An often overlooked witness in therapy cases is the person purportedly rendering the treatment, the licensed massage therapist (LMT). Many times, the LMT is overlooked by Defense Counsel because the LMT is not generally thought of as an expert witness. The physician prescribes therapy and then the LMT just carries out the physician’s plan. However, the LMT can provide useful information in a number of different ways.
For example, consider an unbundling case involving CPT Codes 97140 (manual traction) and 97124 (massage therapy). Unbundling indicates that the services represented by 97140 and 97124 are so similar that they are essentially the same therapy and should not be billed separately. To illustrate, think back to your last manicure. Your nail technician painted a clear base coat and then painted your nails again using your favorite hot pink shade. Certainly, these were two separate tasks and could even (theoretically) involve two separate persons performing them. However, even if performed by two separate persons, your nail salon would not charge you for two manicures. This is because the services are so similar and are part of one concerted effort to create one end result: your finely manicured nails. Similarly, 97140 and 97124, even if performed by two different people, can be so similar and part of one concerted effort to create one end physiological result. Thus, when 97140 and 97124 are unbundled, it is important to depose the witnesses who participated in performing each of these services, including the LMT.
The deposition of the LMT will help further develop the unbundling issue by providing insight into how exactly the therapy at issue was performed. However, all too often, Plaintiffs refuse to produce the LMT for deposition. A common objection to producing the LMT is, of course, the same reason that the LMT is generally overlooked. The LMT “just” carried out the physician’s orders. However, this does not negate the need for the LMT’s deposition. Every time your boss gives you some sort of order to carry out, do you always carry it out exactly as ordered? Hopefully, yes, but most likely this is not the case. Furthermore, the LMT is the only fact witness who can provide testimony as to the specific manner in which the therapy was rendered.
Recently, our firm has been successful in pursuing these depositions over objection, obtaining Orders denying Plaintiff’s Motions for Protective Order regarding the LMT depositions and granting the insurer’s Motion to Compel the Deposition of the LMT before Judge Gonzalez-Paulson of Miami-Dade. See, for examples, Miami-Dade Court Case No. : 10-0486 SP26 and Miami-Dade Court Case No. : 10-813 CC 26. Don’t overlook this important piece of the litigation puzzle and don’t give up if met with opposition as these depositions should be pursued when the actual massage therapy is in dispute.
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