Doctor taking notes on a clipboard of injured patientIt’s pretty unfair.  The insurance lawyer and their adjuster have scoured your notes to see if they can find that one thing that can help them defeat your patient.  You believe you have done a great job of documenting all of your patient’s care, and you probably have, but the way that you present your notes may lead to drastically different outcomes when it comes to the adjuster’s eyes pouring over it.

For example, if your patient comes to you and you state in your notes, “Patient presents following mva with c/o neck pain, radiating into right arm, mid-back pain- onset post wreck of 3/27/19;  no prior history of neck pain. “   All of that is true, yet, further digging by the insurance company reveals that your patient did have an MVA about 12 years ago that resulted in treatment at the ER where they dug up an old record of neck pain at that particular ER visit.  Fast forward to your soon-to-be deposition time, you may be asked by the insurance lawyer defending the at fault driver in the recent case:

Q:  Doctor, isn’t it true that you rely upon the patient’s truthfulness when giving a history to you?

A:  Yes.


Q:  And if they don’t give you a full and accurate history, then that may affect your opinions?

A:   It is possible.


Q:   You were told there was no history of any prior neck pain, true?

A:   Yes, that is what my notes reflect.


Q:   Did your patient tell you she was involved in an mva 12 years ago that resulted in a trip to the ER with complaints of neck pain?

A:  No, I was not aware of that.


Well, guess what?  Your patient’s credibility just took a big hit.  


So what you say?  Well, for those of you that may ever do patient care on liens, you just made yourself wait a lot longer because you have unwittingly helped create a problem in the case that is likely to make the case value lower and and/or extend the litigation time.  

So you say, “Well, that is not my fault.  I didn’t get a total accurate history from the patient.”   Do you really think your patients understand how an irrelevant, single, acute incident from 12 or 15 years ago is going to affect their current case?   Have you ever stopped and off-the-cuff in the span of 15-30 seconds named every incident you received injury, especially when you don’t think it is a pertinent issue.  Your patient has no idea of how important that question is in their initial intake or consult.  Of course, I preach it to them, but guess what?  90% of them have already seen you before they ever think of picking up the phone and calling my office.  By the time I get a chance to counsel them, the mistake is made and “in the books” so to speak. 

You are the leader.  You need to lead.  You are their guiding light at the initial phase of treatment.  You can do just a couple fo simple things to avoid allowing the insurance company to screw over your patient:

1-            Make sure that you slow down taking your intake and explain to them the importance of answering this question thoughtfully and accurately.  Take just a few seconds more and say, “This is a very important question… have you ever treated for any neck injury before?  Ever seen a chiropractor in the past, or massage therapist?”   You will be surprised how just asking an extra question will provoke a past memory they initially glossed over. 

2-            Stay away from extremes that might put your client in a bind.  If they say they have no prior injury, you may consider saying that the patient has “no prior chronic neck injury.”   This way, if they forgot that errant wreck 15 years ago where they visited a walk-in clinic and had neck pain, you and your patient are covered and you haven’t put yourself out on a limb. 

3-            Document specifically what part of the neck is injured.   The neck is not just one part of the human body.  There are 7 vertebrae, numerous muscles and ligaments.  A prior “neck” injury and a subsequent “neck” injury may be two completely different type of injuries.  Is one antero-lateral on the right side; is the second one posterior left lateral?  Does one radiate to the shoulder blades where the prior one had no radiating pain whatsoever? 

Also, be aware of using pain scales.  One of the biggest issues I face is where the patient may be on medication, or just having a better than average day, and they report to you that their pain at that instantaneous slice of time is a “0”.    You have to understand the way the insurance adjuster looks at this. They believe that once a patient reaches a “0”, anything else thereafter is NOT RELATED to the car wreck they are treating with you for.  What you should do, and what I tell my clients to do, is to give an average pain scale since they last visited their doctor, or over the last several days.  I certainly do not want them to exaggerate their pain.  They have to put the pain in the proper context, because the insurance companies are experts and stealthily taking things like this out of context.

Guys, I do not make this stuff up out of thin air.  I am an active litigator.  I try more cases than most lawyers do year in and year out.  I take doctor depositions every single week.  Therefore, I have the advantage of seeing the same stupid defense lawyer schemes day in and day out, and we know how to shed the light of truth on them, but sometimes doctors unwittingly set traps that hurt their patients.    My hope is that just one of you will read this and pay attention and put some of these ideas into your practice for the betterment of your patients.  If you have any questions about any patient/legal issues, I heartily welcome your call.  I am here to serve. 



John Griffith
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Nashville Personal Injury Trial Attorney
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