INJURY LITIGATION ADVICE

 

What Will Be Needed?

What or who will be needed to project and convince of damages in this case?


Will the medical records be sufficient or will lay witnesses be necessary?


Such lay witnesses are members of the family, neighbors, co-workers, social friends, ministers, church people, and local neighborhood acquaintances who note change abnormality, and function losses but have no personal relationships to the client.


From the time of initial interview and case intake, jury effect and impact must be considerations.


All of the comments and instructions regarding preparation of a personal injury case in this text are related to going to the jury. Should a case settle prior to that point, it will have done better than one which was prepared for with settlement in mind.


Your lawyer needs a detailed history of past and present medical treatment, including names and addresses of physicians.


What damages are compensable? The injuries and damages that are listed in medical records are compensable and are obvious on their face. Substantial damages are those which result in function changes and in how this person is different pre-trauma versus post-trauma.


The only thing for which a plaintiff is compensated is the DIFFERENCE between the pre-trauma and the post-trauma state. It does not matter what his pre-trauma condition was. He could have been the “Marlboro Man” and still appear that way, but his degeneration to a lower level demands compensation.


The plaintiff could have been a borderline emotional cripple, a weak individual, someone who was predisposed to all kinds of injury, illness, and disability; but if the negligence legally caused these to happen sooner, damages exist.


Clients need a notebook to record facts, they will use to answer all subsequent interrogatory questions, to keep a diary of each and every expense, and where they may write questions directed toward their attorney or the treating physicians.


A diary of symptoms, doctor visits and how these symptoms interfered with your life. Any ideas they or members of the family might have which help in preparing such a litigation should also be written so as not to be forgotten. A very important purpose of such a notebook is to have fundamental answers to questions which determine whether or not there are damages and how much those damages are.


The answers need to be detailed, lengthy, complete, and honest. As well as describe activities and circumstances which may or may not seem important at the time of the writing.


On the surface, most of the issues seem to be medical problems and the information should be present in the medical record.

Impairment is a medical evaluation. 

Disability is a social evaluation.
The assignment of an impairment function, that magic number which generally is a poor description of the function loss, is what often is left to the physician. 

Disability evaluation is to be done after considering everything. Impairment is only a small part of disability. 

Injuries are not always obvious, when there is no amputation or deformity, when death has not occurred, an injury may produce some subjective complaints with few objective findings to support the complaint. 

Evaluation, investigation, and completion of the medical records become the task at hand. The physician should know, should be informed of the abnormalities which are elicited during these initial processes and by the diary which is being kept. It is absolutely essential that information is complete, but totally true and without any exaggerations. 
IN PERSONAL INJURY CASES, THE ATTORNEY MUST BE AWARE OF SEVERAL PROBLEM AREAS:

The assembling of the history and symptoms of injury cases is an ongoing process. Several interviews are necessary to elicit this information.

The patient should have a list of complaints to review with the doctor. The patient must inform the doctor of every change and impairment. It must be emphasized that when there is function loss, there is damage or abnormality. 

This can be established:
“Minor” or less extensive injuries are often overlooked or ignored because of other “major” existing problems. Yet minor soft tissue injuries may lead to permanent functional loss. 

Unless such loss is documented, it cannot be substantiated or easily claimed. In soft tissues, such as neck injury, proper treatment depends on accurate diagnosis, and accurate diagnosis depends entirely on the physical examination “superimposed” on an accurate evaluation of symptoms and functional losses. 

Physicians and lay people are not easily impressed with soft tissue injuries unless they have had one.  Therefore the job of the attorney is more difficult; it requires more diligence and ingenuity, and convincing demonstrations and descriptions. 

Because the treating physician frequently becomes committed to his earliest diagnosis, even though the finding may change as treatment progresses, there is often the tendency to justify the first diagnosis without enough re-evaluations. 

A typical example may be the contusion of a sciatic nerve or sacroiliac dysfunction. There is much pain and radiation, and there may be significant functional loss, but a lumbar disc injury is the easiest to blame, but not what needs to be addressed.