Chronic — continued from Page 64
you want to listen to your client, the doc- tors, and make sure you’re properly addressing the damages and getting the right specialists involved before it is too late. This is where being a good shot- caller and assessing your plaintiff and case correctly is critical.
Medical management The important thing to remember
when you take the case on is that you have the opportunity to gather evidence immediately and as you continue for use at trial. This means you need to get to the scene before it changes and take pic- tures, get your engineers there, do meas- urements, capture what is there to be captured. Find witnesses who saw the man whack his head. These witnesses will be critical at trial, if they exist. The fact they too were surprised by the violence of the hit, saw his legs buckle, saw the immediate swelling, saw him go to his knees, to the ground, knocked out, woozy, that all proves your concept of the case. Jurors want to hear that stuff. Your job as the lawyer and later the
trial lawyer is a bit like being a play- wright, or a movie director. You find the pieces, the people, and assemble them in a convincing order. Preserve the evi- dence before it disappears. You can’t go back and recreate it, so talk to the plain- tiff, those with him, get reports of the incident, track down witnesses and pre- serve physical evidence while things are fresh. Or it’s gone. And that’s on you. Once you take the case, make a commit- ment to do it right. Build the blocks of evidence. Get the ambulance report and the
ER and hospital records. Do they corrob- orate your plaintiff’s statement to you that he was knocked out? Make sure he gets to the best experts early – trustwor- thy, honest doctors who know accurate diagnosis and the truth will serve every- one best. And demand to speak to the doctors after your clients see them. Talk with them. Get reports. Read them, act on the suggestions of the doctors. And feel comfortable to challenge them on their findings if you have reasons to
66— The Advocate Magazine JULY 2011
dispute it. You have a shared goal with them, to manage the medical evidence and make sure you’re all working towards accurate diagnoses. There is an evolution to consider in
the medical management. This can be staggered through the first year of han- dling the case. The key is to stay on the management, stay on the plaintiff and the doctors so you know what you have and don’t have, and then follow up. Management is the key. In the hypo-
thetical case suggested it might go like this: • Ambulance • ER Hospital • Initial consult with Orthopedist • Initial consult with Neurologist • Physical therapy • Pain medicines • Injections of pain medicine • Surgical consult for neck • Neuropsychologist evaluation • Potential for brain imaging studies • Potential for cognitive behavioral assess- ments • Potential for other pain management techniques: acupuncture, chiropractic, etc. • Potential for Physiatrist consult for global assessment of chronic pain etiolo- gy, effect of neck injury and TBI on whole person • Life care plan project (LCP) • Vocational loss assessment subsequent to LCP
Conversations about the pain I start talking about the degree and
duration and effect of pain as soon as it starts dominating the conversation with the plaintiff. Pain generators, such as activities, should be noted. What brings it on? Sunlight? Movement? A particular time of day? What does it feel like? Burning? Stabbing? Dull? Achy? Can we estimate it on a 1 to 10 scale? There are so many ways to discuss pain. Use the Internet and google “pain.” Educate yourself as a trial lawyer in this field on the subject of pain! Why not? Doesn’t it have a lot to do with what you argue for, fight for, consider on behalf of your clients? Might as well know how it is caused.
Just as important as understanding
chronic pain (a few years back I authored “Understanding Chronic Pain” for the Advocate and I welcome you going to the CAALA archive and reading it!) is understanding how to make it go away, pain management. You should always keep an eye on what is working, and what is not, while your client sees various providers in the course of their medical management. If shots don’t help, then stop them of course! If a type of pain pill makes your client nauseous, make sure the doctor hears that and con- siders a change in medicine, or another form of pain management. Basic stuff, but the key is paying attention and listen- ing.
Time has a great effect on what pain
does to someone. We all suffer with a sprain for a few days, maybe a week or two, sometimes. We all get a toothache. A paper cut. We all know pain. But what many of our clients know that so many in the general population will never know is, what happens when you have a lot of pain for a lengthy period of time? And what happens when the doctors tell you I have no solution? This is the way you’ll always feel? Chronic pain can rob people of their careers, change relationships, wear people down. Take away joy of life, take away the joy of favorite activities, become a gradual wearing down of the psyche and the soul. Document this ero- sion of the person you first met when you signed the case up. Who knows about this? Find out!
Diaries and documentation Since you are like a movie director,
start choosing your cast. Who knows about the event? Who the person was before? And is now afterwards? Get your client to give you the names not found in police or incident reports. Close family members old enough to testify. Co-work- ers. People they play sports with. Or play music with. Or quilt or play bridge with. The witnesses should do the major heavy lifting in effectively communicating pain to an insurance company in a settlement
See Chronic, Page 68
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