Naturally, simply saying “It hurts!” is not enough to establish a personal injury claim. The defendant, or his insurance company, is going to require objective evidence of your injury before agreeing to pay up. Submitting medical records is one of the most effective ways of establishing your injury as an objective reality. Sometimes, however, they can serve as one of the most effective ways for a defendant to defeat your claim.
To win a personal injury claim you are going to need to seek medical treatment immediately after your accident, remain truthful throughout the process, follow your doctor’s instructions to the letter, and faithfully participate in follow-up medical treatment. You will also need to avoid common mistakes that could undermine your claim.
What Are Medical Records?
Medical records are documentary accounts of the diagnosis and treatment of your injury, including:
- Paramedic/ambulance records
- Emergency room records
- Hospital records
- Testing records: X-rays, MRIs and CT scans
- Records from follow-up appointments
- Physical therapy records
- Other records that may apply to your particular case
These records should include the dates of your treatments and doctor’s appointments; a complete description of your injuries throughout the progress of treatment; the outcome of treatment (or, in the case of long-term injuries, the projected outcome of treatment); a cost breakdown of all treatment; a concise summary of your treatment; an evaluation of your current medical status; and future treatment needs in enough detail to calculate anticipated medical expenses.
Medical Records and the “Best Evidence” Rule
In a lawsuit, courts apply something called the “best evidence” rule that insists upon the production of original records rather than photocopies. You probably don’t need to worry that your healthcare provider will have already discarded your medical records by the time you file your claim. Federal law requires most healthcare providers to retain these records for at least six years, and most providers retain them for far longer than that.
How You Can Use Medical Records to Prove Your Case
As the injured party, you can can use your medical records to:
- Assess the extent of your injuries to determine whether your claim has merit;
- Prove the existence and extent of your injuries, either in court or at the settlement table;
- Calculate your current damages, including intangible damages such as pain and suffering;
- Calculate your anticipated future damages, if any;
- Determine the cause of your injuries; and
- Determine whether doctors exercised reasonable care (in a medical malpractice case).
Maximum Medical Improvement (MMI)
Maximum Medical Improvement (MMI) is the point, certified by your doctor, when your condition has stabilized; that is to say, it is not expected to get much worse and it is not expected to get much better. The American Medical Association’s formal definition reads, “…a condition or state that is well stabilized and unlikely to change substantially in the next year, with or without medical treatment.” You may need to reach MMI before you can resolve your claim.
If you are lucky, reaching MMI means that you have completely recovered, but you should still be compensated for all that you have been through. If you are not so lucky, you will never be the same again even after you reach MMI (imagine being confined to a wheelchair for the rest of your life, for example). If the doctor certifies this, your noneconomic damages for intangible losses such as pain and suffering could be greatly increased.
The Functional Capacity Evaluation (FCE)
If you are working age, and if your ability to return to your previous occupation after reaching MMI is cast into doubt due to lingering disability caused by your injuries, your doctor may recommend a Functional Capacity Evaluation. An FCE will evaluate your ability to work, and it may even include a cognitive evaluation if you’ve suffered a traumatic brain injury. The FCE can be used as the basis for claiming damages based on lost earning capacity.
The Good Faith Certification Requirement in Medical Malpractice Cases
In order to combat frivolous medical malpractice claims, Connecticut requires that, in order to maintain a medical malpractice lawsuit, the plaintiff or his lawyer must file:
- A written opinion from a healthcare provider, practicing in the same or similar specialty, stating that there is evidence of medical negligence and providing a factual basis for his opinion.
- A sworn statement from you or your lawyer affirming that a reasonable inquiry has been made, and that your claim has been filed in a good faith belief that it is valid.
Medical records are instrumental in meeting the good faith certification requirement.
Medical Records Matter at the Settlement Table, Too
Yes, you will need to submit medical records as evidence in court – at least if you end up filing a lawsuit. But why does that matter so much, since upwards of 90 percent of personal injury claims are resolved through out-of-court settlements rather than trial? The answer to this question can be found in the aphorism, “All bargaining takes place in the shadow of the law.”
An insurance company is not going to be motivated to bargain with you unless it believes you can prove your claim in court with admissible evidence. And documentary evidence of your condition, prepared by licensed professionals, is one of the best kinds of evidence there is. You need to prepare for settlement negotiations in much the same way as you would prepare for a trial.
Both the Connecticut and federal government have enacted laws that protect the privacy of your medical records. It would be a shame to have to sacrifice your right to privacy by being required to submit your medical records as evidence in open court, just because you were injured by someone else’s misconduct. Fortunately, Connecticut allows you to seek a protective order to keep this information confidential from the public (although not from the defendant).
How a Defendant or an Insurance Company Can Use Your Medical Records against You
The defendant and/or the insurance company will certainly want access to your medical records in order to deny or reduce the value of your claim by:
- Conducting an independent assessment of your injuries and the merits of your case; and
- Searching for objections that they can raise against your claim.
Legitimate Medical Records Requests
When you claim an injury, you are putting your medical condition at issue. Because of this, you will be expected to release all relevant medical records to the insurance company or the defendant so that they can use them to evaluate the validity and value of your claim. If you refuse to do so during settlement negotiations, the other side will refuse to issue a settlement offer. If you refuse to do so during a lawsuit, you will lose the case.
The opposing party will probably demand medical records from the following sources, at the very least:
- Physical therapists
- Diagnostic testing facilities
The fact that you have to release your medical records to win your claim doesn’t mean that all of your medical records are fair game, however. You must sign a privacy waiver in order to grant someone else access to your medical records, and you can limit the scope of this waiver to medical records that are relevant to your claim. You should definitely limit the scope of the waiver, because failure to do so is asking for trouble.
Independent Medical Examinations
If your medical records support your side of the story, the opposing party is not going to like it. One way that insurance companies in particular like to deal with this situation is to have an “independent” medical examination (IME) conducted by their doctor. You might be required to submit to such an examination based on the terms of the insurance policy or in response to a court order. Otherwise, you can refuse – but your refusal might be used against you in court.
The purpose of the IME will be to:
- Confirm that you are, in fact, injured;
- Confirm whether your injury is as serious as you say it is;
- Confirm whether the injury was caused by the accident; and
- Find a way to poke holes in your claim.
If you end up filing a lawsuit, you will be entitled to access the IME report – at least if the defendant plans to use it as evidence at trial. Chances are well over 50/50 that the report will tend to support the opposing party’s side of the story. Your lawyer will see to it that the jury knows that the insurance company chose the doctor who conducted the examination.
Possible Objection: Medical Treatment from Non-Physicians
Some medical treatment providers are not physicians, and their treatment carries varying degrees of credibility. Some examples include:
- Massage therapists
- Other medical treatment providers who are not licensed physicians
It could be difficult to justify such treatment to an insurance company or to a jury, even if you desperately needed them and even if they greatly improved your condition. It is always easier to justify such treatment, however, when your treating physician recommends them than when you seek them out on your own. If you think that you could benefit from such treatment, ask your treating physician to recommend it in writing.
Possible Objection: The Injury Was Not Caused by the Accident
This objection breaks down into two types of objections: the objection that your injury was pre-existing, and the objection that your injury didn’t occur until after the accident.
Objection: “Your injury was pre-existing”
This objection is most likely to surface if you made the mistake of giving the defendant or the insurance company unfettered access to your medical records. In other words, if you failed to restrict the scope of your medical records privacy waiver to records that were related to your injuries. If you make this mistake, the opposing party will “go fishing” in your medical records for anything they can find to use against you.
Objection: “Your injury didn’t occur until after the accident”
This objection is most likely to arise if you didn’t seek medical treatment right away, or if your condition worsened yet you failed to seek further medical treatment. A second medical examination might reveal that your injury is more serious than you thought, and you will need medical documentation of this before you claim additional damages.
The value of a personal injury claim is affected not only by the statute of limitations deadline, but also by the tendency of evidence to degrade over time. Don’t let that happen. Contact Berkowitz Hanna today to schedule a no-obligation case evaluation. Call us now or contact us online to get started.