"Attorney Doesn't Want FCE Report if Less-Than-Full Effort"
Posted on Thu, Oct 13, 2011 @ 10:30 AM
I have been doing many FCE's for the hospital where I work and we have one particular client (an attorney) for whom we do lots of them. We just had a meeting with one of the attorneys from our client's office and he has requested that if an FCE has come out as invalid or shows poor effort or reliability that I call him before generating a report in order to give him a heads up. He will then decide if he even wants the report at all - obviously if it doesn't look good for the client he will decline it. We would still get paid for the FCE, of course, and keep all the raw data for our records.
Can he do this legally? What is my liability if I do an FCE and don't generate a report? I will certainly document in the record if I don't do a report and the reason (i.e. at attorney's request a report was not generated as it was deemed that this FCE was invalid - or words to that effect).
His other request was that if we see something inconsistent or we see poor effort that we give the client another chance and explain to them what we are looking for. I do think that is reasonable to a certain degree and I try to do this whenever possible. I do not want to compromise my ethics in doing these FCE's and will continue to report what I find and observe. If this is a reasonable request from this attorney I will consider it.
It is all such a learning experience! Thanks for your input!
A couple of points in response to your question:
- In higher level cases, or in states where effort/participation has effect in the workers' comp code, attorneys have been known to ask that details of tests, and the report, not be submitted to the client or the attorney. The reason for this is that if the document has never been in the possession of the attorney then it is not 'discoverable'. This shields the information from attorneys on the 'other side'.
- An attorney asking for information to be withheld in the case of his client not giving full effort is actually quite smart. Why would an attorney want to represent a person who is undercutting his case? This is especially true when the attorney is working on a contingent fee.
That being said, there may be some aspect of HIPAA here. Most workers' compensation information is not part of the HIPAA regulation, but if it were (and there may be other applicable law), you as a health care provider may be barred from releasing information to anyone not designated by the client (meaning the injured worker).
One thing I recommend you do is adopt a policy that is consistent in all FCEs. That policy describes the protocol you use in instances where an evaluee is not giving full effort.
If you are ever questioned in a deposition (out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes), you want to be able to say that you treat all clients the same. That is you respond at the same time, in the same way, every time you see less-than-full effort.
It should not be the policy that you only respond sometimes or with clients of particular attorneys.
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