When mediating personal injury cases, I often notice attorneys falling into the same traps time and again—especially when it comes to how they use medical records to support their cases or develop their defenses. To help you avoid these same errors, here are 10 tips on assembling a strong case that supports—or refutes—the claimed medical specials during your mediation.
- Understand the mechanics of the accident. You can ruin your client’s case simply by not understanding how an accident occurred and how it caused specific injuries. If the accident was a rear impact to a vehicle while plaintiff was wearing a seatbelt, know the injuries that could potentially result. Be sure that your explanation of the accident conforms with the resultant injury. Be sure to compare the science of the accident and injury to any statements made about how the accident happened.
- Deep dive into the details of the claimed injuries. For instance, if the plaintiff claims an injury to a specific joint, you should become extremely familiar with the joint in question and its location in the body. I have witnessed attorneys make full presentations in which they improperly identified a body part. Imagine the lack of confidence that creates for the parties involved in the mediation.
- Be familiar with any prior accidents, known injuries, and preexisting conditions. If the plaintiff has any known prior accidents, known injuries, or preexisting conditions, be just as familiar with them as you are with the subject injuries. Be sure to learn how these might affect the presently claimed injuries. Also, never assume opposing counsel is unaware of the prior accidents. Remember, many states do not require disclosure of open records requests.
- Use multiple forms of evidence to substantiate or refute any claimed limitations. Present any medical records that indicate the plaintiff discussed the limitations with a medical service provider. If there is a witness who will testify about the alleged limitations, try to get an affidavit. And if you can produce a “day-in-the-life” video that speaks to these limitations, do it! Even if the plaintiff simply creates a video using the camera on their personal phone, a video is an excellent way to demonstrate their claims.
- Do not surprise your client by asking that they show in real time any scarring or disfigurement. Instead, be prepared to present photographs and videos during the mediation. At the very least, make sure you have discussed the idea with the plaintiff well in advance of mediation day before suggesting they expose themselves to strangers at the mediation.
- Compile the medical records from providers who saw the plaintiff prior to the subject accident—bonus points if that provider saw the plaintiff before and during the treatment for the claimed injury! Not only may you have discovered an inexpensive “expert” witness, but you never know what other make-or-break information you might find.
- Identify any injuries or treatment that may not be related to the accident. If the medical records and bills indicate that the plaintiff received treatment for injuries alleged in the subject accident as well as treatment that seems unrelated—or that you know is unrelated—this needs to be flagged. Whether you represent the plaintiff or the defendant you will want to be prepared to discuss the treatments’ related and/or unrelated factors. If possible, parse out any questioned treatments from the claimed bills in advance. You do not have to share this information with opposing counsel but be prepared to address the issues in case they arise.
- Make sure all parties have the same set of claimed medical records and bills. You want to be on the same page about the amount of medical bills at issue before mediation day. Remember, insurance companies make business decisions, which means they need all the bills. They also need those bills to be accurate to start a meaningful negotiation on mediation day. Inaccurate or surprise bills can seriously derail your mediation day.
- Create a dynamic timeline of the medical bills that you can share with all parties. The use of simple technology can be helpful with this. Prepare a digital chronology of the subject medical bills and then hyperlink each bill to its corresponding treatments and medical records.
- Know the plaintiff’s medical bills like the back of your hand. Your opposing counsel does; you should, too. Be ready to use that knowledge to explain whether the claimed bills for treatment are reasonable and related to the injury.
I have mediated a lot of personal injury cases and from my perspective, the attorneys whom were well-versed in both the law and the medical particulars of the case—from the ins and outs of the injuries to the specifics of the bills—were the attorneys who entered mediation day with an advantage. So when it comes to the difficult task of supporting or refuting medical records, being able to speak clearly and straightforwardly about accidents and injuries—and backing that up with compelling forms of evidence such as videos and timelines—is the best way set up your case for the resolution you want.