The best way to convince an insurance company to settle is by accurately and completely documenting both the severity of your injuries and the defendant’s complete or substantial responsibility. This requires prompt investigation of the accident by your lawyer and his or her investigative team, and careful monitoring of your treatment and medical progress. It also requires clear comrnunication between lawyer and doctor so that the opinions in the medical report are stated in a legally acceptable way.
An interesting and important dilemma arises when your doctor’s report comes back with crucial errors or omissions. You or your lawyer may need to ask your doctor to correct any mistakes. How one deals with this problem can have a huge impact on convincing the insurance company to settle and on the future course of litigation.
For example, in some states the doctor’s opinion must be stated to a legal degree of certainty. If those words are omitted from the report, the defense attorney may argue that the report does not pass legal muster and should be disregarded by the judge, jury, or arbitration panel. You or your lawyer must remedy this situation in advance of the day of trial. How you approach this problem is not as straightforward as it may appear.
The first question to ask yourself is how to communicate the need for a corrected report to the doctor. Realize that anything you put in writing to the doctor will probably end up in your file at the doctor’s office. You can expect that the defense lawyer will subpoena your doctor’s records. If there is a letter in your file that asks the doctor to change a report, the defense attorney may try to use it to attack you and your doctor’s opinion at trial.
This lawyer may suggest to the jury that you were improperly trying to influence your doctor. Or, he or she may suggest that the doctor only wrote an amended report because of an inappropriate communication from you. Therefore, whenever you request a corrected report in writing, use the words if justified. For example, write to the doctor, Please indicate, if justified by the medical evidence, that all opinions in your report are stated to a reasonable degree of medical certainty. This way, it does not appear that you are trying to influence the doctor to say something that is not true.
Whenever you are writing to a medical provider, choose your words very carefully. Always assume that your written words will some day become known to the defense lawyer and the insurance company. Always assume that the defense lawyer will subpoena your doctor’s records. Review the sample letters on pages 33 through 35 for acceptable letters to medical providers. Make you letter very generic. The less said, the better. What you do not say generally cannot be used against you.
Given the danger presented by letters to doctors, it is preferable that requests for corrected records be made over the telephone. In a telephone conference you can speak freely about the kinds of corrections that are needed in the medical report. One quick phone call will usually resolve the problem of an erroneous medical report.