Doctors, nurses, physicians’ assistants and other medical providers are not always good listeners. I know this from personal experience, but also because they frequently misquote my clients in their medical records.
For example, I once had a client who tripped on a broken-up walkway on the way into a store and suffered a serious knee injury. But the emergency room record said that the patient had “slipped and fell” and injured his knee.
“Slipped”, “tripped”, what’s the difference, right? For the doctor, none. For me, the difference was crucial. The doctor made this mistake because it didn’t matter to him how the plaintiff came to fall; for the purposes of diagnosing and treating the patient, his or her only concern was that he fell, and what part of his body he landed on. So he was only half listening when the patient told him how he ended up falling. He was more interested in learning what part of the knee hit the concrete, where it hurt, and whether the patient had mobility there.
So why did the distinction matter to me? Because later when I would call the insurance adjuster to try to settle the case, the adjuster was likely to say, “your client has no credibility. He now says he tripped and fell, but he told the doctor at the ER that he SLIPPED and fell.” The implication is that I, his attorney, went out to the scene and decided it would be a better case if he tripped on the broken-up concrete. But nothing could be further from the truth.
If a case like this goes to trial, I can often keep my client’s alleged statement to the doctor out of evidence. In fact, New York law says a patient’s alleged statements in medical records are admissible (as part of a “business record”) only where they are “germane to the diagnosis or treatment of plaintiff”. Otherwise, they are inadmissible hearsay.
In other words, if the patient’s statement is helpful in determining a diagnosis or a course of treatment for the patient, the statement gets into evidence, but if is not, I can keep it out.
In the above example, whether the client SLIPPED or TRIPPED is not germane to the diagnosis or treatment. The fact that he FELL is germane, but how exactly he came to fall is not germane, which is precisely why the doctor got it wrong in the medical record – it did not matter to the doctor how my client came to fall. What mattered was that he DID fall, and that he landed on that knee that now needs a diagnosis and treatment.
But try explaining all that to an insurance adjuster! Believe me, she won’t understand it, and then I have to put the case in suit and try it. The adjuster will then learn, at trial, that I was right. Meanwhile, my client has had to go through a trial that should never have happened.
By the way, you’d be surprised how many New York personal injury lawyers don’t know that statements by their clients in medical records that are not germane to their treatment or diagnosis are inadmissible as evidence. Be sure to hire one that does!
P.S. I’m available.
Email me at: firstname.lastname@example.org I’d love to hear from you!
Michael G. Bersani, Esq.
michaels-smolak.com Central NY and Syracuse Personal Injury Lawyers
Michaels & Smolak, P.C.