Put Your Money Where Your Mouth Is

Today’s case topic — medical expert cancellation fees! We are all pretty familiar with (1) the exorbitant price of a doc’s deposition and (2) cancellation fees of that doc’s deposition varies depending on how near or far away you cancel from the date of the deposition.

So what happens when an employer makes a settlement offer to a claimant when the doc’s cancellation fee is at 50%, but Claimant accepts a week later and the fee raises to 100%? Is the employer responsible for the fee at the time it made the offer or when Claimant accepted it?

ANSWER: Stay tuned . . . because in Harold Daniels v. State, 2020 WL 3971389 (Del. Super. Ct. June 22, 2020) (Medinilla, J.), the Superior Court reversed and remanded the IAB’s decision that Employer was not required to pay the 100% cancellation fee.

There, Claimant scheduled the deposition of its medical expert for a DACD hearing. Nine business days before the deposition, Employer made a settlement offer to Claimant. After confirming that Employer would pay the deposition cancellation fee (if incurred), counsel for Claimant told Employer she would confer with Claimant about the offer. A week later, Claimant accepted the settlement offer and submitted the cancellation fee invoice to Employer which totaled 100% of the doctor’s deposition $2,000 fee. Employer argued that it only agreed to pay a “reasonable and necessary” fee and if Claimant had accepted the offer earlier, then the cancellation fee would have only been 50% ($1,000). Claimant argued Employer was obligated to pay the fee assessed against him when they reached their settlement agreement and he actually cancelled the deposition. At the legal hearing, the IAB did not expressly address the reasonableness of the fee but determined that any additional cancellation fee “may not have been necessary” where Claimant may have delayed his acceptance of Employer's offer and that the acceptance and cancellation policy “could have been made clear earlier . . . .” The IAB denied Claimant’s request Employer pay 100% of the cancellation fee.

On appeal, the Superior Court held that the IAB Order was silent upon what authority the Board relied for its determination that the cancellation expenses assessed against Claimant were required to be “reasonable and necessary.” The Court found that the IAB’s determination that the fee may have been avoided under a “reasonable and necessary” standard not only misconstrued the use of the standard normally associated in the context of medical expenses and services, it was also not supported by the record for multiple reasons.

Now, I know today’s case may not be as exciting as The Quaile Case . . . And a Rectum in a Pear Tree, but I believe this factual scenario could happen to any of us and is definitely worth noting.

Also, be on the look out for a guest post from two of my favorite attorneys on the employer’s side about the Delaware Supreme Court’s most recent decision on Section 2363!

Best,

Caroline Kaminski