Just because you can, doesn’t mean you should.
The Appellate Division of the Second Department has an important decision for anyone involved with NY No-Fault billing, arbitration, litigation or collections.
The full text is here:
http://www.courts.state.ny.us/courts/ad2/Handdowns/2020/Decisions/D62683.pdf
Allstate v. Kapeleris involves a situation where, among other things, the patient and the doctor both signed a valid AOB.
After Allstate denied payment to the doctors, the doctors billed the patient, despite having a valid AOB on file.
It is critical to note that the doctor never filed any arbitrations or lawsuits over the disputed bill.
The patient resolved those bills through their personal injury attorneys, possibly at a reduced rate or percentage as is common in the resolution of liens.
The patient then filed an arbitration in their own name to get reimbursement from Allstate for what they paid the doctors.
The patient won, which in standard situations, would have included payment of interest to the patient.
If the patient had not won back the full amount paid to the doctors, there may have been a malpractice issues for their attorney because they paid the doctors with their client’s money, risking being unable to collect for the patient.
Allstate initiated a series of master arbitrations and appeals that lead to the decision I linked above.
For years I have been counselling and advising my clients, the medical facilities, that this is not the best way to go.
And I believe that this case supports my conclusion.
I have advised countless doctors and practices to file their own arbitrations or lawsuits and leave the injured person and their attorney out of it.
Had the doctors filed their own arbitrations they are equally likely to have won as the patient was.
After winning, they would have received payment in full, plus interest at 2% per month from filing.
As far as I can see from this case, the doctors here had to wait until the end of the personal injury case, which can take years, to receive no more than what someone else’s lawyer agreed to give them.
Had these doctors used an experienced no-fault firm to arbitrate, they could have gotten expedited arbitration, settled at a percentage that they and their lawyer thought best, or proceeded to a hearing to win full payment plus interest.
An important part of that process is that the medical facilities would have had their own lawyer, who would have been looking out for their interest, and proceeded in a way that was agreeable to the medical facilities.
Of course, the master arbitrations and appeals seen in this case would not have occurred because there would have been no possible violation of the Department of Financial Services guidance on AOBs.
All things considered I still stand by my general advice to medical facilities to have their own lawyer, who is a no-fault specialist, who files the lawsuit or arbitration on behalf of the facility, and who is answerable to no one but the doctor.
Of course, every case and every practice can be different and no one should get legal advice from a website, they should call their own lawyer.
As always, I am here to help if you need me.