Using Medical Records
in the Pretrial Phase of Litigation
I. Evaluating the Case
A. Most cases cannot be fully evaluated without reviewing the medical records.
B. This is especially true in medical malpractice and nursing home cases, which rely heavily on medical records.
1. What the patient’s condition was, what the doctor or nursing home knew, and what was or was not done must be gleaned from the records.
2. When the records and the plaintiff’s version of events differ, it is very difficult to prevail, unless there are special circumstances.
C. Automobile accident cases rely less on records for liability issues, but the records are still important for determining damages.
II. Using Medical Records During Discovery
A. Medical records can identify witnesses who should be deposed.
B. Medical records can be used to gain admissions about facts.
C. Medical records can be used for cross-examination.
D. Medical records help you understand the facts enough to be able to issue interrogatories and requests to produce, to frame deposition questions, and to know which experts to seek out.
III. Medical Records and Depositions
A. Many fact witnesses are asked to interpret handwritten notes on medical records.
B. Medical records can be used to pinpoint what a defendant doctor did at a particular time, what the differential diagnosis was, and on what he or she based the differential diagnosis.
C. Medical records can be authenticated at depositions.
D. Medical records can be used to prepare your plaintiff for surprises.
1. It is not uncommon for a plaintiff to forget about a minor injury for which he or she was treated.
2. Or to forget about some tests or treatment.
3. And, occasionally, a plaintiff is surprised to see that what a doctor wrote in the records is not what she recalls that he told her.
IV. Using Medical Records to Determine Medical Expenses, Pain and Suffering, and Overall Damages
A. Medical records are how you determine which doctor visits were related to the automobile accident which is at issue in your case.
1. Related visits and their bills “count” toward your specials.
2. These same visits and bills “count” in what the subrogated party may be allowed to recover.
B. Without the records to indicate what happened at the visit, you would be unable to tell whether the visit was for the broken leg from the accident, or for the flu.
C. The content of the records also helps determine damages, because the doctor’s notes indicate how your client was doing, whether or not he was healing, and how much pain he suffered from.
D. The records document the length of treatment, both the duration and the number of visits, which plays a role in the value of the case.
E. Sometimes records reveal helpful facts which increase damages, such as:
1. “Joe wants to go back to work, feels his boss really needs him.”
2. From physical therapist: “Pat is really working hard at increasing her strength and appears to be diligent in her home exercises.”
3. Any objective findings which support the injury
F. Sometimes, of course, records reveal facts which decrease the value of the case, such as:
1. “Melanie is now six weeks post accident, fully healed from her neck sprain, and now seeks to link a new problem – a ‘backache’ – to the accident.”
2. “I do not believe Jeff is trying to get better.”
3. “I suspect Elyse to be a drug seeker.”
4. “John had a prior back injury on _______, which is the primary cause of the injuries I saw him for today.”
V. Use of Medical Records for Pre-Trial Negotiations
A. In automobile accident cases, you send all relevant medical records and bills to the adjuster with your demand letter.
B. You point out, in your demand letter, particularly helpful portions of the records.
C. You argue for a greater value because of the number of visits or duration treatment or severity of injury.
D. A doctor’s obvious commitment to the patient, and acceptance of a causal relationship between the accident and the client, is a bargaining chip as well.
E. In nursing home cases, particularly helpful records can move a case toward settlement.
1. The most frequently-seen example is when a nursing home resident’s condition is thoroughly documented by a hospital.
2. The impartial records showing abuse or neglect that could only have happened at the nursing home are very convincing.
VI. Using Medical Records when Working with Expert Witnesses
A. In medical negligence and nursing home cases, the records are key to obtaining an expert witness.
B. Without the records, and expert cannot form an opinion as to the conduct of the potential defendant.
C. Some key points to keep in mind when sending records to an expert for review:
1. Provide all of the facts
a. This includes both good and bad facts.
b. You will not know if the expert is truly “with you” if he or she does not know the entire picture.
c. Therefore, you must send all relevant records, which includes all records the other side is reasonably likely to have.
2. Don’t ignore the problems
a. If there is a particular issue you are afraid of, bring it up to the expert. If you don’t have a case, it is better to know now.
b. “There is a 6-month gap in treatment … is that a problem?”
c. “My client is also a diabetic … could that condition have masked the symptoms?”
d. “There is one fact my client did not tell her doctor … “
3. Never hang your expert out to dry
a. If your expert is surprised at deposition or trial because you withheld facts, you are sunk.
b. Experts (like all people) hate to be embarrassed.
c. You must prepare the expert for all problems in the case.