Medical Records are Often the Defense's Focus in Personal Injury Trials

Medical Records are Often the Defense's Focus in Personal Injury Trials

As lawyers, we know every case we handle is different. We also know that every trial we participate in is different. Plaintiff’s cases get presented in many different ways, and they get defended in a myriad of ways too.

Nevertheless, there are some common threads. One of the most important ones is the role of medical records in trials.

Types of Medical Records Used in Personal Injury Cases

A typical personal injury plaintiff will have thousands of pages of medical records before their case goes to trial. The vast majority of those records typically support the plaintiff’s claim. For example, emergency room records may say that a patient/client went to the ER with complaints of neck, shoulder and hip pain following a motor vehicle accident. Records may also reflect things which are clearly traumatic injuries, such as fractures, serious ligament tears, and concussions.

Insurance Defense Strategies that May Harm Your Case

Not surprisingly, insurance companies and their lawyers don’t talk much about those records. Instead, they follow a “needle in the haystack” approach. Defense attorneys have someone in their offices look at each and every page of the available records and highlight even the smallest discrepancies in them. They then use those discrepancies in trial to try and create doubt about the validity of a plaintiff’s claims.

In fact, the cross-examination of many plaintiffs and the physicians who treat them sometimes consist of nothing but questions about medical records. A defense lawyer may conduct his or her entire questioning by just by going over a pile of highlighted records with a witness.

To give just one possibility, assume a middle-aged person claims a back injury from a car crash. That person might be confronted with a record which shows they received a back x-ray as a teenager, even if there is no evidence that the x-ray showed a serious injury or problem. A defense lawyer will rhetorically ask why the injured person did not mention the previous x-ray to their current doctors - even when the prior x-ray reflected no real injury and the person was perfectly healthy for years afterward.

The highlighted entries are often fully consistent with the plaintiff’s claim when considered in context with other information in the records, or even information on the same page. In the previous example of a back x-ray, other entries on the same page might say, “Patient has minimal pain complaints but will receive x-ray as a precaution.” Nevertheless, when snippets from a record are read or described out of context, they can create confusion or questions about a person’s injuries or claims.

If you’ve been seriously injured and want to pursue the compensation you deserve, call our Clearwater personal injury lawyers at Roman & Gaynor!

Steps You Can Take to Protect Your Personal Injury Claim

In our experience, juries usually see through this type of cherry-picking and consider the totality of the evidence. People can recognize minor discrepancies as being just that. Even so, it is worth thinking about what personal injury plaintiffs can do to try and protect themselves from cross-examination of this type.

Plaintiffs cannot control what physicians or other health care providers actually write down in their records. What they can do, however, is be very careful when they fill out forms themselves.

Many health care providers have “new patient” questionnaires which consist of multiple fill-in-the-blank pages. Patients can find it difficult or aggravating to fill out each and every part of these, because some questions may seem irrelevant or downright silly. Even so, they should do so as truthfully and accurately as possible. The accuracy of a provider’s diagnosis, along with the effectiveness of their treatment, may depend on it.

For people involved in personal injury claims, the stakes are even higher. Any inaccuracy or discrepancy in a patient’s intake papers will be seized on by the defense. A defense lawyer will argue a plaintiff is dishonest, or at least “memory challenged,” when a single entry they make is contrary to other information in the case. Of course, this argument carries more weight when the disputed entry appears in the patient/client’s own writing. That is harder to explain than an error made by a doctor’s office or third party.

Thus, our advice for everyone - and for those who suffer personal injuries in particular - is that they carefully, accurately, and completely fill out medical questionnaires and other forms. Anyone who doesn’t heed this advice will find out that anything they say can and will be used against them.

Contact a Board Certified personal injury attorney at Roman & Gaynor for experienced, trial-tested representation.

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