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McKenna Minutes

“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.



Every personal injury lawsuit has two areas of investigation: liability and damages.  The majority of a claimant’s damages consist of medical treatment.  Before insurance defense counsel can completely prepare for a claimant’s deposition, he or she must obtain an accurate picture of claimant’s medical history for the alleged injury.

Every claimant must disclose any prior medical treatment and any subsequent medical treatment in answers to interrogatories, but a claimant’s answers to interrogatories are not always accurate.  Answers might be vague or incomplete and, in some instances, the person might even provide an entirely false answer.  I have had claims where a claimant did not disclose a prior accident and a subsequent accident in answers to interrogatories.

One mechanism for fully investigating a claimant’s injury is to subpoena all of the person’s past and current medical records.  Once the defense attorney obtains a valid, enforceable HIPAA order, he or she can subpoena any medical provider the claimant has seen except for mental health treatment.  However, if the claimant makes a mental or emotional injury claim, then those prior mental records are in play.

Don’t overlook the primary care doctor

One provider that must always be subpoenaed is the claimant’s primary care doctor.  Most claimants initially see their primary care doctor for referrals to specialized medical providers.  The records from the primary care doctor are free from any taint of litigation.  Here, the claimant wants to tell their primary doctor everything so they can start obtaining the best medical care possible.  There is no motivation for malingering or embellishment of their complaints.

Obtaining the primary care doctor’s records may lead to other medical providers that the claimant has seen before the occurrence that gave rise to the litigation. Investigating a claimant for prior injuries is necessary for any expert review.  Claimants may have had a degenerative condition before the occurrence that gave rise to the litigation. A reviewing expert will need to know when the claimant initially had the medical condition to opine as to causation, and further treatment.

Costs could outweigh the benefits of subpoenaed records

Subpoenaing medical records is costly.  The subpoenaed records might even be exactly the same as what the claimant disclosed in discovery.  Further, subpoenaing medical records in a small, soft tissue case, may not be needed.  The cost of obtaining the medical records must be weighed by the case at hand.  If a claimant has only $5,000 in medical bills for all chiropractic treatment, then subpoenaing those chiropractic records may not be necessary, as there will probably be no expert review.   The defense attorney should come to an understanding with the claims adjuster regarding medical investigation.  Unnecessary costs of litigation should always be avoided.

There are some cases that demand undertaking the costs of obtaining a complete medical history of the claimant right from the start.  Other cases may not need an in depth medical investigation, as that investigation may cost more than the actual claim is worth.

Contact us today for more information

For more information about investigating a claimant’s medical history and other Insurance defense issues, contact Alexander Sweis at McKenna Storer.

Categories Insurance Litigation Defense

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