Dec 21, 2013

To win a personal injury case, you must prove that the injury event was the cause of your need for medical care. In an ideal world, proving this would be easy and would lend itself to a formulaic approach. However, injuries to the human body and the road to recovery from those injuries are often unpredictable. Medical science is often more of an art than science because science yields reproducible results. But in a car crash, people riding in the same car can suffer vastly different injuries, and healing from those injuries can occur at extraordinarily different rates.

Because the treatment and recovery of injured victims does not always fit a formula in a medical textbook, attorneys face a tough task in proving personal injury cases. Consequently, some attorneys hire dubious medical professionals and "hired gun" doctors to fill in the missing pieces of a case. Early in the case, attorneys orchestrate medical care and hire doctors, accident reconstructions, and biomechanical experts. I believe this is a mistake because defense lawyers know this trick and are prepared for it.

Even though these orchestrated "usual suspect" doctors and experts write beautiful reports with the proper causation buzz words, they fall vastly short of advancing a compelling argument for juries and insurance defense attorneys. Even worse, perfectly good cases get tainted with the smell of a "lawyer-orchestrated case." When cases are labeled "lawyer orchestrated," the scrutiny that insurance lawyers and adjusters put the case through elevates exponentially. In an extreme case, if a lawyer orchestrates all aspects of the medical care, a case that otherwise would settle may now get earmarked by the insurance company to go to trial. This could result in a small settlement just before trial or a low jury verdict at trial. Lawyer orchestration is a classic mistake of a lawyer trying to do too much.

In fact, I need to make a confession. I used to think that getting the right words on my medical reports was worth the use of dubious doctors. Please understand that my client's had genuine injuries, but like many lawyers, I was afraid that my client's primary care physician may simply not document my client's injuries in the correct way to make a compelling case to the insurance company. I figured my strength was my trial advocacy skills and I could withstand the attack of the defense about my choices (not my client's choices) of doctors, etc. After a string of low settlements and verdicts, I reformed my view of the lawyer-orchestrated approach to medical care.

Don't get me wrong. I am not saying that a lawyer should neglect a case or a client's medical treatment. Insurance adjusters love this type of situation as well. The lawyer who simply casts his clients into the wind to fend for themselves while the lawyer simply presents the medical records, whatever they may say, will allow an insurance company to frame the case in a distorted way. I have heard lawyers joke about sending stacks of unorganized medical records to the diligent insurance adjuster so that she can organize and make sense of them. How can an attorney justify taking a fee under such circumstances? I have never been this kind of attorney because I want to prepare my clients' as much as possible for success.

I once represented a male nurse who was hurt badly in a high-speed collision. Because he was a nurse and knew good doctors, he had little need for some "hired gun" litigation doctor. He went to physicians with great reputations in the medical community. Ironically, this initially frustrated me when I saw the medical records. Why? Because the records didn't expressly mention that the car crash caused my client's injuries. Of course, it was obvious to me that the crash caused the injuries, but to an insurance company, nothing is obvious. The first three doctors my client saw either didn't know about the car crash or simply failed to note it.

Being an experienced trial lawyer, I knew that without a clear causation opinion, my case may get kicked out of court. I began calling these doctors out of desperation to find out the reason for this crucial lack of causation opinions in the medical records. My conversations began by explaining who I was in relation to their patient. I would say, "I'm Mr ____'s, lawyer and he was in a car crash about 3 weeks before you started to see him for his extreme back pain complaints. I'm looking at your records and wondering why the fact of the accident or the fact that he was in your clinic because of that crash is missing from your report?"

To my astonishment, the conversations were always informative and never met with hostility. The doctors gave good explanations as to the likely explanation for the omission. They blamed new staff, young interns, and even their own breakneck schedule as being the culprit. It turns out that even doctors are simply humans and don't always put every detail into medical records. These doctors also verified that they were certain that the car crash caused my client's injuries. Problem solved! The added bonus was that the causation chain was established between injury and treatment without ever involving "usual suspect" doctors. The case was clean with no smell of lawyer orchestration and ultimately settled for one of my highest settlements ever. It settled because we delivered a clean case to the insurance company that didn't allow them to make the usual arguments that my client's injuries were not legitimate because his care was dictated by a lawyer.

I began a new journey after that case. I slowly relaxed my vice grip on trying to make sure clients saw a doctor with whom I was familiar. I began to encourage clients to return to their primary care physicians after a car collision and encouraged referrals to be directed by their regular doctor. What I found was that the doctors that my clients chose to see for their regular aches and pains added an air of legitimacy to the case that we could never maintain if my clients treated with well known lawyer "flavor of the month" doctors. What we lost was perfectly sanitized "lawyer dream" doctor reports (smoothly connecting the crash, the hospitalization, the therapy, and future medical needs into a tightly wrapped present). But I think we gained more than we lost.

We accepted that clinical doctors, removed from lawyer influence (from both insurance companies and plaintiff lawyers), do tend to fall short in their medical records because they do not document everything necessary to prove a case. These doctors fail to check boxes as to why their patients are there, how they were injured, and sometimes it's unclear from the written records what even went on during the appointment. However, the care they provided our clients was stellar. We noticed that our clients began to actually benefit from their medical care. Healing and improvement are generally dirty words to the usual suspect doctors. But to clinicians, healing is the norm. By contrast, to a "usual suspect" chiropractor, cancer seems to have a higher cure rate than your uncomplicated rear-end car crash injuries.

A clinical physician, such as an internist, who sees fifty patients a day, has little time to write everything they want to say about a patient. About a decade ago, I started to carefully read what these doctors writing. As a trial lawyer, I read the records and noted where the holes and weaknesses were in the case. Did the doctor mention that the care was because of the car crash? Did the doctor mention that the physical therapy might need to last 5 years into the future? Then, I would meet or simply call the physician to discuss my client's case.

Early in this process, I would discuss my concerns with the physician and ask them to write me a note clarifying the issue. However, I soon learned that a doctor's viewpoint often got watered down or lost "oomph" when I asked the doctor to dictate something to his secretary. Using a court reporter to record the conversation didn't seem to work either. It unnecessarily intimidated the doctor. After lots of trial and error, I decided that a casual telephone conversation, followed by a letter from me confirming our conversation, was sufficient to prove my clients' cases. It relieved the doctors of having to become super articulate advocates when often their strong suit was patient care, not medical/legal writing. It also prevented them from charging my client a $1500 fee for writing a narrative that often missed the point anyway.

There will always be clients without health insurance who have no choice but to go to a doctor who specializes in injury cases. Nevertheless, when possible, letting my clients treat with their primary care physicians instills confidence between doctor and patient, and legitimizes the injury case.

At Anderson Hemmat, we want you to recover as much as possible from your injuries. To do so, you must have confidence in your medical providers. We want you to treat with medical doctors who will help you recover and add credibility to your case. If you've been injured in a motor vehicle collision, please call us today for a free consultation.


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