review your records and provide an opinion. The defense doctor is not going to prescribe for you or provide you with a plan of care. The purpose of the examination is for litigation purposes only; it is not to provide you with additional treatment.
- Format of the Exam. The portions of your appointment with the defense doctor will be an interview and a physical examination. The defense doctor will also review your medical records, but he/she will complete the review of records either before or after the appointment. For the interview portion of the examination, you will be expected to discuss with the doctor how the accident occurred, your medical treatment, your symptoms, your restrictions, and any prior or subsequent injuries you have suffered.
- How to Prepare For the Exam. There is no preparation necessary for the examination, but it is a good idea to review your medical diagnoses, summary of medical treatment, and be comfortable explaining how the accident occurred and history of your injuries and treatment. Your job during the examination is to be honest and provide a truthful responses. You should be able to be descriptive of your injuries and symptoms, but not over exaggerate.
- No Visitors Allowed. While in other neighboring jurisdictions, plaintiffs can bring a chaperone or be accompanied by their attorney’s paralegal to the appointment, Delaware does not allow you to bring a chaperone or support person into the examination room with you. In rare situations where the plaintiff is a minor or suffers from a disability, the court would allow a parent or support person, but as a general rule of thumb, for Delaware cases a chaperone cannot go into the examination with the plaintiff.
Keep in mind, even if you receive an unfavorable report from the defense medical expert, your attorney can have your own medical expert review and rebut the defense medical expert’s opinions. So while it may seem like the cards are stacked against you, you will have your own medical expert to support your injury claim at trial who will most likely be a treating physician who is much more familiar with you, your treatment, and your medical history.
Tiffany is a partner at MacElree Harvey, a full-service law firm serving Delaware and Pennsylvania. Licensed to practice law in Delaware and Pennsylvania, Tiffany represents clients in personal injury cases, trust and estate litigation, adult guardianships, and real estate litigation. She joined MacElree Harvey in the summer of 2016 and spends her time in the Centreville, Delaware office and the Kennett Square office. Contact Tiffany at (302) 654-4454 or tshrenk@macelree.com to discuss your car accident or other civil litigation matter.
Treatment Options during the Coronavirus Outbreak
I hope this finds you safe and healthy. While many of us are under stay-at-home orders and limiting our public exposure due to the Coronavirus pandemic, it is important to know what treatment options are available to those who have bodily injury claims. There are still treatment options available for people suffering from motor vehicle accident injuries or premises liability injuries so that they can still have the continuation of treatment that is important for a successful bodily injury claim.
Virtual medical appointments have become the new norm for treatment of non-urgent conditions. Orthopaedic practices have informed us that they are able to see patients using telemedicine. We also know that family doctors are using virtual appointments to treat patients. Clients have still been able to receive scripts for MRIs and EMG studies and have those tests performed. We have also heard from many of our clients that they have been able to continue their physical therapy appointments by taking advantage of virtual physical therapy appointments.
Virtual medical appointments are a great way to ensure that your injuries are being treated and have the continuous documentation of your injury. Adjusters use gaps in treatment to try to devalue your claim by arguing that the gap in treatment shows the injury resolved and that treatment after a gap in treatment is not related to the motor vehicle accident or incident. To ensure you have a successful claim, make sure to speak with your doctor or physical therapist about virtual appointments and prevent gaps in treatment.
We also recommend our clients keep a daily pain journal, which is something that can be done while you are at home and social distancing. The pain journal documents what symptoms you are experiencing and how your injuries are impacting your daily activities. The pain journal is a great tool for documenting ongoing symptoms and will help your personal injury attorney explain the negative impacts your injuries have had on your lifestyle.
If you have questions regarding a bodily injury claim or finding treatment for your injury, contact us so that we can help you navigate this process. Be well!