The following is a guest blog post by Lynn Hollenbeck. Lynn is a litigation attorney with Bunting Drayton & Alward in San Francisco, with expertise in premises defense, insurance defense, asbestos defense, and construction defect.
For defense counsel, plaintiff’s medical records often contain unexpected sources of information beyond examination findings, diagnoses, and prognoses. You may not find the dispositive document that disproves causation, but the records can bolster other issues in the case.
In personal injury cases, you should always subpoena the plaintiff’s medical records well in advance of the plaintiff’s deposition and review them thoroughly as you prepare to depose. See 10 Steps for Depo Prep.
Here are five tips to help you conduct a better review of a plaintiff’s medical records:
- Look for contradictions. Determine whether the versions of events that were given to physicians contradict other evidence in your case. For example, physician notes may show that a plaintiff denied alcohol use, but blood tests reveal elevated levels of blood alcohol. Such contradictions may be used to impeach the witness; a version of the incident given to medical providers that conflicts with other evidence will undermine the credibility of the person testifying.
- Consider effect of other maladies. Look to see whether another medical problem may have contributed to the incident. For example, is there a history of dizziness (often referred to as “syncope”) or balance issues that may have caused or contributed to the plaintiff’s injury?
- Check on vision. Opthalmologists’ records may show that the plaintiff’s eyesight is poor and that corrective lenses were prescribed. If so, ascertain whether the plaintiff was wearing those corrective lenses at the time of the incident.
- Search for preexisting conditions. Did the plaintiff suffer from another malady that limited or impacted daily activities before the incident involved in your personal injury case? If so, the damages that the plaintiff claims may not result entirely from the injury claimed in the lawsuit.
- Check for the absence of reports of injury or pain. Pay particular attention to the injuries complained of to the first post-incident medical provider. For example, if the knee injury alleged in the complaint isn’t mentioned in the medical records until a year after the incident, this remoteness in time may cast doubt on its relation to the incident at issue.
Reviewing thick volumes of medical records may at first seem to be just a tedious task, but it can be one with big rewards. Sometimes deciphering the provider’s handwritten notes will give you the key evidence to successfully use in deposition and trial.
For more on handling bodily injury cases, turn to CEB’s California Tort Damages, chapter 1. For the procedure for introducing hospital and medical records in evidence, with sample forms and a discussion of their use at trial, check out CEB’s California Personal Injury Proof, chapter 13. And if you’re new to personal injury practice, you’ll need to review California Basic Practice Handbook, chapter 7.
Other CEB blog posts you may find useful:
- 12 Tips for Direct Examination in Depo or at Trial
- A Picture Is Worth…a Winning Case?
- 5 Questions to Ask When Considering a Structured Settlement
- What To Expect When You’re Expecting a Deposition: A Checklist for Preparing the Deponent
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