It happens every time I try a case. You, as my client, have a permanent injury that will bother you and hamper you for the rest of your life. For each appointment, you travel across town, sit in the waiting room, look at the same old people magazines, and after 15-20 minutes, you get called into the doctor’s office where you sit for another 10-15 minutes, looking at the skeleton posters on the wall while smelling the antiseptic spray in the cold room. The doctor comes in and you spend 15 -20 minutes, make a plan after giving them an update, then check out, and leave, get in your car, and fight traffic on the way back home or to work. And you don’t just do this once, you have done it nearly 100 times considering physical therapy and radiology visits. And in addition to all the time it takes you, you still have to run your family and your life. You have to get kids to school and to practice. You still have to go to the store and get dinner prepared. It is not like you get extra time to just go to the doctor.
This injury doesn’t just affect you. It affects nearly everyone you come into contact with. It sucks time and energy out of each day. You have to plan around it. Other people have to intervene because of your treatment and help out. Spouses help. Friends and kids help and pay some sort of price for each visit you have.
When you have finally reached a plateau, the last thing you want to do is go back to the doctor again. BUT – in your personal injury claim… sometimes… occasionally, it is the right thing to do. Let me explain why.
The Insurance Lawyers “Hinting Defense”
First, you have to understand what defense attorneys try to do at trial, which I call the “Hinting Defense.” They try to insinuate and imply something insidious about you without having the mettle to come straight out and say it. No, they will say, “Isn’t it odd she hasn’t gone back to the doctor? Everyone goes to the doctor if they have pain.” Or, “No one else was hurt in this collision. The plaintiff was the only one hurt.” Any time I hear this, I try to drill down to what the underlying message is. That underlying “hint” of a message they don’t have the fortitude to come out and say with their own lips is, YOU are a liar, a fraud, and a cheat. I am always looking for this insidious and deceptive message, and I call them out on it. I tell jurors that if they believe what the hinting defense is doing and believe my client is a liar, fraud, and a cheat, then they should give us NOTHING. And I mean it from my heart. BUT- if they find that you are honest and doing your best, the jury should award full justice and not let the defense get any discounts for calling someone a liar in open court just because they are trying to save an insurance company money. It is wrong.
So what does this have to do with you going back to your doctor every 6 months? Plenty. If you have a permanent injury, perhaps had surgery, physical therapy, and recovered the best you are going to recover, and have been released by your doctor, why should you go back? Because of the “Hinting Defense” you are about to face from the insurance lawyers. Here is what they do in the deposition of your treating doctor:
Q: Dr. Clarke- do you expect your patients to come to you if they are still having problems and pain?
A: Well, yes, generally they do.
Q: Now, you released Patti Plaintiff last year from your care, correct?
Q: And that was over 18 months ago, true?
Q: And in that 18 months, she hasn’t seen you? Has not made any appointments? Hasn’t obtained prescriptions?
A: No, no and no.
Q: She could have gotten much better, possibly? You just don’t know, do you?
A: I do not.
Q: And you cannot state with any medical certainty that she is having ANY PROBLEMS NOW, can you?
A: I guess not.
Do you see what just happened? The insurance lawyer has injected uncertainty in your care, and in your current claims of pain. Obviously, per the defense, you are not hurting or you would have seen the doctor.
Combat the “Hinting Defense” by Keeping Your Doctor Well-Informed
How do you combat this? You go to the doctor about every 6 -8 months. You give your doctor a general update. You tell your doctor, if true, that you are still having pain. (ALWAYS be truthful, of course!) You ask your doctor if there is anything new he/she suggests that you can do to alleviate your pain. You let your doctor know how you have changed your life and habits to accommodate your pain and limitations.
One of the downsides to this fix is that the insurance lawyer may ask you why you have kept going to the doctor if it does no good. The truthful answer is that your want your doctor to be kept in the loop and not in the dark. Any adverse inference will likely be better for you if the doctor can give testimony on current information. The insurance lawyers try to play a “heads we win, tails you lose” type game with you. I will call them out on it. They cannot have it both ways.
So, If you have not been back to the doctor in a while and you are just getting back to living your life and “toughing it out” with your new normal, please understand the importance of going back to update your doctor, even though it likely will not change your physical outcome that much. However, there may be other new techniques and medications the doctor may want to try also. You never know until you ask.