Sep 9, 2011

We previously wrote an article on how you, as an injury victim, should approach your required visit with the insurance company doctor. Different than that article, this article assumes that your exam has already occurred. Furthermore, we are now assuming that the report has come back and the doctor, as they often do, wrote a report that is a total smear job. So now what?

There are really only two approaches for your lawyer in handling this challenge "fight or flight." The view that often seems to be popular is to ignore it (flight), pretend the doctor's dangerous report doesn't exist, and assume that the effects of the report will be minimal if ignored long enough. We feel this is sort of like ignoring the 800 pound gorilla in the room.

This article will not spend any time discussing the "flight" approach, largely because we don't agree with this approach so often taken by our colleagues. To the contrary, this article will detail our approach: the "Fight" approach.

Pursuant to Colorado Rule of Procedure 35, the insurance company is allowed to lodge negative, unfounded, and unscientific conclusions into the mix of your medical records. But this does not mean we are completely helpless.

If left unchecked, these doctor reports will cost you many thousands of dollars in settlement money, and if trial occurs, rest assured these doctors will come in spewing this nonsense as science. Furthermore, these records become part of a patient's medical records for the rest of her life. So, while many of our colleagues might respectfully disagree, we view ourselves as having no greater responsibility than to aggressively attack these doctors, their questionable credentials, and certainly take every opportunity to attempt to neutralize these dangerous, baseless reports.

In my 20 years of serving injured victims, I have reviewed more than a thousand of these paid insurance medical reports. I have found that each insurance company doctor's approach to smearing a patient makes them very vulnerable to attack. Their opinions are usually founded upon no science whatsoever.

If a lawyer takes a good deposition and follows up with well-supported pre-trial motions, these smear reports can usually be controlled and, if nothing else, greatly minimized. The approaches used by these doctors take the form of 3 types of insurance industry-supported conclusions they attempt to pass off as science:

1) The crash would be too insignificant to cause these sorts of injuries: "You're a Faker"
This is usually an opinion based on the doctor being given a selective framework of medical records and perhaps a photograph or two of a car bumper with little or no damage on it.

From these two sources, the doctor spins a tale that basically no one, and certainly you included, could have been physically injured in such a minor impact. This sort of smear, while very persuasive to a jury if ignored, will almost always fail if handled by your lawyer correctly.

a) How we beat them:
Medical doctors, particularly the ones hired by the insurance company, are almost never properly qualified to render opinions about the forces on a vehicle and what is or isn't sufficient force to cause injury.

In fact, there is no recognized "injury force threshold" agreed upon by the actual qualified experts. The experts say that there are just too many variables. So really, no one can look at a crash and say, this amount of vehicle damage COULD NOT cause an injury. Certainly, even if such an expert could be qualified by training, education and experience to make such a conclusion, certainly, THIS doctor isn't so qualified and certainly could not offer such an opinion based solely on medical records and a couple of photos of a bumper.

In my experience, this sort of opinion dies in the deposition ... and it's usually more of a suicide. The doctor himself will nearly always admit that he is not qualified to make such opinions, lacks the engineering qualifications, and lacks sufficient information to rule out injury from such a crash, regardless of the report he wrote.

But, if they stay headstrong during the deposition, a series of questions like the following usually "turns out the lights:"

Q: Do you ever diagnose patients solely by looking at photographs of them?
A: No.

Q: But, you spent 8 years in training doing nothing but studying the human body, right?
A: Yes.

Q: You then did a 2 year internship and a 2 year residency, correct?
A: Yes.

Q: With 12 years of focused training, you never became so proficient at the human body to be able to look at a photograph and conclude the extent of injuries to your patient?
A: It's just not done that way.

Q: It's not done that way because as a man of science you know that there are way too many variables about human injury, that a photo won't help you address, correct?
A: Correct.

Q: How much training have you undergone as an auto body mechanic?
A: None.

Q: Have you ever required your patients to show you their car for you to examine, in order for you to rule out injury to your patient?
A: No.

Q: And you don't do that for the same reason, right? Looking at their car isn't going to help you diagnose or treat your patient?
A: It has no clinical significance what the car looks like.

Q: We won't ever find you walking into an examination room and saying to your patient, "I really can't know what's wrong with you until you drive your wrecked car over here and let me take a look?"
A: Of course not.

I win! Even if this doctor gets on the stand and tells the jury why looking at the photos helped him conclude no injury here (big IF, because odds are his conclusions will be stricken for lack of qualification), there won't be a jury anywhere who will find his opinion credible after we go through the doctor's answers to my above questions.

2) The injury IS real--it's just unrelated THIS crash: "You're too stupid to know where your injury came from"
Yes, there was a crash. Yes, the crash adequately distorted metal, broke seats, and bent the steering column. And, yes, the patient is suffering the symptoms that can be caused by a trauma, such as a car crash. But the patient's injuries were not caused by the crash. This doctor says the injury stems from a preexisting condition, or an interviewing superseding event, or perhaps a dormant condition, that coincidentally became known to the patient after the crash, but entirely unrelated to the crash. This line of argument is very common among insurance doctors trying to dissuade a jury.

a) How we beat them:
These reports are fun, because when the deposition occurs the doctor usually comes out looking down right silly, and completely "bought and paid for."

This deposition goes partly like this:

Q: Doctor, you don't dispute that the impact of the crash was sizable?
A: Correct.

Q: And you don't dispute that my client didn't complain to a sole about any back problems until after the crash?
A: Correct.

Q: And, you agree that after the crash my client was put on a backboard, and taken to the hospital?
A: Correct.

Q: And, you agree that since that day, my client has suffered with back-related symptoms?
A: Yes.

Q: But the confluence of the back complaints and significant crash you concluded was just a coincidence?
A: Correct.

I win! When the irony of this sort of opinion is fully developed through the deposition, no jury ever finds much in the way of any credibility for this doctor's "it's a coincidence" opinion.

3) The patient had a dormant condition for a long time before the crash, but it didn't manifest itself until after the crash, but it is MOSTLY caused by this patient's inability to properly cope with life-events: "You're crazy, but at least your craziness was caused by the impact, but're just crazy."
This is the insurance company doctor's favorite type of opinion, because if left unchecked, it allows them to dig deep into any patients psyche, and even if not qualified, allows them to play psychiatrist and make a patient look like they are just crazy.

Doctors think this sort of opinion is the easiest for them to sell to juries. However, if handled correctly this sort of testimony can likely be stricken because it conflicts with a particular rule of law that judges are required to follow and advise jurors of.

a) How we beat them:
With a good set of questions and answers from this sort of doctor, we will nicely be able to seek an early order from the court striking the doctor's entire opinion as violating the "Thin Skull Doctrine."

Every juror is told as part of their jury instructions, that an injured person is entitled to full recovery even if they were, through their medical history or even just their DNA, predisposed to greater injury than might be expected from this magnitude of trauma. In law school we learn that "you take your victim as you find them," even if they might have an unusually "thin skull." Such a person is still entitled to full recovery if a negligent act caused their "skull," albeit thin, to crack in a way that no other skull might crack.

Doctors don't know the law and are rarely prepared properly for questions, including:

Q: Doctor, you agree that what brought on my client's symptoms, was in fact this crash?
A: Yes.

Q: You trace back all of the complaints my client had to the emergency room one hour after the crash, correct?
A: Yes.

Q: No place in your report do you conclude that my client would have developed any of these symptoms, at that time, except for the happening for this crash, correct?
A: Correct, I said nothing about that in my report.

Q: Because, the fact is, you don't know if my client, except for the happening of this accident, would have ever manifested symptoms the likes of which she presently has.
A: Correct, I couldn't say one way or another.

Q: You are here to say, that in your review of my client's history, psychological and otherwise, that you view my client to have a very escalated presentation of pain and injury complaints arising from this crash?
A: Yes, we normally see a much lesser degree of symptoms and for a much lesser extent of time post-crash, than how your client has reacted to this crash.

Q: You don't dispute that these symptoms are real to her?
A: They are real to her.

Q: She just has an exaggerated way of coping with these injuries that take her way out of the norm of how your average patients react to this level of traumatically-induced injury.
A: Yes, we call it multi-factorial. She has a certain type of psychological profile: neglectful parents growing up, two early in her life divorces, a general low pain tolerance, which coupled with this moderate collision has resulted in her simply having a very pronounced, very exaggerated reaction to what would have been merely a small bump in the road. To her it has had a profound physical, emotion, and psychological reaction.

Q: But, you found it was this car crash, albeit moderate in it's force, that set off this profound reaction, correct?
A: Correct.

I win! This is the perfect recipe for striking the doctor's opinion from ever being heard by the jury. The doctor is using fancy words to simply say, "the crash caused her more injury than it would cause a normal person to have." Well, that is entirely contradictory to the law that tells the jury not to concern themselves with a "normal person's" extent of injury. The are ONLY to focus on this particular person's injuries.

A motion will be filed after such a deposition and I expect a smart judge will strike the crux of this doctor's damaging and yet baseless conclusions.

At Anderson Hemmat, we believe it is important to face your dragons. That is why we do not cower away from bought and paid for insurance company doctors who attempt to solicit junk science to the jury. I have found that this battle is best fought early on in the case and out of the sight of a jury. If you are being told that an insurance company doctor is making any of the above arguments, please call today and speak to one of our attorneys who are happy to discuss your claim with you.


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