testifies at deposition inconsistently with his or her medical records. For example, upon discharge, the medical report may state that the plaintiff is not having any problems with the activities of daily living. The client then goes on to testify that she has not been able to brush her own hair since the accident, cannot walk up stairs anymore, and has pain on a daily basis that is a pain level of “10,” even though she has not seen a doctor for these injuries in three years. If your client is going to be deposed, make sure he or she reviews the medical records before testifying to help refresh his or her recollection, and make sure your client understands the importance of being honest and consistent. Of course, the client at the other ex-


treme is equally problematic: the “John Wayne” client who fails to articulate all of his or her complaints to the health care providers. Nearly every insurance company uses a Colossus-type software program to assist claim adjusters in evaluating claims. Each system works similarly by considering a large variety of factors. Each subjective and objective complaint that appears in a medical record is given a score, and weight is assigned to the complaint. For example, neck pain gets a certain score; however, neck pain with associated headaches and numbness and tingling will be given a higher score, which ultimately translates into a higher evaluation. Furthermore, some clients will have lacerations, cuts, scrapes and bruising, but will fail to mention any of this to the health care provider. If the complaint does not make its way into the medical report, it will not be considered by the adjuster, and is unlikely to be consid- ered by a judge or jury.


Keeping Appointments and Attending the Discharge Evaluation


Underscore with your clients the


importance for their recovery and case of keeping their appointments and receiving a final discharge from their providers. No-shows indicate a client is


34


not seriously injured. Paradoxically, we find the no-show/no discharge problem is often more prevalent in larger cases with serious objective injuries. When the records from the physical therapist are littered with notations regarding no shows, cancellations, arrived late or left early, it is ammunition for the defense attorney and adjuster. Failure to receive an appropriate dis-


charge does not provide any baseline to evaluate the potential long-term sequelae of the injury. With some jus- tification, the insurance company will assume in this instance that the patient has made a full recovery as of the last day of the medical treatment. Again, if it is not written down in the medical records, it does not exist to the defense attorney or the adjuster. In order to prevent this pit-fall, call your client’s in active treatment every three weeks to get a progress report.


Verify Plaintiff’s Prior Medical History


At every intake with a new client, it is


important to spend time reviewing prior medical history and past claims history. On countless occasions as a defense attorney, I was able to uncover prior medical histories and claims of which the plaintiff ’s attorney was unaware. There is no greater damning evidence than the existence of a prior medical condition or claim that was denied un- der oath by the plaintiff. Spend enough time with your clients discussing this issue at length. Explain to them in very direct terms that their prior medical history or claims history will be uncovered by any competent defense attorney or adjuster with access to a computer. In some circumstances, the clients may not remember whether or not they were injured on the job or made a claim for that car accident in which they were involved. You may want to consider sending a subpoena to the Workers Compensation Commission or your client’s own insurance company. At a minimum, request an index of your own client through AISG.


Trial Reporter


Never Put In Writing to a Doctor What You Do Not Want the Jury to See and Hear


Do not send a letter to a doctor (or any


expert or fact witness) that you would not feel comfortable seeing blown up larger than life, read aloud with feeling to the jury and introduced into evidence at your trial. This also applies to e-mail and phone messages. This is an innocent mistake many


lawyers make. Defense attorneys will always subpoena a doctor’s file, which usually includes all correspondence. Asking a doctor an opinion on causal connection is one thing, but telling the doctor what you need him to say is another. Another request by attorneys that I have seen in the past is a request to change a report. This is a bad idea even if a legitimate change is warranted. If you think there is a problem with the report, or your client points out a mistake, fixing the problem or correct- ing the mistake may cause more harm than good. One way to avoid this pitfall is to have your client call the doctor to point out the error and have the doctor prepared to resolve it at trial.


Do Not Voluntarily Sign A Medical Authorization, Provide Past Medical Records or Agree To A DME


Adjusters will “try and make your job


easier” by collecting the medical records for you. This is a bad idea. If you sign a blanket medical authorization, the claim rep will get copies of medical records that may not help you. The family doc- tor’s records that reveal your client had a headache and body aches five years ago when he had a fever of 104 will be construed as a pre-existing condition of headaches. Similarly, your client’s visit to the ER after a softball injury and the x-rays showing degenerative changes will be used against you. Another trick used by the adjusters is, “I see that your client had a prior neck


(Continued on page 36) Winter 2009


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