January 20, 2015
Medical professions can significantly effects the outcome of a personal injury case where and injured individual is seeking recompense. Though there is a multitude of ways the healing profession interfaces with the legal profession, I’d like to provide insight into common situations, relevant to injury cases, where the two professions intersect. My hope is that this series of posts will give you valuable insight for making the most of your interactions with medical professionals in the event you must pursue a legal course to be fairly compensated for your injury.
The outcome of a personal injury or Workers’ Compensation case can hinge on what the treating doctor thinks of his or her patient. Medical records prepared by treating physicians are used as evidence in personal injury lawsuits and worker’s compensation cases. Any report casting doubt on the patient’s honesty or motivation will adversely affect the damage recovery regardless of whether the injury claim is resolved by way of a settlement, a jury verdict or a worker’s compensation award.
How does this occur?
There are several circumstances that can lead a physician-to-patient relationship down the path of doubt:
Challenging Diagnosis or Treatment
Unfortunately, when a physician has a difficult time diagnosing or treating an injured patient’s medical problem or cannot understand why the patient isn’t recovering more rapidly, there is a natural tendency for the doctor to suspect his/her patient is trying to capitalize on an unfortunate injury accident and turn it into an unwarranted or excessive insurance settlement. This can cause the physician to label his patient a malingerer.
Unusual Recovery Pattern
Even when there is no question that a medical issue exists, if the patient’s recovery does not follow the pattern expected by the treating physician, then suspicion about the patient’s motive for “not getting better” can develop. Physicians who are frustrated will sometimes opined that the failure to improve is related to “secondary gain syndrome”.
Distrust of Attorneys
When a doctor’s suspicion of their patient’s motives is combined with a natural distrust of injury attorneys, the medical records may contain very negative comments, which are harmful to the injured person’s claim. This sort of situation can worsen if the patient and doctor have a serious falling out over the medical treatment or the outcome of a procedure. The physician may blame the patient’s discontent on the fact he/she is represented by an attorney.
How does this “play out” in a case?
The doctor is legally required to document treatment issue and they often do so at the end of the day. Patients seldom have a chance to review what the Dr. has “documented” and therefore if a simple error has occurred they do not have an opportunity to bring it to the physician’s attention and see correction. Hence, the doctor’s documented perception of the interaction with the patient, not necessarily what actually happened, is what will show in the medical records. The attorney who finds it useful to his/her case then relies upon the evidence found in the record. Every reasonable inference that can be drawn from the entries in a medical record, regardless of what the facts really are, will be drawn.
For example, documentation that the patient complained loudly about pain, and demanded drugs or treatment options that conflicted with the doctor’s opinion, can be construed as “drug-seeking behavior”. Even if the patient was simply hurting and needing help, the record will imply otherwise, based on the physician’s perception of the situation and of the patient.
How do you avoid these circumstances?
Work with your doctors.
Follow directions provided so that you can recover as soon as possible. Communicate with the doctor’s office and make sure they understand you really want to recover.
If you are not recovering as fast as the doctor expected, set up an appointment to discuss whether there needs to be a change of treatment. Be actively involved in your medical treatment.
By doing your best to recover, you build credibility with the doctor and his/her office staff.
Make every effort, within reason, to get back to work.
Physicians appreciate highly motivated patients and are much less likely to believe the patient is just in it for the money. If the patient has demonstrated a positive attitude and worked hard to recover from the effects of an accident, the doctor is much more likely to be supported as a witness in helping you to recover damages in a lawsuit. Physicians, who have faith in the veracity of a patient’s injury and their efforts to heal, tend to be great witnesses in favor of the patient.