Thursday, April 12, 2018

Cappers - Really?!?

Merriam Webster defines "capper" as "one that caps," meaning "a device that fits caps on bottles," or a "finale, climax, or clincher." That one is less than relevant. A second definition is a "lure or decoy especially in an illicit or questionable activity." It is not a term that we hear everyday in this century. It has come up in legal parlance, with "capper" and "runner" sometimes being used interchangeably. Essentially, these are people that directly contact potential clients and either recommend a particular lawyer or actually procure contracts of representation.

A California attorney, David Ricks, warns that there are those who may approach accident victims, try to "earn the victim's trust," and sign them up for representation by an attorney. He also calls them "ambulance chasers." I have heard of such activities. In fact, in a recent conference discussion, I learned that California now statutorily requires an actual conversation between an attorney and injured worker clients. Read about that in California on my Mind. One conference attendee to which I spoke expressed a suspicion that the statutory requirement was driven, in part, by California cappers. The instance described by Mr. Ricks involved a capper paid piecemeal for signing up a injury victim, "$300 for each case she signed up and a bonus for a substantial recovery." 

A few years ago, an attorney in Texas alleged that there were "public adjusters acting as cappers for attorneys." Chip Merlin wrote that such activity was illegal. He asserted that if such behavior was proven, then the adjuster "should lose their licenses and go to jail." There are various lawyers on the Internet speaking out against this practice. 

Capping is not an issue unheard of in Florida. I have heard radio advertisements in Florida in which attorneys decry the practice. One ad even suggested that the advertising law firm might be able to help someone sue a former lawyer who recruited them through a capper or runner. The attorney proclaims the inappropriateness of the activity, and then suggests a free consultation to examine whether the advertising firm might either recoup the fees paid to, or sue for malpractice, a capper-friendly former attorney.

According to Adjustercom.com a California county recently filed criminal charges regarding the employment of cappers. The site claims charges were filed "against ten notorious applicants’ attorneys who represent alleged injured workers in workers’ compensation cases." Allegedly, two cappers produced and distributed advertisement, operated a "call center in El Salvador," and when calls were received the operators "persuaded callers to sign up with the racket’s lawyers." Those cappers allegedly face potential criminal sentences of over 20 years. 

WorkCompCentral reported in January that a Federal Judge had ordered restitution in a capper scheme that instead involved doctors, not lawyers. In that case, the indictment alleged that a "scheduling service" referred "injured workers to providers who in turn agreed to order a minimum number of procedures from companies." The medical providers "were required to meet a quota" regarding the provision of medical procedure or diagnostics. Thus, medicine for money, not necessarily for patient improvement.

The federal judge ordered the capper to pay $140,000 received through the scheme, and ordered the CEO of Prime Holdings International to forfeit over $1 million. The CEO also may have had ownership interests in some of the suppliers of medical testing, to which the physicians referred patients. The two had previously pleaded guilty, one for "conspiracy to commit honest services mail and wire fraud" and one for "conspiracy to deprive patients of the right to the honest services of their doctors." Get that, "honest services mail and wire fraud," sounds a bit oxymoronic, no?

The "referral scheme generated net income of more than $5 million over a two-and-a-half year period. And, it generated "more than $9.5 million in bills for services sent to workers’ compensation carriers." The two implicated others in the scheme including a radiologist that owned an imaging practice and a chiropractor. The radiologist was recently convicted "on 39 counts for his role in the scheme." Slowly, the criminal justice system will undoubtedly pursue those involved. Crime will lead to conviction, then to jail, and hopefully to restitution.

In coming months, the participants in this "capping" scheme will be sentenced. A significant amount of money has been ordered in restitution, but it is unknown how long collection of that money may take. Unfortunately, history suggests that a fair number of dollars will never be collected from those who engage in criminal activity. The waste they create will as likely be laid at the feet of society through higher costs for services or insurance or both.

The dollars represent a cost. But what of the time? See, while each of those tests was being performed unnecessarily because of some incentive, rebate, or kickback, some legitimate patient in need sat and waited. The waste, fraud, and abuse of this capping scheme caused financial injury, but it impacted legitimately injured people who needed services. Medical care, treatment, is often dependent upon testing that confirms or refutes pathology. Doctors order it and then they wait for the data it is intended to provide. While the doctor waits, so waits the patient.

Would you select a doctor because a stranger approached you after an accident?  For that matter, do you select a physician because your neighbor "heard she/he is good?" Hopefully, you select a doctor based on performance. In the age of the Internet, so much information is available about physicians. I recommend reading Dr. Robert Pearl's Mistreated in this regard.

Should your selection of an attorney be different? Should you be influenced by the "capper," "runner," or "ambulance chaser" that appears uninvited and unexpected at your accident, hospital, or home? Should you consult the attorney with the most billboards, radio ads, or bus benches? Should you pick the one with the winning smile, the pretty hair, or the fanciest office? Or, should you take the time to do some research, to evaluate performance, to check references? Do you care about their looks, advertisement, or performance?

In the end, selecting a physician or attorney is a personal choice. There are a multitude of ways to approach and conclude that choice, and the "right answer" may not be the same for everyone.  But as much as it is a personal choice, people should remember it is also an important choice. These professionals can help with injury and disease, recovery and planning, well-being and personal peace. Choose well, insist on their patience, communication, and explanation. Demand the respect and attention that you deserve.

And beware of uninvited, unexpected, strangers bearing contracts.

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