What can be more important in a personal injury case than medical records? In considering some of the factors that I want to bring to your attention in today’s blog, I thought back to how I started in tort law or injury law. I began my legal career in a personal injury defense firm in the 1980s, where my boss would frequently go to the Middlesex County courthouse to read medical records of various clients who had cases that we were defending. He would have them sent to the clerk’s office of the local superior court, often in Middlesex County. I quickly learned that when you file a personal injury case, you are opening yourself up, including your complete medical condition, to the other side. The medical condition to be investigated could even involve the time period before the accident. Yes, it is open for scrutiny. The concept is that when you put a case in suit you have in effect waived the right to privacy on that issue, at least for the most part.
This is not to say that there is always, or even often, reason for concern. Sometimes the prior medical history is, as they say, non-contributory, meaning that the client had no pre-existing history or condition that is relevant to the current case. That is a good thing. Additionally, I recently had a case where I encountered a narration of the accident that not only supported my client’s injury but also his whole narration of how his injury had happened.
How helpful is it when the client’s version of the accident is supported in the medical records? A lot. This client went to the hospital immediately after the accident and obviously had not retained the services of a lawyer and therefore he had not had any chance to be mindful of legal considerations. What he said at the hospital regarding how the injury occurred was very probative, as we lawyers like to say. To add to the intrigue, if you will, was the fact that I did not represent this personal injury client until fourteen months after his accident. As a result, I had a lot of reconstructing to do and the medical records helped me on that.
The first thing I noticed in the medical records was that they described “extremity pain [meaning legs and arms] after a mechanical fall”. The term “mechanical” is used quite often in medical records. There was specific mention of complaints to his shoulder. Indeed, the client had rotator cuff surgery months later, so this entry, occurring on the day of his accident, was a very important entry. As often happens with medical records, what is there once, gets repeated in successive medical encounters. It did here. In this instance, the repetitious entries benefitted my client.
At the hospital, they took x-rays and it showed that the gentleman did not have an acute fracture, which means that he did not have a recent fracture. However, the fact that they took x-rays did create even more support for the contention that this client had injured his upper extremity. As often is the case, the full damage would be revealed only be from a CT Scan or an MRI. Those diagnostic studies look at more than the condition of the bones so they are used to determine far more than a fracture. After a few months’ time, he had an MRI which revealed a full thickness rotator cuff tear, a very significant injury that we were successful in showing occurred at the time of the fall.
Because the records said “mechanical fall” and because they also corroborated his injuries, we got great support from the medical records. I was appreciative for that piece of very good news because not having gotten the case until fourteen months after the fact, much of the helpful liability evidence was gone. Thus the narration of the fall by the client within twenty-four hours of its occurrence was all the more important.
I will say that the records can giveth and can taketh. There can be the good in the records and the bad. As it says under Assessment and Plan for this gentleman, “Fall, likely mechanical fall, slippery ice surface.” That was very nice but the next sentence was a bit disconcerting because it said, “ Patient gait and balance likely compromised by long standing knee pain.” You can well imagine how an insurance company can use that to say that the man’s walking had been compromised and that that was the reason for the fall. We were very successful in the case so that point did not hurt us. But you can well imagine the potential harmful effects of a reference calling into question a client’s gait.
As I review the medical references in this blog, I then saw, “Patient says that he fell when he slipped on ice concealed by a puddle in front of his residence.” That was exactly what the client had said all along. Because he said it in the hospital, i.e.before a lawyer was retained, it allowed me to reconstruct the events in a reliable and favorable fashion. The records go on in describing the fall, “Patient unable to get up, he required the assistance of two people to stand.” But again the bad happens as they note “a separate fall two years ago when he lost his balance.” Now that in and of itself may not be a factor and it was not in this case. But anything in a fall accident reflecting on the person’s inability to walk can be an issue.
In this particular case, the records were on the whole extremely helpful and a great source to build a case long after the personal injury was suffered.
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