At my law firm, we strongly recommend that you limit the information you provide to your medical providers when you have a pending personal injury claim. Many people do not understand that when they file a catastrophic claim, the insurance company from the other side (that is the insurance company representing the negligent driver or the defendant) has the right to subpoena and obtain all of your medical records. This includes records from any healthcare provider.
Often times, the personal injury plaintiff (you) will show up at the doctor or physical therapist’s office and the first thing they will be asked is – how are you feeling? What have been you doing? The plaintiff might have had complications to the original injury while going about their daily activities.
He or she might say – “A few days ago I was watching my nephew and he starting crawling out of the high chair and I quickly reached out to stop him and fell. My back has been really bad since then.” The doctor could note in the records – patient hurt back after falling. The patient could be especially sore for a few days after the fall but then return to the regular pain from the original injury.
Years later, when the civil claim for the original back injury is being litigated, the insurance defense attorneys can point to that medical note and claim that the ongoing back injury is due to the fall and not the previous accident.
In one particular case, my client commented to the doctor that he had been fishing and while reeling in the fish, injured or exacerbated the injury to his back. This client was in a car accident that was not his fault and was making a personal injury claim for a low back injury.
One year later, we were mediating the car accident case. During the mediation, the insurance company argued to the mediator that the plaintiff had re-injured his back during fishing. The plaintiff was involved in a serious car accident and suffered back injuries as a result. It is possible that the fishing incident increased the injury, but it does not mean the original back injury does not exist.
So while the insurance attorney’s claim was not true, it had an effect on the plaintiff and the mediator. The plaintiff felt that the insurance defense attorney would claim at trial that he was no longer injured by the car injury and was instead injured by fishing. It was also possible that the insurance attorney would state that if the plaintiff had been fishing, then how serious could his car accident injury be? Now that is exactly what the insurance attorney was going to do, and the information was not helpful to the plaintiff’s personal injury claim.
Importance of Clear Communication with Your Doctor
This is not to imply that doctors and healthcare professionals are in league with the insurance defense companies. They are trying to help you get better. But it is possible that they can unintentionally help the defense with a quick note in your medical records.
I am also not advocating that you are dishonest with your doctor or withhold important information about your health. Instead, I recommend to my clients that since their medical records will be available to the defense attorneys, they must communicate clearly about any subsequent injuries. Casual remarks to a healthcare professional can come back to haunt them.
What you should do is honestly provide the information the doctor needs to know. If they specifically ask you – have you been fishing? – say yes, if it’s the truth. If you have re-injured your back as the result of another incident, then of course you have to disclose this as we always need to be honest.
However, you do not have to volunteer information that is not necessary for your medical treatment. If a doctor questions you about what you have been doing, you can say you have been doing your normal daily activities. If that includes fishing, he or she can specifically question you about that. If so, then answer honestly.
As long as you remember that in civil litigation your statements to your health care providers are not confidential and may be used against you, you can avoid unintentionally harming your catastrophic claim.