Drive-By Doctoring – Options for Protection of New Mexico Patients

Medical care should be patient not profit drivenA recent article in the New York Times regarding drive-by doctoring was both appalling and illuminating.  Since the article, there have been numerous related articles in other media outlets.  However, there has been little discussion of how patients should respond in these situations to protect themselves from what could easily end in financial ruin.

To be honest, we have not seen any calls from patients for this type of activity in New Mexico.  However, that certainly does not mean it is not present.  If it does happen here, there is a possible roadmap for the aggrieved patient. The map follows from the New Mexico Uniform Jury Instructions (NM UJI) related to medical negligence claims.

Out of Network – Out of This World Profits

For some background, an exceedingly brief and simplified synopsis of the New York Times article might be helpful.

The article discusses several cases involving what they refer to as “drive-by doctors.”  In one neck surgery case, a patient was blindsided with a $117,000 bill from an unknown assistant surgeon who he had never heard of, agreed to use, or entered into any kind of patient doctor relationship. In another case, a patient was charged by 10 different unknown medical providers for “services” in the 48 hours following his surgery.

The article points out that often unnecessary and/or redundant drive-by doctors are out of network allowing them to “bill 20 to 40 times the usual local rates and often collect the full amount, or a substantial portion.”   Many times the insurance companies will pay to protect their patients.  On other occasions, the patients are left to pay the uncovered expenses on their own.

Disputing the Drive-By Doctors’ Bills

It is important to dispute these bills.  The bill should be disputed with the relevant providers as well as your insurance company.

File a Dispute with Your Insurance Company

The first step is to dispute the charges.  As the New York Times article points out, many insurance companies will cover the charges for the patient.

File a Dispute with Your Medical Provider(s)

The second stop would be to dispute the bill with your medical provider.  After all, it is your medical provider that caused the situation.  Your medical provider has duties to you as a patient.  These duties are in fact codified in the New Mexico Uniform Jury Instructions.

Numerous Potential Violations of Duties in Drive-By Doctoring

There are some pretty glaring issues related to this practice such possible issues with fraud, breach of contract, misrepresentations and so on.  However, this discussion will focus on the breach of medical duties under New Mexico law.

The New Mexico Uniform Jury Instructions set forth numerous duties that would appear to apply to these situations.   These are very serious duties.  In a number of the cases mentioned in the New York Times’ articles (and other publications since), it appears that the cases would raise numerous issues related to violation of patient consent which gives patients considerable options for bringing claims for these practices.

Duty to Disclose the Need for Other Doctors

In the cases discussed, one seemingly common thread is that doctors are brought in because of their specialized expertise and knowledge.  Granted this is often necessary.  However, it is not to be done in such a deceptive manner.  And it should be done with the proper advice to the patient.

There is a jury instruction on point.  NM Jury Instruction §13-1103 reads:

“If a treating doctor knows, or should know, that a doctor with other qualifications is needed for the patient to receive proper treatment, it is the duty of the treating doctor to tell the patient.”

This alone would seem to preclude the drive-by doctor practices in New Mexico.  However, this much more to it with the issue of patient consent looming large and posing some potentially serious issues for the offending doctors and other medical providers.

Informed Consent

The most fundamental duty under New Mexico law related to informed consent under NM UJI §13-1104A reads:

“A doctor has a duty to obtain the patient’s informed consent, [or the patient’s representative’s informed consent,] to [treatment] [an operation]. For consent to be valid, it must be based upon information which a reasonably prudent patient would need to know in deciding whether to undergo the [treatment] [operation].”

The pertinent language is underlined.  It seems fair to conclude that most patients would want to know that an unknown doctor might hit them with an $117,000 bill for virtually no involvement in their care.

It should be noted that under NM UJI §13-1105, consent may be expressed or implied, written or spoken.  However, it must be the case that a reasonable person would believe the patient has consented.  It is hard to imagine how consent might be implied in one the cases mentioned in the article.

Failure to Obtain Consent is a Legal Wrong (Actionable and Compensable)

The New Mexico jury instructions are not subtle on this point; §13-1109A states:

“Every adult of sound mind has a right to determine what shall be done with [his] [her] own body. A doctor who [performs an operation upon] [medically treats] [examines or touches] a patient without the patient’s prior consent commits a legal wrong for which [he] [she] is liable in damages.”

In addition to the jury instruction, the cases clearly indicate that “treatment without consent is tortious.”  In other words, this behavior by drive-by doctors and the medical providers who encourage or otherwise allow it to happen may be sued in tort.

Failure to Obtain Consent is a Tort and Damages Presumed

As mentioned, failure to obtain informed consent is a tort for which a patient may sue the medical provider(s).  There may be plenty of blame to go around as this practice seems to growing and based on a deliberate business profit model.

Better yet for patients, the violation alone is sufficient to justify an award to the injured patient.  No actual harm must be shown.  In short, the doctor, doctors, facilities, hospitals, and other medical providers engaged in this practice cannot simply waive the bill and declare no harm, no foul.

NM UJI §13-1109C addresses damages in a case involving lack of consent.  It is worth reading in its entirety, both for patients and for medical providers who choose to go down this road.  It reads as follows:

“A patient need not prove that [he] [she] was physically harmed by the [operation] [treatment] [examination or touching] [procedure] to recover damages resulting from the doctor’s failure to obtain the patient’s consent. Damages may be awarded solely because the doctor’s action was not consented to.”

Purely Profit Driven Practices

The great majority of doctors and other medical providers are competent, caring and honest.   The great majority make patient care decisions based upon the medical needs of the patient.

In many cases, specialist or other expert assistance is necessary.  However, it should be done correctly and fairly and not as portrayed by the New York Times article.  When it is, in New Mexico at least, it seems that there are a number of avenues available for the protection of the patient.

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