Consistent & Appropriate Treatment Are Key To A Successful Case

You must treat consistently and appropriately if you want full compensation in any personal injury case.
 
  1. Inconsistent treatment means big gaps in treatment and/or failing to follow your doctor’s recommendations.
  2. Inappropriate treatment means continuing to do something that obviously hasn’t resolved your pain and discomfort despite repeated attempts. When one type of treatment doesn’t work then you must try a different kind of medical provider or technique. You can’t do the same thing forever and expect a different result.
 
Inconsistent and inappropriate treatment can kill cases.
 
Let’s look at three cases that are typical of what I see as a personal injury lawyer:
 
Client A gets into a crash and doesn’t get treatment for two months. He then goes to his family doctor who recommends an MRI. Client A finally gets the MRI a year later. Client A then goes to an orthopedic doctor who recommends a three-level cervical fusion. A cervical fusion is a highly invasive surgical procedure that requires replacing a damaged cervical disc with a cadaver bone and metallic hardware. It will cost him about $300K and he will likely be paralyzed if he doesn’t get it. He doesn’t get the surgery because he’s too busy. His out-of-pocket expenses consist of $200 in co-pays.
 
Client B gets into a crash and goes to a chiropractor. She treats a few times a week off and on for three months, stops treatment, and then returns to treating off and on again with the chiropractor. She discovers after nine months of treatment that she has cervical herniations. She doesn’t treat anymore but complains of continuing pain over a year later. She then consults with an orthopedic doctor who recommends a two-level cervical fusion that will cost her about $200K. Client B has the cervical surgery and is out of work and in a neck brace for three months. She lost three months of pay because she didn’t have FMLA or disability insurance. Her total out-of-pocket expenses are $250,000.
 
Client C gets into a crash, treats about 24 times with a chiropractor, and when her symptoms don’t resolve, has an MRI, which reveals the same type of cervical herniation as Client A & B. Client C goes to see an orthopedic doctor. The orthopedic doctor recommends Client C try injections and refers her to a pain management doctor. Client C has a series of facet and epidural injections, and her symptoms decrease. A few months later, those symptoms return, so she schedules a follow-up visit with her orthopedic doctor. The orthopedic doctor recommends a single level micro-discectomy, which is a minimally invasive technique to remove the impinging disc material and release pressure on the nerve. It does not require a cadaver graft or hardware, and it is often done on an outpatient basis. Client C has the surgery and returns to work the next day. Client C returns to her orthopedic doctor once every few months due to her activities aggravating her injury, but her orthopedic doctor doesn’t believe she requires a cervical fusion, although he thinks physical therapy might help her, so she does that. She still has some pain on occasion, but overall, she feels much better. The surgery cost about $50K. She has no lost wages. Her out-of-pocket expenses are only $50K.
 
Pop quiz time:
 
  1. Which case is easier to sell to a jury?
  2. Which case is a lawyer more likely file a lawsuit on?
  3. Which client is a lawyer likely to drop?
Here is how I view these cases:
  • While Client C has the least invasive surgery and arguably the lesser injury, her case is probably the most valuable and the best litigation case.
  • Client A has a very low value case and most personal injury attorneys would drop it unless there are very low policy limits. An insurance adjuster would likely make a very low starting offer.
  • Client B is an okay case, but it will probably settle pre-suit, and Client B will not be pleased with the result.

Treat consistently and appropriately if you want the full value of your case.

Discovery’s Role in Litigation

People love to threatened to file lawsuits whenever they believe someone has wronged them. However, in my experience, people are not nearly as enthralled with lawsuits after they encounter what is called “discovery.”

What Is Discovery?

Discovery is the process of gathering evidence for trial. Each side gets to request evidence or information that might lead to evidence that would be admissible at trial. The  Florida Rules of Civil Procedure has very broad discovery rules, and almost any type of information is discoverable. The information that either side seeks does not even have to be admissible at trial so long as that information might lead to admissible evidence.

There are several discovery tools. I will give you an overview of each discovery tool and how it is used.

I. Requests for Admissions

Both sides usually send Requests for Admissions to each other. They are limited to 30 requests without the court’s permission to send more unless the court grants more.

Something that a defendant typically asks a plaintiff to admit or deny in an automobile negligence lawsuit is “Admit that your vehicle had a fully operational seat belt.” The next question might be. “Admit that you were not wearing your vehicles fully operational seat-belt.” You can probably see how Requests for Admission might be used later on at trial.

Request for Admission not only help each side develop their cases, but they can also be used to generate attorneys fees if a party does not answer truthfully. In other words, if you claim you were wearing a seat belt, but later on it turns out that you were not, then the other side can asked the judge for its fees and costs because you were not truthful. Fees and costs can get very expensive.

There are only allowable three answers to a Request for Admission:

  1. Admit,
  2. Deny, or
  3. Without sufficient information to admit or deny at this time.
II. Requests for Production

Requests for Production allow a party to request documents and other tangible items from the opposing party. These are typically tax returns, medical records, correspondence between a party and somebody else who might be involved in the case, diagrams, maps, photographs, video recordings, audio recordings, and anything else that might be used at trial.

The Florida Rules of Civil Procedure even has a mechanism that I have used in the past to request inspect of a vehicle long it had been involved in a crash. I have requested other things in the past  like vehicle repair estimates, cell phone records,  GPS records, black-box data, and driver logs in commercial vehicle crashes.

Requests for Production can lead to a gold mine of admissible evidence. For example, requesting a drunk driver’s credit card receipts can tell you how much he had to drink prior to getting into a crash and how many bars he visited  that night. GPS and black-box data can tell you how fast somebody was driving when the crash occurred. Requests for Production  are one of my favorite discovery tools.

III. Interrogatories

Interrogatories are nothing more than questions that a party answers under oath. Some of the most common questions are whether somebody wears glasses or hearing aid, the names of the doctors that they have treated with, the parties prior crash history, and if the party had been using alcohol or drugs when the crash occurred.

Many attorneys send out the same interrogatory requests each time they file a lawsuit. I do not. I tried to tailor my interrogatory requests to the case as closely as possible. I sometimes do not serve interrogatories on a party until I receive my Requests for Production and Requests for Admission responses. I also rarely  use all of my 30 interrogatory questions because I want to keep some in reserve  just in case something new pops up about which I want to inquire.

IV. Depositions

Depositions or when a party testifies under oath before a notary public. The other side’s attorney can hold one day of 7 hours of questions, and if need be, the other side’s attorney can asked the judge for more time. Depositions are by no means fun. It is a very structured form of speaking and you must be very careful about what you say under oath.

I spend at least a half hour telling my clients how depositions operate and how to answer questions during a deposition–short but full, truthful answers are the key to a successful deposition.

Testifying is a very different way of communicating. When you speak with your friends, you may go off on tangents, decide that certain information simply is important so you will not discuss it, and you even be careless about the way that you describe things.. But in litigation that simply will not work. In litigation, the other side tries to make you out to be a liar, and the easiest way to do that is to use your own words against you. That is because everything in discovery can be used against you. It is not that you are a liar or deliberately shading the truth, but that is exactly how opposing counsel  will try to use your discovery disclosures against you.

What I tell my clients to do is to be exceedingly careful about every word they utter under oath. I tell them to answer to the  best of their recollections and to state that their answer is to the best of their recollections, but to fully testify to everything they do remember.

V. Court-Ordered Medical Examinations

While court ordered medical examinations are usually performed on plaintiffs, the court can order defendants to undergo court-ordered medical examinations. That usually occurs when the plaintiff alleges that a defendant ignored a medical condition,  did not take his medications, or had some sort of physical infirmity or illness in which the driver and maybe even his employer knew was a dangerous condition. A court ordered medical examination serves many purposes, but usually, it is used against plaintiffs to attempt to show that the plaintiff does not have a permanent injury. It is a defense lawyer’s way of trying to show that the plaintiff is not entitled to pain and suffering damages because the plaintiff does not have a permanent injury. There are a lot of rules  that govern court ordered medical examinations, and it would take an entirely new post to discuss them.

VI. Discovery is Hard Work

Reading this post may make you believe that discovery  is not a big deal. I can tell you that it is always a big deal with clients. They think it is highly intrusive, they do not fully answer the questions that defendants ask them, they leave things out either accidentally or deliberately, and sometimes they simply do not remember things in their past that you would think anybody would remember.

Litigation is very  tough indeed, and really, discovery is the toughest portion of all. I can teach my clients how to testify at trial. I can tell each them to answer the question the attorneys or judge asked them, and not the questions they wanted the attorneys or judge to ask them, and I can teach them to answer the question and then stop talking. But getting clients to fully answer discovery can be extremely difficult because clients do not understand, no matter how many times I tell them, how important discovery really is until the other side tries to use their discovery disclosures against them.

So what is discovery? It is a means of find evidence that hurts the other side’s case. Trust me when I say that opposing counsel has absolutely no interest in discovering evidence that helps your case. The entire purpose of discovery is to somehow hurt your case or help theirs.

I have had clients who have dropped their cases rather than engage in discovery. It can be that brutal. But if you handle it correctly and with utter honesty, then it can make your case long before you step into the courtroom.

I like discovery. It is pure legal chess. It is often the most satisfying portion of the case second only to winning.

That saying a helluva lot for a trial lawyer like me.