Second inning: medical management and gathering early evidence

Following any accident or injury, each client needs to navigate medical and legal roads. The paths might periodically overlap, which is why the lawyer must act as a guide who helps protect the client and ensure they receive proper medical care.

Though trial lawyers may have developed keen abilities in recognizing injuries and explaining them to juries, most are not former medical professionals. Instead of telling clients what to do, they should advise on the challenges of medical management while also taking the lead on gathering evidence.

By advising on these tasks through a cost-conscious lens, the lawyer can strengthen the foundation of the client's catastrophic injury case.

Medical Management

Injury victims should always seek the best and most thorough medical attention. Many do not realize that doing so will increase their chances for a favorable legal result.

A car collision, for example, can cause a traumatic brain injury (TBI) or other neurological symptoms that are not as immediately apparent as a broken bone. These injuries can be subtle at first, but if not identified early, can cause greater physical harm later on and also hinder a civil lawsuit.

Through time and experience, our firm has represented clients who are not always aware of their actual injuries - or are simply not describing them accurately. Lawyers should not make any diagnosis or conclusions, but should instead help clients understand the need for proper medical management and how it will influence arguments in the courtroom.

Fast action in medical management helps establish a chronology and history of pain and suffering. This is useful for the client when filing insurance claims, as well as the lawyer, who can better convey the extent of the injury to the jury.

Lawyers should explain how the treatment of the injury will be presented by the opposing counsel and how it may be interpreted by a jury. For example, TBI often requires weeks of treatment and rehabilitation at a minimum, and may require many medical specialists to provide accurate assessments. A victim who is not attending their medical appointments may not be viewed as favorably by a jury unless there is a good explanation.

Medical Expenses: Strategies and Options

As an adviser (and not someone telling the client what to do), lawyers should be mindful of medical debt and work with the plaintiff. Though treatment and evaluation is largely governed by insurance, that plan itself will not always be the solution for physical healing.

Insurance is preferred to pay for medical care so debts do not grow beyond co-payments, but some health maintenance organizations (HMO) systems and the need for primary care physicians to authorize care and diagnostic studies can be alarmingly slow and limiting. Many people want immediate effective care during the acute phase of injury, and giving them lien care choices can be empowering and bring relief from pain and injury.

Take time to explain options, such as care paid for by "med pay" through the defendant's insurance, or lien care to get quick and effective pain management and diagnostic medical care. This will ultimately help the victim return to their pre-injury performance quicker.

Even an insured person may not always be able to afford the services of skilled doctors like neurologists after having sustained a TBI. However, there are financial and creative approaches towards medical management that a lawyer can coordinate. For example, a third-party entity may provide non-recourse funding to cover a plaintiff's medical expenses for certain expert care and evaluation during the lawsuit. The entity assumes all the risk, and if the case is not favorably resolved, the plaintiff typically does not have to compensate the lender. The non-recourse funding arrangement is usually brokered through the lawyer, who has a relationship with the company.

Gathering Evidence

Critical information starts to fade within moments of an accident. Accurate eyewitness recollections and details from the scene need to be assembled as quickly as possible to preserve evidence. These scenarios present an opportunity for lawyers to wear their investigator hats to help track down the evidence needed to prove the severity of an injury.

For example, a car collision at a busy intersection near a school will likely have both witnesses and data to support a claim. A lawyer can make progress - themselves or through collaboration with local professionals - to access nearby streetlight or security camera footage. Even the body camera footage recorded by the police officers arriving on the scene may help uncover evidence, which could include initial statements or unique viewpoints of the crash site. Further, elements like skid marks and the debris field help reconstruct the scene for the lawyer, and help tell the story about speeds and angles that will help establish fault - a weighty matter when presented to a jury.

The accident site is not the only place from which lawyers cull evidence. A data scientist or specialist may be needed - one who knows how to download or extract the vehicles' information. Lawyers should have direct lines to these types of experts and professionals. Contact must be made fast, because if the vehicles are repaired or hauled away, the vital information from its computers and event data recorders (better known as "black boxes") may be irretrievable.

Evidence is not solely relegated to the accident (or new injury). Combing through the client's own medical history is a key part of the evidence gathering process, especially because most people have preexisting conditions - whether or not they know or remember it - which the defense will try to exploit during trial. Thankfully, California Civil Jury Instructions (CACI) No. 3297 provides clarity on the topic of Aggravation of Preexisting Condition or Disability and can even protect the client to an extent:

[Plaintiff] is not entitled to damages for any physical or emotional condition that [plaintiff] had before [defendant]'s conduct occurred. However, if [plaintiff] had a physical or emotional condition that was made worse by [defendant]'s wrongful conduct, you must award damages that will reasonably and fairly compensate [plaintiff] for the effect on that condition.

Nearly everyone has been in an accident or suffered an injury and the repercussions can be long-lasting, no matter how minor. Many plaintiffs forget to mention their own health history because details may seem irrelevant or are simply forgotten. Even if someone has not been in a collision, our bodies begin to show signs of wear and tear beginning in our mid-20s, which will be documented during regular medical checkups.

Resources would be well-spent to secure those records to preemptively demonstrate this new or worsened injury.

Advise, Don't Command

The lawyer is meant to be a guide for an injured person filing a claim. The most important detail is for the client to heal. An attorney who is overzealous and recommends unnecessary treatment may overwhelm the client - causing them to look elsewhere for counsel. By explaining the interconnection between medical management and evidence gathering, the lawyer can strengthen the relationship with the client, as well as the injury claim itself without incurring massive medical debts.

This article is a follow-up to last month's "First inning of any new case: understanding the players," Daily Journal, Nov. 22.