Bodily Injury: Tactics and Discovery

• Author: Leonard Bucklin
• Pages: 469-506

46-1

Chapter 46

Bodily Injuries: Tactics and Discovery

§46.1 Reading the Medical Literature: Shortcut Medical Research

§46.2 Shortcut Medical Research: The First Three Tools

§46.3 Shortcut Medical Research: The Fourth Tool

§46.4 Earnest Medical Research: Medical Textbooks and Journal Articles

§46.5 Using Medical Research in Evidence and at Trial

§46.6 Deciding Upon, and Hiring, Medical Doctors to Testify

§46.7 Physiatrist as Additional Medical Witness

§46.8 Considerations in Hiring Additional Doctors: The Four C’s

§46.9 Always Interview Potential Medical Experts; Take the Records to the Interview

§46.10 Deciding Upon a Medical Consultant

§46.11 Summarizing Medical Records

§46.12 Common Medical Abbreviations

§46.13 HIPAA Compliance: Medical Authorizations

§46.14 HIPAA Forms and Checklist: Serving Subpoena on Medical Provider

§46.15 The Seven Elements of a HIPAA-Compliant Release

§46.16 Plaintiff’s HIPAA-Compliant Release

§46.17 Defendant’s HIPAA-Compliant Release

§46.18 HIPAA Compliant Release Form—Authorized Person and Specific Directions

§46.18.01 Some Records Must Be Separately Requested

§46.18.02 Release for Records Which Must Be Separately Requested

§46.18.03 Has the Patient Exercised the Option to Change the Records?

§46.19 The Client Can Help Build Your Trial Notebook

§46.20 Form: Checklist of Plaintiff’s Bodily Injuries

§46.21 Developing Client Information Forms

§46.22 Plaintiff’s Counsel Must Get IME Agreements in Writing

§46.23 Form: Stipulation for Physical Examination

§46.24 Form: Client Handout for Defense Medical Examination

§46.25 Get Plaintiff’s Social Security and Income Tax Information

§46.26 Form: Request for Social Security Earnings Information

§46.27 Form: Request for Copy of Tax Return, Form 4506

§46.28 Form: Request for Transcript of Tax Return, Form 4506-T

§46.29 Instruct Bodily Injury Plaintiff Clients by Take-Home Forms

§46.30 Form: Take-Home Instructions to Bodily Injury Client

§46.31 Employment and Education Records

§46.32 Form: Authorization re Employment and Education — From Client to Own Attorney

§46.33 Form: Authorization re Employment and Education — Requested From Adverse Party

§46.34 Form: Additional Paragraph Protecting Client Giving Authorization re Employment and Education

§46.35 Requesting Employment Records to Compute Loss of Earnings

§46.36 Form: Letter Request for Employment Records to Compute Loss of Earnings

§46.1 DISCOVERY COLLECTION 46-2

This chapter targets the litigation attributes that arise out of bodily

injury, primarily the features 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 checklists regarding bodi-

ly injury, such as outlines for direct or cross-examination of doctors,

are presented separately, in the following section titled “Bodily In-

jury: Deposition Checklists.”

§46.1 Reading the Medical Literature:

Shortcut Medical Research

Some medical research and knowledge is a sine qua non of han-

dling bodily injury cases. You must know at least the basics of the

medical injury or disease involved. You must understand the injury,

its anatomy, the objective and subjective manifestations, the differ-

ential diagnosis involved, the usual treatments, and the probable

prognosis. You need to know these so that you can:

• Intelligently evaluate the case and make sensible settlement

decisions;

• Secure the appropriate medical examinations to prove your case;

• Gain maximum understanding, and discuss alternatives,

when speaking to doctors about the case, or preparing them

to testify;

• Be most effective in bringing out the correct testimony (and

heading off problems) during the direct examination of your

attending physician; and

• Be effective in cross-examining the adverse doctor.

Moreover, you need to learn the fundamental 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 un-

derstanding so that you can accomplish the five items listed above.

Fortunately, in today’s world, it is relatively 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 illustrations and de-

scriptions, written for lawyers, of the medical issues in

commonly 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 Internet. Short cut

medical research is not taking unlimited amounts of time to ac-

complish the task by doing everything possible; but rather shortcut

medical research is doing everything reasonably necessary to make

intelligent decisions and win the case. Using the four elements of

shortcut medical research, in most personal injury cases, a busy liti-

gator 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 max-

imum edge in the litigation, 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 com-

pact 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 Diag-

nosis 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 alternative causation for the condi-

tion 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,

remarkably easy to use, and authoritative. (It is written by more than

300 medical experts in all fields of medicine.)

The Merck is the first step in Shortcut Medical Research for

lawyers. The Merck is where you should look first for medical infor-

mation 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 people who have broken a bone

in an arm or leg need physical therapy” and to prevent tightness 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 respect-

fully 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 em-

phasize 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 Shortcut

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 infor-

mation 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 bodi-

ly 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 — 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

46-3 BODILY INJURIES: TACTICS AND DISCOVERY §46.2

authoritative. The first place doctors look to learn details about a

medication is the Physicians Desk Reference (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 important 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 conditions 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-in-

jury medications, you can use your PDR® to find chronic ailments

that the injured party has forgotten, or ailments that have symptoms

similar to the problems occurring after the traumatic injury, or to find

if the drug used before the traumatic injury may have had side-ef-

fects 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 having, and to find the side-effects and com-

plications 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 relaxant. 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 set-

tlement negotiations: “This medication John was taking before the

automobile accident causes dizziness and loss of balance. 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 reference book. The third reference is obvious, yet few

attorneys have it available — a one volume book with medical illus-

trations and descriptions, 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 re-

lationship 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 tai-

lored for personal injury lawyers. Do not be tempted to rely on the

Internet 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 a discussion or a drawing

when you need one. One book that you can become familiar with,

can flip the pages, and can photocopy illustrations for the file, will

save you time over searching on the Internet each time you need to

educate yourself. (It is best if that one book has an accompanying

CD with the illustrations available for you to print out. Then you are

on the quickest path to using the illustrations to maximum effect in

depositions, settlement, and trial.)

For most practices, you do not need an expensive medical atlas

or set of detailed drawings. All you need for everyday use is a one

volume book with clear — patient and jury friendly — illustrations.

This one volume book should also have sufficient text to describe

the basic problems and issues in various types of traumatic injuries.

Over the years, I have had a number of these books. My first one

was a 65-page book describing only back and neck injuries. I was

turning to it so often as I built deposition questions and settlement

brochures, not to mention trial preparation for back and neck cases,

that I decided to get something that contained more than back and

neck injury information. I bought one of those multi-volume sets of

books with lots of medical text and gorgeous illustrations. Because

of the medical knowledge and medical illustrations I had on my side,

the multi-volume book did in fact pay for itself in better settlements

and trial results. However, I soon realized that the big multi-volume

text had more information that I needed for 99% of the cases in a

busy personal injury practice law firm. Moreover, I had to wade

through pages of material that the authors included for purposes of

completeness but really was not needed in most instances in our law

firm. Although we were mainly a litigation firm, and drew referrals

of personal injury work from attorneys in four states, most cases

involved the same common sorts of traumatic injuries. My next book

choice proved right: a one volume book written for lawyers that cov-

ered all of the common types of injuries in bodily injury litigation.

There are a number of one volume legal-medical books available

today, from a number of publishers. One of those books is Quinn

and Morris’s Medical Evidence, available from James Publishing, at

www.jamespublishing.com. The book was originally conceived by

three Quinns (one a surgeon, the second a professor of anatomy, and

the third was Terry Quinn). Terry Quinn, a great trial lawyer against

and with whom I had the pleasure of litigating cases, knew which

medical injuries needed to be discussed for the education of lawyers.

The book has hundreds of its color illustrations on an accompanying

CD, so the book allows you to easily customize and make exhibits

for evidence or settlement purposes. Plus, the book has a discussion

of most of the issues that arise in presenting the two sides of various

standard types of disputed injuries. For example, if the anterior cru-

ciate ligament is torn, whichever side of the litigation you represent,

the Quinn’s’ book tells you enough so you understand the statement:

“The Lachman test was negative.” For another example, if the MRI

of the spine shows injury, the book explains the significance of der-

matomes. You cannot rely entirely on your own doctors giving you

information if you do not know the medical issues that allow you to

ask the right questions; certainly the adverse doctor will not volun-

teer to tell you. I am using Quinn’s Medical Evidence to illustrate the

point because I am familiar with that book, among others, and that is

the one I would pick. You might personally prefer another.

Whatever book is your preference, my recommendation is direct

and blunt and has five parts:(1) buy a one volume medical illustra-

tions and issues book written for lawyers; (2) put it in your library and

get generally familiar with it; (3) read the appropriate section every

time you start a bodily injury case, (4) print out the applicable medi-

cal illustrations; and (5) start using the illustrations at the start of the

case. Get educated quickly on injuries you have not handled before.

On injury types you have handled before, quickly review the medical

issues. Print out the applicable illustrations right away. Knowledge is

power. Showing the client, your doctor, the adverse doctor, and the

adverse settlement negotiator medical illustrations of the injury, right

from the start of the case, projects the image of a law firm that knows

the business of personal injury litigation. If you have knowledge of