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Don’t let ICBC get away with manipulating clinical records

I am going to tell you a story.  It is a remarkably accurate story for many, many crash victims.

After I tell you the story, I will tell you about how medical records, compiled innocently by the medical system while the story unfolds, are used unfairly by insurance lawyers.

When an injury is fresh, you are in to see your doctor every week.  You are relying on your doctor to fix you.  You cite chapter and verse about the more serious pain you are having.  You hardly notice some of the minor symptoms, though, and don’t mention them.  You are given pain medications to help make it through the day, and referred to some sort of therapy.

Sharing the doctor’s optimism that you will get better, you attend therapy sessions several times per week.  It eventually becomes apparent that the therapy is not going to fix you.  Other treatment options are tried without success.

Initially, there is some improvement in your condition.  These improvements are noted by the therapist.  So long as you are continuing to have the therapy, your improved condition is maintained.

After a time, living in pain becomes your new reality.

If asked how you were feeling when the injury was fresh, you would have said you were feeling horrible.  After a short period of time, though, being honest about your pain starts to look like complaining. You are not a complainer.

You are no longer attending any kind of therapy, because it has all been tried and has failed.  Once the therapy stops, some of the pain reduction achieved through therapy is lost.  Nobody is there, however, to record that set back in your symptoms.

There’s a sign in the doctor’s office asking you to deal with only one medical problem per visit.

You follow the rules and don’t bring up the unrelenting headaches that haven’t changed for the last several months, because your purpose in seeing your doctor is to investigate the numbness in your hand.

Even though mild numbness came on immediately after the crash, it had been the least of your concerns in comparison with the pain symptoms, and you fully expected it to go away.  Instead, it is now getting worse, so you are bringing it up for the first time several months after the crash.

You follow the rules and don’t discuss your crash injuries when you go in with the flu or for other unrelated matters.

You hire a lawyer to ensure you will receive fair compensation for your ongoing pain and other losses arising from the crash.  You are eventually forced into going to trial, because the defence insurer refuses to make a fair settlement offer.

You are on the witness stand and the insurance lawyer is holding a thick folder of papers: the clinical notes and records of your doctor and therapists.

What kind of story will the jury hear as he goes through the clinical records with you in cross-examination?

The insurance lawyer will do his or her best to put a “spin” on the records so that they paint the following picture for the jury:

1.  You may have had pain initially, but your pain improved enough through treatment that further treatment was not required.  Certainly, you would have continued having treatment if you were continuing to have symptoms.

2.  None of your ongoing symptoms were constant, because they didn’t show up in your doctor’s clinical notes every time you went into the clinic.  Certainly, you would have brought up any ongoing symptoms whenever you saw your doctor.

3.  The eventual disappearance of pain notations in the records means that your pain symptoms completely resolved.  Anyone with ongoing pain would at least mention it to their doctor.

4.  Even if you continued to have some degree of pain symptoms, they couldn’t have been as serious as the mild numbness in your hand or the flu symptoms that you chose to mention.

5.  The numbness in your hand, which could progress to a very serious neurological disorder, is not related to the crash because the records indicate that the numbness did not start until several months after the crash.  Certainly, you would have mentioned this symptom earlier if it had occurred earlier.

There you sit, in the witness stand, with a pounding headache, wondering what the heck is happening.  The story being painted by the insurance lawyer, based on the clinical notations, makes so much logical sense.  Documents don’t lie.  How is the jury possibly going to see through the bunk?

Avoid this strong potential for injustice by keeping your doctor regularly informed about all of your ongoing crash symptoms, even the minor ones.  Even if you know that nothing can be done.  Your doctor will appreciate being kept in the loop because it will make it so much easier to prepare the comprehensive medical report that will eventually be requested.

If the die is already cast, and the insurance lawyer is salivating over the misleading picture painted by the clinical records, have faith that justice can still be achieved.  Juries are made up of reasonable folks.  They can see through a lot of bunk.

Published September 16, 2007 in the Kelowna Capital News

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