The treating doctor’s testimony is key in any personal injury case. Unfortunately, treating doctors oftentimes tell the patient one thing and then say something very different during the deposition. This is particularly true when it comes to attribution.
Treating doctors will tell patients, without qualification, that a specific injury was caused by the motor vehicle accident. The patient relays that information to our office and expects to be compensated for that injury.
The litigation progresses and ultimately the treating physician is deposed. At the deposition defense counsel will invariably ask the physician if he or she can say on a more likely than not basis with reasonable medical probability that the specific injury was caused by the motor vehicle accident. Frequently these doctors, who were so confident and self-assured when speaking with the patient, will hem and haw. Rather than simply answering "yes" they will say "no one can really know for sure" or “it’s possible but not probable” that the specific injury was caused by the motor vehicle accident.
I’m not quite sure why treating physicians retreat from their initial opinions when being deposed. But they do.
Lack of conviction on the part of doctors definitely reduces the damages that can be recovered in a personal injury case. In order for a personal injury plaintiff to recover for a specific injury there has to be a causal link between that injury and the motor vehicle accident. For instance, we recently represented a gentleman who suffered a hernia in a motor vehicle accident. In the examining room his doctor told him the hernia was the result of the forces associated with the accident. Unfortunately, when push came to shove, the doctor retreated from that opinion and said it was a mere possibility that the motor vehicle accident contributed to the hernia. As a result, our client was not able to recover for the hernia or the medical expenses associated with its repair.
Now, the double-edged sword: Even though the physician’s inability to make the causal link tends to erode the value of the case in chief, it can be very valuable when negotiating reimbursement with either personal injury protection or health insurance. The doctor testifying that the specific injury is not most likely related to the accident may hurt the case – but it is invaluable after the case settles and we’re negotiating with the client’s PIP or health insurance company.
The treating physician’s failure to confidently and convincingly attribute injuries to an accident is unfortunate. But there is certainly a silver lining. That silver lining should be extracted and utilized to the conclusion of the case to ensure the client nets as much money as possible.