Bodily Injuries: Tactics and Discovery

• Author: Leonard Bucklin
• Pages: 299-358

46-1 (Rev. 4, 8/08)

46. Bodily Injuries:

Tactics and Discovery

This chapter targets the litigation attributes

that arise out of bodily injury, primarily the fea-

tures involving medical facts and medical wit-

nesses. We will address situations distinct to

bodily injury litigation, giving you strategy

and tactics advice, as well as tools and forms.

Deposition and trial testimony outline check-

lists regarding bodily injury, such as outlines

for direct or cross-examination of doctors, are

presented separately, in the following chapter

titled “Bodily Injury: Deposition Checklists.”

§46.1 Reading the Medical

Literature: Shortcut Medical

Research

Some medical research and knowledge is a

sine qua non of handling bodily injury cases.

You must know at least the basics of the med-

ical injury or disease involved. You must

understand the injury, its anatomy, the objec-

tive and subjective manifestations, the differen-

tial diagnosis involved, the usual treatments,

and the probable prognosis. You need to know

these so that you can:

TIntelligently evaluate the case and

make sensible settlement decisions;

TSecure the appropriate medical exami-

nations to prove your case;

TGain maximum understanding, and

discuss alternatives, when speaking to

doctors about the case, or preparing

them to testify;

TBe most effective in bringing out the

correct testimony (and heading off

problems) during the direct examina-

tion of your attending physician; and

TBe effective in cross-examining the

adverse doctor.

Moreover, you need to learn the fundamen-

tal facts and principles of the medical injury or

disease quickly. On the plaintiff’s side, you are

not paid by the hour for self- education, and you

need to start moving in the right direction from

the start. On the defendant’s side, you know the

claims manager for the insurer has been self-

educated by previous cases in her files. She

assumes you also know the injury issues as a

matter of your previous work defending cases.

Except when the injury is unusual, you will find

it difficult to maintain your reputation of “we

do a lot of personal injury insurance defense” if

you charge for a great amount of time doing

self-education medical research on the medical

issues involved in ordinary personal injury

insurance defense.

You do not have to be the world’s best expert

in the medical problem involved, but you do

need to have a sufficient basis of understanding

so that you can accomplish the five items listed

above. Fortunately, in today’s world, it is rela-

tively easy for you to secure the necessary

knowledge. Frequently, with three references in

your office, in just one hour of time you can gain

the medical knowledge you need. With only

three references at hand in your office at the start

of the case you can be miles ahead of the adverse

attorney in understanding how to handle the

damages aspects of your bodily injury case.

The three references you should have in

your office are:

1. the Merck Manual®,

2. the Physicians Desk Reference®, and

3. A one volume book with medical illus-

trations and descriptions, written for

lawyers, of the medical issues in com-

monly occurring injuries.

These three books, if ready and waiting in

your office, are the key to what I call “shortcut

medical research.” The fourth element in what

I call “shortcut medical research” is the Inter-

net. Short cut medical research is not taking

unlimited amounts of time to accomplish the

task by doing everything possible; but rather

shortcut medical research is doing everything

reasonably necessary to make intelligent deci-

sions and win the case. Using the four elements

of shortcut medical research, in most personal

injury cases, a busy litigator will have done

enough to understand the medical issues —

and use them aggressively in the litigation.

He/she will be able to both have the power of

knowledge and also to project the power of that

knowledge in illustrations and words.

(If you want do the maximum medical

research, to have the maximum edge in the lit-

igation, I’ll get to that at §46.4 Earnest Medical

Research: Medical Textbooks and Journal

Articles.)

§46.2 Shortcut Medical Research:

The First Three Tools

The Merck Manual®

Now we are going to tell you the doctors’

secret — the one compact book they use as a

bible, a crutch, and a portable memory. They use

the Merck Manual®(the full title is The Merck

Manual of Diagnosis and Therapy®, but a busy

doctor may refer to it as The Merck). Doctors

ordinarily do not admit that they look in the

Merck Manual®at those times when they cannot

remember all the signs or symptoms of an injury

or disease or when they are doing a differential

diagnosis or when they need to consider alterna-

tive causation for the condition the patient has.

With the advent of PDA’s, graduating medical

students are now doing their internships and

residencies with the electronic version of the

Merck Manual®in their PDA. In short, for the

time-starved physician and surgeon, the Merck

Manual®is where doctors often look first for

their own education or memory help.

More than a century ago, the American drug

manufacturer Merck & Co. published this

small book as an aid to physicians, reminding

doctors that “memory is treacherous.” Albert

Schweitzer carried a copy to Africa in 1913, and

Admiral Byrd carried a copy to the South Pole

in 1929. The stated goal of the Merck Manual®

has not changed:

“To provide useful clinical information to

practicing physicians, medical students,

interns, residents, nurses, pharmacists, and

other health care professionals in a concise,

complete, and accurate manner.”

Merck Manual®is the world’s largest selling

medical text and has been translated into more

than a dozen languages. It is compact, remark-

ably easy to use, and authoritative. (It is writ-

ten by more than 300 medical experts in all

fields of medicine.)

The Merck is the first step in Shortcut Med-

ical Research for lawyers. The Merck is where

you should look first for medical information

about the injury involved in the case you are

handling. Even in the most mundane injury

case, take a quick look at The Merck at the start

of the case. Let me give you an example. In the

edition of The Merck that I am looking at now,

under “Fracture,” it says that immobilizing a

bone causes the muscles to become not only

weak but also tight. Furthermore, “most peo-

ple who have broken a bone in an arm or leg

need physical therapy” and to prevent tight-

ness the therapy should start while the bone is

still immobilized in the cast and last “6 to 8

weeks.” As a plaintiff’s attorney, you can

respectfully ask the treating physician of your

client to consider ordering physical therapy.

Armed with that knowledge, you have a

whole line of questions suggested to ask on a

deposition or trial that will emphasize the

injury (as not just a broken bone, but also as an

injury that affected muscles and the limp that

now prevents long walks) to a claims manager

or a jury. On the other side of the table, the

defense attorney can read about arthritis in

The Merck, and can have enough knowledge to

discuss the claimant’s x-rays and the subject of

pre-existing arthritis as the real cause of a

claimed back injury. These examples illustrate

my point: The Merck is the first step in Short-

cut Medical Research for lawyers.

You can go to www.merck.com and read

the Merck Manual®on the web. Merck & Co. is

a huge drug company providing the informa-

tion as a public service. But instead you

should buy the book. Having the book is a

time-saver and an inducement to both you

and your legal assistant to look at The Merck

every time you start a bodily injury case. The

few dollars for The Merck Manual of Diagnosis

and Therapy®will be money well spent the

next time you — or your legal assistant —

§46.2 BUILDING TRIAL NOTEBOOKS 46-2

want to read about an injury or disease, and

get the basics in ten minutes.

The Physicians Desk Reference®

The second of the triad of medical tools you

should have in your office is again something

every doctor uses and considers authoritative.

The first place doctors look to learn details

about a medication is the Physicians Desk Refer-

ence (PDR®). I suspect there is not a physician’s

office, hospital, and pharmacy in the United

States that does not have a copy of PDR®, either

sitting on a shelf or in electronic form in their

computer. The publisher claims that nine out of

ten doctors consider PDR®their most impor-

tant drug information reference source, and

that claim is probably true. As with the others

in the triad of books I am talking to you about,

if you handle a half dozen personal injury

cases, you should have a copy of Physicians

Desk Reference (PDR®) available. PDR®is the

standard prescription drug reference. It tells

you what the drug is used for, and it tells you

the possible complications of its use.

Now, why do you need the PDR®? Answer:

you need it because most people have condi-

tions for which they take daily medications

before they are injured; and after the injury

every doctor prescribes medication for the

injured plaintiff. With a list of the party’s pre-

injury medications, you can use your PDR®to

find chronic ailments that the injured party has

forgotten, or ailments that have symptoms sim-

ilar to the problems occurring after the traumatic

injury, or to find if the drug used before the trau-

matic injury may have had side-effects involved

in either the cause of the injury or complications

after the injury. With a list of the party’s post-

injury medications, you can use your PDR®to

find problems of the traumatic injury that the

doctor has not mentioned, to find the level of

pain relief the doctor anticipates the patient hav-

ing, and to find the side-effects and complica-

tions of using the drug. For example, on the

plaintiff’s side, you will be alerted that you can

ask the doctor at trial questions such as: “You

prescribed both a pain killer plus a muscle relax-

ant. Why did John need to have both? Are there

dangers to John using the drug for the rest of his

life?” For example, on the defendant’s side, you

will be alerted that you can ask the plaintiff’s

attorney during settlement negotiations: “This

medication John was taking before the automo-

bile accident causes dizziness and loss of bal-

ance. Did you know John was taking it on the

day he claims he slipped and fell in my client’s

store? Did you know that although John did not

mention it in his interrogatory answers that one

of John’s medication’s he took ten years ago

shows that then he was having the same sort of

eye problems that he now claims are new?”

The PDR®is reprinted every year with the

new drug information, and every year, your

doctor’s office is constantly throwing out a

PDR®that is a year old. You can buy a new one

yourself for about $100. Or you can simply ask

your own family doctor to give you his last

year’s PDR®when it is going otherwise into the

trash. For personal injury litigation, a PDR®

that is a two or three years old is quite usable.

A lawyer’s medical anatomy, illustrations,

and injury issues book.

If you have more than a half dozen bodily

injury cases in the course of a few years, you

should have available in your office a third ref-

erence book. The third reference is obvious, yet

few attorneys have it available — a one volume

book with medical illustrations and descrip-

tions, written for lawyers, of the medical issues

in commonly occurring injuries. Get one with

clear, reproducible drawings of the basic

anatomy, for use in settlement brochures and

as court exhibits. The drawings you are looking

for will be simple, ones that will allow you to

read medical records and know the relation-

ship of the body parts mentioned in the records

of the patient. When you are in a doctor’s office

take a look at the diagrams he/she has in the

office to explain anatomy to patients. They are

the sort of diagrams that I am talking about.

You need illustrations like that in personal

injury cases to help you in (1) understanding,

(2) explaining and advocating to others, and (3)

making medical illustrations for settlement

brochures and court exhibits.

This one book should also have medical

issues discussion tailored for personal injury

lawyers. Do not be tempted to rely on the Inter-

net for all your information. It is true that there

are many pages of discussion on the Internet

regarding the causes and sequalae of injuries

and diseases. Do not be lulled by that; do not rely

on the idea that you can look on the Internet for

46-3 BODILY INJURIES: TACTICS AND DISCOVERY §46.2

(Rev. 7, 9/11)