On July 12, 2006, the Wisconsin Supreme Court issued its decision in Hanson v. American Family Mutual Insurance Company. In Hanson, the Court held that once a jury concludes that the plaintiff was injured in an accident, the plaintiff was entitled to all of her past medical expenses as a matter of law, regardless of whether the treatment was necessary, as long the plaintiff exercised ordinary care in selecting her doctor. After discussing the background and holding of theHanson decision, this article discusses the questions Hanson leaves open as well as arguments to attack Hansonaround the edges.
The plaintiff, Jo-El Hanson, was rear-ended by the defendant driver, who was undisputedly 100% at fault for causing the accident. Hanson was diagnosed with a cervical strain with nerve involvement, including cervical radiculopathy. Hanson saw two neurosurgeons. The plaintiff’s neurosurgeon determined that the C4-C5 and C5-C6 disks were causing Hanson’s neck pain. The neurosurgeon recommended and performed back surgery on Hanson.
Because the defendants did not contest liability, the key area of contention at trial was the extent to which the accident caused Hanson’s injuries. The defendants argued that Hanson’s surgery was unnecessary. The defendants’ expert, a neurosurgeon, testified that the surgery was not necessary. On cross examination, the defense expert testified that unnecessary surgery “can be malpractice, but it is not necessarily malpractice.” Defendants’ expert also testified that the plaintiff’s neurosurgeon was incompetent in making the diagnosis that led him to perform the surgery.
It was not disputed at trial that Hanson went to her surgeon because of the accident, and that she acted reasonably and in good faith in following her doctor’s recommendation to undergo surgery. At trial, Hanson’s surgeon testified that the surgery was necessary and that the accident caused her spinal injury.
The jury awarded $25,000 in past medical expenses, $7,250 for past loss of earning capacity, nothing for future medical expenses, $15,000 for past pain, suffering, disability, and nothing for future pain, suffering, and disability. The past medical expenses award was approximately the amount of Hanson’s medical expenses incurred after the accident, but excluding the surgery.
Hanson filed motions after verdict requesting that the court award all of her past medical expenses, award her past loss of earning capacity, and increase the award for past pain, suffering and disability to reflect the increase in past medical expenses. The court denied the motions and Hanson appealed. The court of appeals reversed. The court of appeals concluded that, because the jury found Hanson was injured in the accident, she was entitled to “all of her medical expenses related to her original injury, provided that she exercised good faith and due care in selecting her treating physician.” The defendants’ expert had agreed that Hanson exercised good faith and due care in selecting her surgeon.
The Wisconsin Supreme Court affirmed. It held that because the jury concluded that Hanson was injured in the accident, she was entitled to all her past medical expenses, regardless of whether the medical treatment was necessary. The court based its holding on a line of cases starting with the 19th century case of Selleck v. Janesville, 100 Wis. 157, 75 N.W. 975 (1898). Selleck held that tortfeasors are responsible for aggravation of the plaintiff’s injuries caused by mistaken or unnecessary treatment.
In Hanson, the Supreme Court stated that the key question was whether the treatment arose from an initial injury that was caused by the accident, not whether the contested treatment itself was caused by the accident. Once it was determined (or conceded) that the plaintiff sought treatment for an initial injury caused by the accident, any subsequent treatment should be awarded as a matter of law. The Hanson decision eliminates the defense that a plaintiff over treated.
II. Getting Around Hanson
Hanson has eliminated a popular and effective defense. Defendants can no longer simply argue that a plaintiff’s past medical treatment was unnecessary. Cases sharing similar facts with Hanson in which a plaintiff undergoes an unnecessary operation in good faith do not represent the biggest threat from Hanson. The larger issue involves those soft tissue injury cases in which the plaintiff undergoes extensive and unnecessary “conservative” treatment such as physical therapy, and, to a much greater extent, chiropractic, and massage therapy. Because these treatments feel good and offer at least temporary benefits, plaintiffs are much more likely to continue receiving the treatment as long as they can.
Hanson does leave defendants with three arguments to avoid liability for unnecessary treatment: (1) that the plaintiff did not use ordinary care in selecting his or her medical provider; (2) that the plaintiff was not injured at all in the accident; and (3) that the treatment was for something other than injuries caused by the accident, such as for a pre-existing condition or subsequent unrelated injury.
A. Argue That The Plaintiff Did Not Act Reasonably Or In Good Faith
Hanson did not elaborate on the plaintiff’s duty to select a provider in good faith. This prerequisite to recovering past medical expenses appears calculated to weed out instances in which the plaintiff colludes with a medical provider, and possibly cases in which the plaintiff should have known at the outset that the provider was incompetent.
Thus, to show that the plaintiff did not select his or her provider in good faith, defense counsel will need to focus on the plaintiff/provider relationship. This will entail discovery regarding how the plaintiff selected the provider. Was it an attorney referral? A family friend? A billboard advertisement? Obviously, attorney referrals raise the possibility that the plaintiff did not select the provider in good faith. Discovery could then be conducted to show that the provider is claiming a lien in the litigation proceeds, bills the plaintiff’s counsel directly instead of billing the plaintiff, does a lot of litigation work, or typically writes off or compromises unpaid bills if litigation isn’t successful. The goal, of course, is to show that the plaintiff’s selection of medical provider was motivated more by a desire to build a good case than to obtain effective medical treatment.
Short of not colluding with a provider, what else is required of a plaintiff in selecting a health care provider? Are tortfeasors now on the hook for all sorts of alternative medical treatments the plaintiff might submit to? Does a plaintiff act reasonably and in good faith in seeking acupuncture treatment? Chelation therapy? Nutritional supplements? Aromatherapy? Or must the proposed treatment meet some minimum threshold of scientific and medical acceptability? In addition to arguing that these various methods of treatment are ineffective, defendants will now have to argue that they are so obviously ineffective that the plaintiff acted unreasonably in submitting to treatment in the first place. Chiropractic treatment, unfortunately, is well enough accepted by certain segments of society that it will be difficult to argue that the plaintiff acted unreasonably in initially seeking chiropractic treatment.
Defendants can also argue that the plaintiff’s duty to act reasonably applies to the continuation of treatment as well as the initial selection of a medical care provider. This issue did not arise in Hanson because the questionable treatment was a single surgery. However, in the case of a plaintiff who continues to submit to chiropractic or other questionable treatments despite receiving little lasting benefit, the plaintiff should arguably have a duty to act reasonably and in good faith in continuing to treat. This argument goes hand in hand with arguing for a more robust duty to mitigate damages. While, according to Hanson, a plaintiff should not be penalized for reasonably following a doctor’s orders, neither should a tortfeasor be required to pay for medical expenses that could easily have been avoided had the plaintiff acted reasonably.
B. Argue That The Plaintiff Was Not Injured At All In The Accident
In Hanson, the defendants did not contest the course of treatment from the accident until the surgery. Therefore, the defendants could not successfully argue that Hanson was not injured at all in the accident. In most automobile collision cases, it will be extremely difficult to show that the plaintiff did not suffer at least a mild muscle strain or headache as a result of the accident. Under Hanson, the defendant will be responsible for whatever course of treatment the provider recommends for the strain or headache.
In an appropriate low force impact case, however, defendants may be able to successfully argue that the plaintiff was not injured in the accident. Hanson may thus require defendants to rethink their answers to plaintiffs’ requests to admit the reasonableness and necessity of medical treatment. To preserve the argument that the plaintiff was not injured in the accident, the necessity of even ambulance and emergency room treatment should be denied.
C. Argue That The Treatment Was For Something Other Than Injuries Caused By The Accident.
The defense that the plaintiff’s course of treatment was caused by a preexisting condition is not new. After Hanson, this defense will likely supplant the argument that the plaintiff’s treatment was entirely unnecessary. In addition to the typical arguments that the treatment was occasioned by a previous injury or a preexisting degenerative condition, it may be possible to argue that some questionable treatment is necessary for overall health and well being. For example, many chiropractors will likely testify about the general health benefits of receiving adjustments and will readily admit that their services are valuable to patients who have not been injured in accidents. This is also true of holistic medicine, which is premised on treating the person as a whole instead of addressing isolated symptoms.
D. Other Responses To Hanson
In addition to the three defenses explicitly left open under Hanson, defendants may consider several other responses when the plaintiff has received unnecessary treatment. One possibility is to join the health care provider as a party to the lawsuit. The policy rationale behind Hanson is that the plaintiff should not be punished for reasonably following a doctor’s advice when that advice turns out to be wrong. There is no similar policy concern in favor of the health care providers’ claim to compensation for providing the unnecessary services. Doctors who perform unnecessary treatment are liable for over treatment that rises to the level of medical negligence.
Joining health care providers into the lawsuit could be procedurally problematic. The initial tortfeasor has no contribution rights against a medical provider who provides unnecessary treatment. Rather, the right is one of subrogation. Subrogation rights only accrue after the subrogee has made the payments. Thus, a defendant's subrogation cause of action against a provider can terminate before it accrues. Finally, a medical malpractice claim against a medical care provider is subject to the procedural requirements of Chapter 655, including the mediation requirement in § 655.42, and § 655.443, Wis. Stats.
Lastly, it might be possible to attack Hanson’s relaxed requirements by challenging the subrogation rights of involuntary plaintiffs that have already paid for the unnecessary treatment. Unlike a defendant tortfeasor, health insurers and, to a lesser extent, other first party insurers are in a position to more closely determine what procedures they will pay for. Once the Wisconsin Supreme Court is faced with the practical consequences of the Hanson decision, it may want to pull back slightly, as it has done with regard to reducing clauses in the UIM context. The Supreme Court might be persuaded to hold that the policy rationale behind Hanson does not apply when a health insurer or other subrogated party is attempting to enforce its subrogation rights for an unnecessary course of treatment. If the Court crafts a reasonableness requirement for subrogated involuntary plaintiffs, it is certainly arguable that they should be held to a higher standard than are injured plaintiffs. To the extent the health insurer enables the plaintiff to continue receiving unnecessary treatment by paying for it, those payments should be considered voluntary payments, for which there is no right to subrogation.
Although the Hanson decision has effectively eliminated the argument that a plaintiff over treated, it left open several arguments to prevent plaintiffs from intentionally incurring excessive and unnecessary treatment. Dogged pursuit ofHanson’s fringes could, in turn, convince the Wisconsin Supreme Court to interpret Hanson narrowly to limit its practical consequences.
Mr. Woehl is an associate at Kasdorf, Lewis and Swietlik in Milwaukee where he practices appellate law, civil litigation, insurance defense, and premises liability. Mr. Woehl is a 2000 cum laude graduate of the University of Pennsylvania. He graduated from Carleton College with a B.A. in Philosophy in 1997.