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The Dangers of Speculation By a Medical Provider in a Personal Injury Case

I often have clients who report to me that their medical provider will corroborate the crucial fact that the injury was caused by the accident. A review of the records, however, may reveal that there is a “possible” relationship between the accident and the injury. Sometimes, the term “could be related” is used. Thus, the causal connection is unclear at best.

Words like “possible” and “could be” are not opinions that pass legal muster for acceptable conclusions. In fact, they pose a fatal problem. The courts will often refer to them as speculative. Doctors must conclude to “a reasonable degree of medical certainty”. In the same vein, an engineer must conclude to a reasonable degree of engineering certainty. This is expected by Massachusetts courts whether the question is explicitly asked or not. The minimum requirement for a conclusion is proof by a preponderance of the evidence. An acceptable question would therefore be: “Doctor, do you have an opinion to a reasonable degree of medical certainty whether the injury is more probably than not related to the accident?” Tactically, your lawyer may want to phrase that question in a different way. The prior question is meant to give you an idea of what the doctor must think at a minimum for his/her conclusion to be used in a personal injury case.

Experienced practitioners will tell you that there is no substitute for clarity. That is why you will see questions with a simple inquiry: “Doctor, do you have an opinion as to whether the accident caused [the client’s] condition?” Implied in that question are all the elements listed in the preceding paragraph. A follow up question can be if the conclusion or opinion is to a reasonable degree of medical certainty. If the answer[s] is in the affirmative, the foundation has been laid for success.

Causality is crucial and speculation is to be avoided at all costs. For a full and fair resolution of the case, a question should follow as to what the future holds for the client. That too requires an opinion to a reasonable degree of medical certainty. If appropriate, an attorney can also ask about the client’s level of impairment according to acceptable guidelines, such as the American Medical Association’s impairment rating. Additionally, there should be case-specific questions beyond the standard questions regarding causality, prognosis and impairment.

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