Your Chart Notes As Evidence: Helping Lawyers On Both Sides Sort Out Medical Damages

You are probably aware that medical records are important evidence in any personal injury case. This article gives an overview of the ways chart notes and other medical records are used to assess medical damages (the dollar value of the medical “loss” sustained by the injured person as a result of another’s actions or negligence). Also, we’ll look at how medical records are used and misused in legal settings.

Medical damages include: 1) doctors’ bills for examination, evaluation and treatment; 2) hospital bills; 3) diagnostic tools, such as X-rays, etc.; 4) physical therapy bills; 5) nursing services; and 6) prescriptions.

At the time a case is settled or a court judgment is entered, the medical damages amount reflects not only expenses which have already occurred, but also estimated future medical expenses. Medical records are used to verify what treatment did in fact take place. Medical opinions are also necessary to verify what future medical treatment will probably be needed. Personal injury settlements and judgments are final. They are not left “open” for future medical expenses.

Perhaps more importantly, however, lawyers and the courts look to medical records to verify causation, the fact that the injuries and conditions in the records resulted from the incident in question. In personal injury claims, unlike many Workers’ Compensation claims, die words “secondary to” or “accident related” are sufficient to establish causation.

In addition to proving medical damages, verifiable dollar amounts already expended or likely to be incurred, medical records are also key to proving these other types of damages:

1. Past lost time from work (income loss);

2. Future time expected to be lost from work;

3. Loss of earning capacity due to a disability resulting from the injury which impairs future income earning potential.

4. Pain and suffering, including any adverse impact on quality of life enjoyed prior to the injury/loss.

5. Consequential injuries and conditions. For example, limping as a result of a leg, knee or hip injury, may result in low back problems. Or, after immediate treatment for lacerations and muscle strains, more subtle injuries or residuals may appear, such as impaired concentration, memory loss, lower threshold for frustration/anger or symptoms of post-traumatic stress disorder. Medical records are especially crucial in relating these to the accident since they may have been overshadowed by the need to treat more serious injuries and more severe pains.

Persons suffering injuries risk going uncompensated for consequential losses which do not become evident until after more major injuries have subsided. Insurance attorneys will always question the causal relationship by pointing to the time gap. Also, once the patient has completed treatment for more major injuries, he/she may he reluctant to bring up other more subtle symptoms, especially if they are potentially embarrassing – like snapping at family members, forgetting one’s keys or not being able to stay on task.

Even if they are clearly related to the accident trauma, these and other consequential injuries and conditions will go uncompensated unless they are verified by medical records. The medical records must verify both their existence and the fact that they were caused by the accident in question.

Increasing recognition in recent years of the psychological effects of trauma, such as closed head injuries, suggests the need for a broader perspective on diagnosis and the possible need for referral following accident injuries.

Medical records may also be used in a legal setting to your patients’ detriment. It is important for doctors to keep in mind that extraneous (i.e. non-medical) comments in your records may affect the outcome of your patient’s liability case, especially if brought to trial.

A clever defense attorney may seize upon seemingly innocent comments and blow them out of proportion during a trial so as to question or even impugn the motivations of the patient, the physician or both. Comments typically used in this way include any mention of a “lawyer” or any mention of “litigation” or the patient’s “personal injury case.”

This calls for caution. Comments not directly related to medical care should probably not appear in chart notes. They can and have been used in ways that result in greatly under-compensating, if not totally undermining, legitimate personal injury claims.

Your chart notes function not only to guide you and other medical professionals in providing proper treatment, but also function to assure a fair and accurate assessment of the questions of causation and damages your patients’ personal injury claims.

This article was prepared by Dennis H. Black