Personal Injury Litigation and Correcting Erroneous Medical Reports
Some doctors are not very receptive to changing their records. They may take offense that a lawyer or litigant is asking them to change a record. As long as you are not asking the doctor to say something that is not true, there is nothing wrong with asking a doctor to amend a report. But the doctor may not see it that way. If the doctor will not amend the report, you are going to have to approach the problem from a different angle.
Example: I recently had a case in which a doctor and client were not on good terms. For some reason, there was simply a personality conflict between them. I needed the doctor to make a reasonable correction in his report and he refused to do so. I had no choice but to find another doctor to make the correction, and to have my client examined by this second doctor strictly for purposes of the litigation. After this doctor examined my client and reviewed all of the medical records, he wrote a report that helped the case.
Bringing a doctor in to the case for litigation purposes is a last resort. This doctor’s testimony will be subject to attack on the grounds that he or she is a gun for hire, that is, that his or her opinion is for sale to the highest bidder. The defense lawyer will argue that the opinion was offered only because of the litigation and that it is tainted in this respect. That can be a devastating attack, especially if the opinions stated in the report are controversial.
Nevertheless, if there are no other options, you should not hesitate to seek a second opinion. You can be sure that if your opponent hires a doctor to examine you or review your records, the doctor will be inclined to say what your opponent wants him or her to say. That is the reality of personal injury litigation. (See Chapter 9 with regard to the defense medical examination.)
Errors in doctors’ reports are extremely common. Most of the errors are not problematic. The date of accident may be recorded as 11/7/58 when it actually occurred on November 7, 1998. You really do not need to correct this error since the defense lawyer in unlikely to attack your case on this basis. This error can easily be explained away at trial if necessary. Clearly, this was simply a clerical error. There is nothing wrong, however, with asking the doctor to correct this kind of error.
It is common for a doctor’s report to erroneously state that the client’s left hand was broken when all of the other evidence establishes that it was the right hand. This is also obviously a clerical error. On the other hand, if you injured your lower back in the accident and your doctor’s report states that it was your upper back, you may have a serious problem.
If you do not address this issue, the insurance company and the defense lawyer may suggest that you were not hurt at all. He or she may suggest that you claimed an upper back injury to the doctor, but have claimed a lower back injury at trial because you were not really hurt. If you were really hurt, the defense lawyer will argue, you would have been consistent. It is true that liars get caught in their web of deception as it gets thicker. You will need to nip this problem in the bud by asking your doctor to review his or her notes and correct the error.
Once the lawyer proves to the insurance company both that it must compensate you for your injuries and that those injuries were significant, the company realizes that a jury or arbitration panel is likely to return a large award against it. You will have maximum bargaining power when you, your lawyer, and the insurance company all realize that the company is on the hook. Rather than pay large sums of money to both you and its lawyers, the company will likely choose to cut its losses at this point and make a settlement offer.