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DOES YOUR DOCTOR HELP YOU WHEN YOU ARE INJURED AND HAVE TO SUE?

By: Guy O. Kornblum, Certified Civil Trial Advocate, National Board of Trial Advocacy and Member, Million Dollar Advocates Forum

How does your physician or medical care giver respond when you are involved in a lawsuit arising out an injury or illness?

I have stories, good and bad, about physicians and their patients when the patient has to sue because of an injury or illness. This suit could involve:

• A personal injury claim you make arising out of an injury, such as an auto accident or fall;

• A medical negligence case you bring against another physician or medical care provider;

• A claim against an insurance company arising out of a wrongful denial of insurance benefits, such as a medical or disability policy or any uninsured or underinsured motorist claim.

Your case will likely depend on establishing the nature of your medical problem, whether it be an injury or illness. In that case your primary care physician, whether family practitioner or internist, as well as a specialist who is caring for you, may be called on to provide information in support
of your claim.

As a lawyer representing plaintiffs or claimants in these situations, I frequently contact my client's physician for information about the medical aspects of the case. We have a physician-consultant who works exclusively for us who also makes these contacts. Initially all we usually want are medical records and reports which we need to review so we understand the nature of the medical problem and treatment. No problem there; we submit an authorization and the records are usually released for copying and submission to our office.

After that it can become more difficult. Physicians and other medical care providers are busy. Their schedules are full. They do not want to disrupt their normal patient care load with a meeting with an attorney even though we pay the physician or other medical care provider for their time. It is difficult to schedule a meeting, and the physician's office staff is very protective of the patient care schedule. I understand, but it is essential for the treating medical care provider to understand how important it is for them, in turn, to understand that their patient needs their help beyond just medical care when their illness of injury involves a lawsuit or claim against another. The lawyer's job is to understand the case, and that understanding must come from a personal one on one with the principal medical care provider so that the lawyer can adequately represent the client and patient.

I am not talking necessarily about doctors serving as independent experts to provide opinion testimony about medical issues where they engaged simply to express those opinions and have no treating role. This is about patient care—a serious illness or injury that needs the principal care giver to explain and provide information about what is medically probable in the future.

Not too long ago I represented a very fine 40-year-old amateur athlete who was still very active athletically. He was injured in an serious intersection accident in which he suffered severe trauma to his neck, which already had developed an underlying arthritic condition which had been symptomatic. As is often the case, the trauma of the accident aggravated that condition, which now became advanced and very troublesome. He had to reduce his athletic efforts, and was facing serious cervical surgery and long recuperative period. The driver of the other vehicle was underinsured, so we sought recovery against his own insurance company for underinsured motorist benefits. I needed the orthopedic surgeon to testify. He sent me his schedule which shocked me; he wanted $20,000 per day to testify. That was unaffordable, so we faced being unable to provide my client's case for damages resulting from the trauma. Eventually we worked it out, but it was still very costly, more so, in my view that it should have been.

On the other hand, I recently mediated a very large claim under and individual disability policy involving a lawyer who suffered from serious cervical disk disease and could not continue his professional practice as a trial lawyer. His insurance policy provided protection in the event he was disabled from that occupation. He physicians, orthopedic surgeon and primary care physician supported him. The parties agreed to mediate the case. We needed the primary care physician, who had special training in occupational medicine, to provide a statement so the mediator and the other side would understand the basis for my client's total disability claim. Not only did the primary care physician cooperate, he participated in an hour conference call during the mediation with all parties present. I asked questions and he provided answers to my questions and those of the mediator and the lawyer for the insurance company. Several hours later, the case settled very favorably for my client. No doubt the cooperation of the physician by agreeing to be part of the mediation (the doctor interrupted his attendance at a conference where he was speaking to be a part of the mediation) was a major factor in getting the case resolved. We not only achieved a very good settlement but we avoided the expense and time of long depositions of all the doctors, and all the disruption to their practice that this causes. One physician helping saved considerable time of other medical care givers. The physician charged a fair fee for his efforts.

I have many other stories, mostly good ones, but a few where physicians have not helped their patients but attempted to avoid being a part of the legal system when their client needs their support.

Whether it is carefully filling out forms for insurance companies, providing written reports, talking to their patient's lawyers, assisting in the mediation process, or providing a deposition, it is important for medical care givers to understand that they are essential to helping their patients when they need them in a lawsuit or to make a claim to asset their rights.

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