Medical Information: Proof of Damages

Case evaluation, prior to accepting a client and executing the contingency fee agreement, frequently requires the preliminary assembly of medical information.  This preliminary evaluation process of medical information is all the more necessary when determining whether to accept a medical malpractice case.

It is good practice to retain a nurse and/or doctor to review the medical records and to assist in evaluating the potential case from a medical perspective.

The basic factors which are used by experienced trial counsel in evaluating large cases are the same fundamentals they use for analyzing their smaller cases when they were not so prominent.

A case is “small” in terms of economic value usually because the injury is not severe; the injury has successfully healed; there is little long-term disability; there is a lack of chronic pain or restriction of movement; or the economic value of the medical care is modest.

Smaller cases are useful preparation for attorneys to learn the skills necessary to handle major litigation.   The presentation of small cases is in fact, necessary for the artful maturation for one to become an experienced trial counsel.

I. How to Collect Medical Information

The initial source from which one obtains medical information is the client.  The process should begin at the initial client interview when the attorney asks questions of his client about the accident and the injuries caused by it.  The initial consultation can be augmented by giving the client a questionnaire to complete which inquires about the client’s current medical condition, medical history, present disability and associated pain.  This is a low-cost effective way to begin documenting your client’s medical damages.

The second procedure which should be completed at the initial consultation is to have the client sign medical authorizations so that you can obtain photocopies of his/her medical records from all of the pertinent health care providers.  These health organizations include:  doctors, hospitals, clinics, physical therapists, specialists and/or consultants, nursing homes, chiropractors, social workers, psychologists and psychiatrists, dentists and pharmacies.

When requesting medical records from a hospital, it is particularly important to send medical authorizations to each of the following departments:  medical records, radiology – for copies of x-rays and the accounting or billing department.  Though each patient is entitled to receive a photocopy of his medical records there is a charge for photocopying the record and for the cost of copies of x-rays.  By-laws of the Massachusetts Board of Registration and Discipline, approved at its meeting September 22, 1978, and M.G.L.c. 111 section 70.

It is important to be specific and careful concerning the information which you are seeking.  Many hospital administrators do not consider an accident and/or incident report, nurses’ or doctors’ notes of an accident, autopsy reports or peer review committee minutes as part of patient’s “medical record.”  It is better to ask for it with the following phrase “. . . including but not limited to the (e.g. autopsy) report . . . ”

Query:  From whom should you request medical information?

You should request records from the doctor(s) and hospital(s) which treated your client after the accident, but do not overlook the records of care-givers such as physical therapists, rehabilitation hospitals and family doctors.  Pre-accident medical records are important in that they 1.) provide an accurate picture of your client’s medical condition prior to the accident, and 2.) test the veracity of your client’s rendition of the facts.

This preliminary review of the medical records is an absolute necessity, perhaps more so in medical malpractice cases, and will assist you in determining whether or not your client has a viable claim.  The review process will also assist in identifying liability issues which may be contained within the medical history.  As the medical record is assembled it will document treatment, conscious pain and suffering, mental anguish, pain associated with the treatment, rehabilitation, disability issues and support the damage portion of the case.

II. How to Use Medical Records

A.     In order to admit the hospital records themselves, M.G.L.c. 233, section 79 provides an exception to the hearsay rule.  In order to be admissible, the hospital records must be kept pursuant to M.G.L.c. 111, section 70.  Out of state hospital records also appear to be admissible if they are kept in a manner similar to the dictates of M.G.L.c. 111, section 70.  (see, Commonwealth v. McDonough, 400 M639, 642 (1987); Commonwealth v. Sargent, 24 Mass. App. Ct. 657 (1987)).

A client’s medical record is necessary to establish the causal relationship between her accident and her resulting injuries.  It not only provides the factual underpinning upon which a doctor can render an expert medical opinion, but also provides objective documentation to which the doctor can refer for her diagnosis and prognosis.

B.     The jury, in its common knowledge, cannot determine whether the injuries suffered by the client are related to the accident.  This type of expertise is beyond their province and requires expert testimony by a qualified physician.  Thus, it is necessary to introduce medical records into evidence at trial.  A doctor can testify about his treatment and use his office notes to refresh his memory.  He can also state what he charged for his services.  The hospital record is subpoenaed into trial by the plaintiff, and is usually brought to the court clerk’s office by hospital personnel.  If appropriately documented by the subpoena, the record can then be offered into evidence by plaintiff’s counsel.  Medical bills can be automatically admitted into evidence through the affidavit procedure by M.G.L.c. 233, section 79G.  These records must be admitted into evidence so that they can be referred to during trial testimony.

The doctor, either treating physician or retained expert, uses the plaintiff’s medical record to objectively document pain and suffering, disability, limitation of motion, the need for specialized prosthetic devices, home care, modified home environment, nursing or rehabilitative institutional care, limitations on work capacity or types of occupations, learning disabilities and emotional and psychological impairments.

Medical testimony and the extent of injury is often explicated by the use of photographs.  Some doctors, particularly plastic surgeons, take photographs to show the before and after results of their work; photographs taken by family members or by professional photographers showing injuries sustained by your client can help to illustrate the doctor’s testimony.  3 Wigmore Evidence, section 795 (photographs of injured or mutilated parts); trial judge’s discretion as to the admissibility of photographs, Commonwealth v. Bys, 370 Mass. 350 (1976); exhibition of a person’s injury constitutes direct evidence of a material fact, Commonwealth v. Woods, 339 Mass. 7 (1959); photographs, skeletons, medical charts used as chalks at trial, Peloquin v. Robert Northbridge Furniture, 343 Mass. 317 (1961).

Practice Tips:  Retaining a nurse practitioner or a rehabilitation therapist to review and interpret the medical records can be very helpful.  These professionals can also assist the attorney in understanding what the medical terms mean in order to accurately and persuasively document the treatment rendered.

No Fault Insurance Law:  A plaintiff is required to have at least $2000.00 of reasonable and necessary medical expenses, or a fracture or scarring before he is permitted to bring a lawsuit for pain and suffering against the defendant as an operator in an automobile accident.  M.G.L.c. 6D;  Victum v. Matin, 367 Mass. 404 (1975);  Pietroforte v. Yellow Cab of Somerville, 19 Mass. App. Ct. 901 (1985)

III. The problem Areas in Medical Records

A.     There are, at times, inaccuracies in a medical record which often cause the plaintiff’s attorney difficulty.  The medical history section of the hospital record is the place where the accident is described.  Harried emergency room personnel who have little time and concern for the details of the accident, often transcribe their impressions in shorthand phrases which are, at worst, wrong and, at best, misleading.  The victim often is not the most coherent transmitter of information because he/she is seriously hurt, in pain, and/or in shock.

The nurses’ or doctors’ notes can contain inaccurate descriptions of liability issues and/or pre-existing medical problems.  On the other hand, these same liability notes, if supportive to the plaintiff, are admissible.  If a doctor testifies that he used information about the accident to help him determine his course of treatment, this information can be offered into evidence by either the plaintiff or defendant at the discretion of the trial judge.   Commonwealth v. Sargent, 24 Mass. App. Ct. 657 (1987);   Wright v. Precast, Mass. App. Ct. 1014 (1985);  Terrio v. McDonough, 16 Mass. App. Ct. 163, 175 (1983);  Commonwealth v. Perry, 385 Mass. 639, 641, 642 (1982).

B.     Pre-existing medical conditions which are the same or similar to the condition for which the plaintiff is seeking damages can also create problems.  A typical situation is as follows:  the plaintiff claims a herniated disc as a result of his/her accident but the hospital records, x-rays, radiologist’s reports and family doctor’s records indicate she was treated for the same condition several years prior to the accident.

If the plaintiff’s attorney is faced with this situation there is still a tactical way in which to handle it.  It is credible to state that the pre-existing condition was asymptomatic, that it caused the client no problems in her daily life prior to the accident, and/or that the problems associated with the pre-existing condition were transitory or intermittent and are now chronic and permanent.  The plaintiff’s doctor is then in a position to testify that the person’s injuries are an aggravation of a pre-existing condition and that what was once intermittent, is now a chronic and permanent condition.  Wallace v. Ludwig, 292 Mass. 251, 256 (1985).

C.     Negative or equivocal remarks by the client’s treating physician can lessen the strength of her claims.

In some instances the treating physician is unwilling to state or to opine that the plaintiff’s condition is causally related to the accident.  The doctor refuses to cooperate with plaintiff’s counsel, refuses to find that the accident contributed to the disability and is unwilling to testify in court.

This reluctance of doctors to cooperate with plaintiff’s counsel is now pervasive due to negative insurance company advertising, increased medical malpractice insurance premiums and a developing disdain on the part of health care providers for the legal system and in particular the attorneys who practice in the personal injury area.

IV. Medical Records Are a Necessary Pre-Requisite for a Doctor to Render an Expert Medical Opinion

A doctor retained by either party is usually asked to render an expert opinion in two parts:  1) the injuries are causally related to the accident; 2) the diagnosis, prognosis and pain and suffering associated with the injury which can be used by the jury to evaluate the appropriate damage award.  A defendant is liable to the plaintiff for reasonable compensation for pain and suffering caused by the defendant’s negligence.  Past as well as future probable pain and suffering may be a part of the plaintiff’s damages.   Cuddy v. L & M Equipment Co., 352 Mass. 458 (1967).

Doctors are frequently retained to render expert medical opinions (pre-trial for settlement purposes), for litigation purposes and ultimately for trial testimony.  The availability and cost of expert medical opinions is beyond the scope of this monograph.  Suffice it to say that you should obtain the best doctor you can find and work with him/her as closely as possible.  A review of the medical records with your client’s treating physician or a doctor retained for expert testimony is mandatory.

The better you comprehend the record and know its contents, both pro and con, the better prepared you will be to use its contents in the presentation of your case.

V. How to Order Medical Records – What to Ask For

You want everything and its a pain in the neck to obtain it.  You should keep track of what you have ordered and which health care providers have responded or failed to respond.  If possible, and if you believe your client is capable, have him/her obtain their own medical records.  The benefits are better service from the hospital, less antagonism from hospital personnel, quicker assembly of the record and decreased costs to you because the clients pay for them.

You must always read the records when they are received.  Sometimes pages are missing – sometimes pages are illegible.  If the words are unclear it is important to know what is written and what it means.  A doctor may purposely obscure a term or an entry.  If necessary, the doctors should be deposed and required to clarify the medical terms and interpret the record.  Photocopies are frequently so light that subsequent copies for office use will be difficult to reproduce.  You should check dates:  when the operation was performed, when the operative note or autopsy report was dictated and when it was transcribed (especially in medical malpractice cases).  Check the dates and the name on the x-rays; ask the hospital radiology department to make a complete copy of the x-rays and bill you for them.  Be prepared to pay in advance for medical records and x-rays and doctor’s reports.  X-rays can be made into positive prints by a reputable photo lab and used for settlement purposes, for review with your experts or as guidelines for medical illustrations.

The discharge summary of a hospital record is that part which briefly summarizes the course of the patient’s treatment while in the hospital, but it is by no means the complete hospital record.  Its use may be compared to one reading a book review instead of the book.  A good claims adjuster will not be satisfied merely with the discharge summary.

To increase its usefulness, the medical record should be segregated into its component parts for easy reference.  A medical record should be separated, tabbed and indexed so that it is easily digestible by laymen and experts alike.  This is particularly useful since different people will have greater need or place grater emphasis on different segments of the record.  A basic format could be organized by subject matter:

i.     admit sheet

ii.    operative note

iii.   consult notes

iv.   pathology reports

v.    radiology reports

vi.   nurses’ notes

vii.  medication records

viii. x-rays

ix.    doctors’ notes

x.     test results and reports

xi.    incident/accident reports

xii.   peer review committee minutes

xiii.  autopsy report

xiv.  discharge summary

xv.   accounting/billing records

VI. Medical Reports – Does One Need Them?

One should distinguish between a patient’s medical records and medical reports which are prepared by a doctor upon request.  A doctor can charge the requesting party a reasonable fee for his time spent reviewing the patient’s record and preparing a written report.

A medical report is usually a typed document prepared by a doctor at the request of an attorney.  If it is written by the treating physician it is usually discoverable as part of his office records.  If the treating physician is retained by the plaintiff’s counsel as his medical expert, it is more likely the report can be kept confidential, but there is no certainty under the discovery rules in this regard.  The use of a treating physician as an expert is preferable to an outside doctor since he is retained for treatment by the client rather than being hired by the client’s lawyer for litigation purposes – the classic hired gun.

If an expert medical report is written by a person specifically retained by an attorney it is frequently discoverable pursuant to M.R.C.P. 35(b) and 26(b)(4)(a&b). (see also, 7 Mass. Rules (Smith and Zobel) section 26.6; 35.6; 35.7)).

Practice Tip:  It is a good idea to communicate by telephone, in person or by correspondence with the doctor from whom you are seeking a report.  It is helpful to outline for him/her the general context of the case; provide for his/her review a photocopy of the pertinent medical records, and if necessary, x-rays; and arrange for him/her to examine your client.  The client examination is frequently delayed until right  before trial by some attorneys to save money, but this procedure is often awkward and it tends to undermine the credibility of all concerned.

A doctor’s report usually contains a history, a summation of the medical treatment to date, an examination and testing of the patient with the notation of significant findings, a diagnosis and prognosis.  The prognosis may discuss future care, disability and the costs associated with treatment.

If the future projected care is substantial, a medical economist can use the doctor’s report to project the reasonable and necessary medical costs for future care.  A vocational specialist can use the doctor’s report as the factual foundation for his opinion relating to employability and task function in the open job market.

Language limitations and translation difficulties or misunderstandings can create serious problems if not carefully addressed.  You should accompany your client or have a nurse practitioner go with him/her to the examining physician’s office.  This is particularly important when the examination is being performed by a physician retained by the defendant’s attorney.

It is safe to assume that all expert reports are discoverable under certain circumstances.  You may want to consult with the doctor verbally to review her findings, prior to preparing a written report.  You may also decide that a written report is unnecessary or counterproductive.

Although medical reports are not admissible into evidence, medical treatises, periodicals and books are admissible pursuant to the guidelines of M.G.L.c. 233, section 79c.

VII.  Why Do You Need Medical Records to Substantiate Damages

The basic elements of damages in a personal injury case are:

A.  medical care:  past, present and future

B.  pain and suffering:  past, present and future

C.  disability:  past, present and future

D.  lost wages:  past, present and future

Medical records are the foundation on which one factually and objectively quantifies the areas for which you want the jury to award damages.  They are used by one’s experts to substantiate their opinions and to assist in corroborating the testimony of the plaintiff and his/her family.

Experienced defense attorneys also use medical records.  A defense attorney is entitled to receive and review, pursuant to M.R.C.P. 34, the medical records of your client because the medical condition of the plaintiff is a fact at issue in a personal injury case.  The defense attorney, pursuant to M.R.C.P. 35(a) is entitled to request a physical examination of the plaintiff by a doctor retained by him.  The court will uphold this request by a suitable motion for discovery filed by defense counsel. When the defendant’s doctor examines your client you are entitled to receive a photocopy of the examining physician’s report pursuant to M.R.C.P. 35(b).

Psychiatric medical records can be particularly troublesome.  Psychiatry is an interpretive art as much as it is a science.  Psychiatrists and psychologists are prone to couch their language in terms of equivocal phrases or in terms of possibilities as opposed to probabilities.   This may be explained by the interpretive manner of the profession but it plays havoc with a litigator presenting evidence to a jury.

Practice Tip:  The concern to the practitioner is that opinions relating to a person’s psyche sometime rebound against the interest of the person seeking the opinion.  Once an opinion is rendered by a mental health professional it is difficult to overcome it if it casts a negative impression upon the client.

This same negative effect can often be created by a defense attorney in the following way:  The plaintiff has physical and emotional injuries.  Some of the physical injuries are not readily apparent:  migraine headaches and chronic back pain.  The emotional injuries manifest themselves in depression and family quarrels.  Plaintiff’s counsel in his zest to validate the veracity of his client’s emotional deposition testimony relating to emotional trauma sends her for a psychiatric evaluation.  The psychiatrist states that the client is depressed because she is suffering from a lack of a positive self-image which may be related to the injuries she suffered in her accident.

The defense attorney then moves to have her examined by a psychiatrist under the guise that her emotional state is an issue in question.  The defendant’s psychiatrist then writes a report that states that the plaintiff’s emotional problems pre-existed her accident and that her physical conditions are psychosomatic – that is, she evidences bodily symptoms and/or emotional symptoms as a result of mental conflict.  In this fashion the defense seeks to undermine both the bodily and emotional injuries for which the plaintiff seeks compensation.

One should note that even the best case can be destroyed by overreaching on medical causation and damages, and by under preparation of medical experts prior to writing an expert opinion or testifying at trial.

VIII.   The Treating Physician v. The Hired Gun

A rule of thumb:  the treating physician usually has greater credibility than a doctor specifically retained to review the medical records, examine the client and state an opinion for a fee.

If plaintiff’s counsel cannot secure anyone but an independent expert, the treating physician should be asked to make a referral or request a consult by the person proposed by counsel.  The consult can then be entered in the plaintiff’s medical record as a referral from one physician to another.

Treating doctors tend to be less antagonistic towards plaintiff’s attorney if they have been forwarned well in advance that they will be receiving a subpoena.  Whether it is the plaintiff’s attorney or the defendant’s attorney who is issuing the subpoena, a quick telephone call from you can only help.

It is also important to note that the preparation of the medical expert with the hospital records prior to his/her deposition or trial testimony is an optional procedure, but an absolute necessity.  Trial experts are a difficult and exhausting breed to properly prepare for trial;  they must be encouraged and at times spoon-fed the medical information upon which they must base their medical opinion.

The best protection for the experienced trial counsel and his medical expert is for the doctor to be told everything:  “the good, the bad and the ugly.”  He should receive photocopies of the plaintiff’s deposition, the defendant’s doctor’s report, and the medical records provided to defense counsel with the addition all pertinent x-rays.  He should review the medical literature or have it reviewed for him by a computer assisted medical check for articles, periodicals, books and treatises consistent with his opinion; this type of computer research should also be made for the defendant’s doctor and his published works.

The testimony of a medical expert generally includes his qualifications, the plaintiff’s case history, initial examination, diagnosis, course of treatment, present condition, cause of the injury, prognosis and amount of the bill for professional services rendered.

Though not a recommended practice, particularly in complex cases, it is not necessary that a physician be a specialist to give an opinion in a specialized area.  Nevanranta v. Koski, 335 Mass. 760 (1956).

A physician may use his records to refresh his memory in testifying but the notes themselves cannot be admitted into evidence since they do not fit into two of the four requirements of the business records exception rule (M.G.L.c. 233, section 78):  the records must be made prior to the commencement of the civil action, and the record must be of an act or an event rather than an opinion or diagnosis.  The Federal Rule of Evidence 803(b) is broader and allows “opinions or diagnosis”.

The facts upon which the physician testifies must already be in evidence.  Leech and Liacos, Massachusetts Evidence, 98-100 (4th Ed. 1967);  Comm. v. Harris, Mass. App. Ct. 265, 266-267 (1973).

IX.  Health Maintenance Organizations

It is estimated by the government that a majority of the doctors practicing within the U.S. are associated with some type of health maintenance organization and/or group practice.  HMOs are prepaid health care centers which charge their members a flat yearly fee, on a single, family or group basis, for all their medical needs.  In exchange for a sum certain the HMO agrees to provide for virtually all the health care requirements of its subscribers.  These services range from routine annual physical examinations to open heart surgery and rehabilitative care at specialized facilities.

If your client is a member, he or she will not receive a bill for services.  A medical bill is usually the primary factor to substantiate that the charge for services is fair, reasonable and necessary.  It is therefore important to find a way to estimate to a reasonable certainty the monetary value of the services performed at a HMO.  The jury needs this information as a means to assess damages for medical care in the past, present and future.  The mere fact that the client did not have to pay the full value of the services is no different from if he/she had purchased an insurance policy to pay for the medical costs generated by the HMO in the first instance; it is a collateral source.  An exception to this basic rule may exist in medical malpractice cases.

One can obtain the monetary value of the services in a couple of ways.  A financial administrator of the HMO could be asked to review the computer printout of the medical care provided and then ascribe a market value to each service based upon a comparison of like services in nearby hospitals.  Another approach would be to retain a medical economist to review the services provided by the HMO and have him determine their economic value based upon federal and state economic and private industry statistics and reports.

A local example of a facility which does not generate medical charges for its services is the Shriner’s Burn Institute in Boston. Its services are provided without charge.  The market value of its services is extraordinary. They should be documented in those catastrophic injury cases where future medical care is significant and its projected cost can be estimated, in part, from present costs.

XVI.  Future Medical Care and Disability

The cost of medical care has risen in the past and continues to rise at a rate well in excess of the Consumer Price Index.  In fact, the cost of medical care is one of the fastest rates of growth in the U.S. economy.  If one has a client with permanent injuries and longterm disability, it is advisable to retain a medical economist to review the medical care provided.  The information he needs includes the records from all health care providers, the client’s deposition, the medical bills, and the economic records of the client.  With this information the medical economist can project the total cost for comprehensive medical care over the reasonable life expectancy of the client.  This projection would include, where appropriate, the cost of institutional care at a number of similar facilities for comparative purposes.

If you have a client whose future medical problems are not catastrophic in nature, but are more appropriately described as chronic, you still must try to quantify the economic value of the care both for settlement and trial purposes.

If the medical services include an operation to be performed within the next year or so, the treating physician or surgeon is probably able to give an opinion which is admissible at trial, on the reasonable cost of such services.  (M.G.L.c. 233, section 79G allows proof of the reasonable value of past medical costs by affidavit without the necessity of having the physician or hospital administrator testify; also see M.G.L.c. 46, section 19, which allows the introduction of a death certificate into evidence as prima facie evidence of facts recorded).

XVII.  What is Contained Within a Medical Record – Pro and Con – or What Do The Words Mean

It is quite common for a medical record to contain many items which are at best, extraneous, and at worst, harmful to the plaintiff’s case. Such entires may include references to alcohol and/or drug use, abortions, mental illness, and pre-existing physical conditions which are the same or similar to the injury at issue.  Though they may not have any bearing on the current medical problems your client is suffering from, they are veritable targets for the defendant’s attorney to use, if for nothing else than, to question your client’s character.  The abuse of alcohol is often cited as a contributing cause of an accident either as the prime factor or as a contributing factor engendering inattentiveness or limiting the client’s normal physical reaction responses.

If your client has gone to the local hospital for most of his/her life it will contain records from her childhood, adolescence and adulthood.  The hospital records will probably contain old radiology reports and original x-rays, birth control problems and all the myriad things associated with one’s medical care and how it reflects a truncated picture of one’s life.  Many of these entries, in the hands of a skilled trial attorney, can be used to impeach  the client’s veracity, besmirch his/her character, limit his/her medical complaints and ultimately undermine his/her credibility.

On the other hand, the medication chart, if properly used by the plaintiff’s counsel can explicate the drugs used to control the client’s pain:  hour by hour; day by day; and week by week.  Nurses’ notes are often replete with entries documenting a patient’s discomfort, reaction to medication and the patient’s progress or lack of it.

The key to the use of medical records is to know how to read it or how to find someone to assist you in its interpretation.  One should approach the medical records as a story about his/her client, in which her physical condition is a manifestation of her impairments, disabilities and loss of well-being.

XIX.  Why Can One Collect for Medical Care and Pain and Suffering in the Past, Present and Future

A client is entitled to be compensated for her injuries which are proximately caused by the defendant’s negligence. The expenses incurred for medical care due to the defendant’s negligence are a factor the jury can consider in assessing damages and in determining a monetary award.  The jury is not permitted to guess or speculate, but must base its decision on the facts in evidence.  The medical records and expert medical opinion provide the jury with the facts upon which it can make an informed, reasonable and  intelligent decision.

There are times when medical records, reports and comments from collateral sources such as workmen’s compensation files are admissible in evidence within the discretion of the trial judge.  These types of records are frequently used by defense attorneys for impeachment purposes.  The more frequent tactical reason for which they seek their use is to inform the jury that the plaintiff has already received monetary benefits from other sources.  If the plaintiff, for example, has lump summed his compensation case, an itemization of the money received is contained within the settlement agreement.  The agreement also contains the client’s signature with some boilerplate language that the plaintiff is fit or able to return to work.  As a general rule, collateral sources are inadmissible.   Shea v. Rettie, 287 Mass. 45 (1934), but their admissibility into evidence on the issue of the plaintiff’s malingering is within the trial judge’s discretion.  Goldstein v. Gontarz, 364 Mass. 800, 808-809 (1974);  Pemberton v. Boas, 13 Mass. App. Ct. 1015 (1982); Corsetti v. Stone Co., 396 Mass. 1 91985); See also, James N. Esdaile, Jr., The Collateral Source Rule, Vol. 68, No. 3 Mass. L. Rev. 102 (Sept. 1983).

XX.  Jury Charges

A jury charge, although it comes at the end of the case when both trial counsel are emotionally exhausted, is an opportunity for persuasion which should not be lost.  It is at that point that the judge tells the jury the rules under which they decide who wins.

Some judge have standard charges from which they never vary.  Some are open to suggestions and actively solicit proposed jury instructions; and others, particularly newly appointed judges, look to trial counsel for proposed jury instructions as an aide in their learning process.

By the time you reach the judge’s instruction of the law to the jury, the case is almost over, but it is important that the jury understand what they are being told.  Often jurors are told the law, that is, it is read to them, but they have little sense of what it means or what they are supposed to do as a result of being “given the law”.

An attorney can assist the jury in their understanding and aid his client’s case by submitting proposed jury instructions on the issue of medical damages which are clear and concise.

If there are claims concerning unusual aspects of the plaintiff’s care for which compensation is sought, one should include a case citation to substantiate his proposed jury instructions to the judge.  The mere argument of a claim for medical compensation is hollow unless some precedent can be cited either within your jurisdiction or from other leading jurisdictions.  If one is trying “to make new law” it is advisable to cite cases which are as nearly analogous to the client’s claims as one can.  You want to suggest to the trial judge that you are seeking legal evolution and not revolution.

XXI.  Settlement Negotiations

It is a well documented fact that approximately 90% of the cases filed in court are settled prior to trial.   Attorneys, although schooled in the law, must learn the techniques and strategies of negotiation through experience, and trial and error.  The means by which you become a good negotiator is beyond the parameters of this monograph but it is axiomatic to say that one is persuasive as an advocate if he or she can support his position by well documented facts.

The medical care rendered by health care providers is also a means, in part, by which the attorneys, both plaintiff and defendant, prior to trial, go about the task of evaluating the economic value of the client’s case.

The extent of the plaintiff’s injury and the likelihood of future disability is, in part, predicated upon the picture portrayed in the medical records.  Since an insurance adjuster is probably less knowledgeable about the nuances of your client’s medical care and treatment than you are, it is incumbent upon the skilled practitioner to organize, document and package the information in the most easily digestible manner.

In order to get the attention your client deserves, it is important to provide the insurance adjuster with an organized, substantiated and distinctive file on your client – a little incentive for him/her to direct his/her energies to your case out of the perhaps hundreds that are in  his/her files.

Practice Tip:  You can inexpensively create a negotiation or settlement journal or book by photocopying, and indexing the medical records.  This journal should contain a narrative of the facts as they occurred and describe the medical treatment in chronological order.  Each time the narrative refers to an examination, a doctor’s report, a hospital admit note, a consult note, a pivotal x-ray, etc., it should contain a note in parentheses such as, see tab number 1 of medica record.  In this manner, the persuasive nature of the narrative is enhanced by easy reference to the underlying facts.

This ‘packaging’ of pertinent material also makes it easier for the adjuster to read. It eliminates the problem of loose and/or missing pages and creates a narrative theme for the plaintiff’s case.  It may also have the additional benefit of intriguing the adjuster by the professional manner of your presentation, enough so that he/she will take the time to read it.

At a minimum, such a journal disciplines you to get your file in order well in advance of trial.  It also informs the defendant’s attorney that he is dealing with a professional who is willing to exert that extra effort on behalf of his client.

Arthur F. Licata

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