Genesee County auto accident victim loses case because her doctors’ opinions were ‘flatly contradicted’ by her ‘long history’ of pre-existing medical conditions; here’s what to do when you see your doctor for care of your car accident injuries and you’ve had prior medical problems
“The worst thing you can do is lie about a pre-existing injury or medical condition.”
I wish more Michigan auto accident attorneys advised their clients like this. Pre-existing medical conditions will not kill a person’s auto case. Lying about not having these pre-existing medical conditions will.
For example, I just wrote about a nearly $2 million settlement that our Michigan Auto Law trial attorneys Jeffrey Feldman and Leonard Koltonow secured on behalf of a man with very serious preexisting spinal injuries to his neck and back. Although defense attorneys will often make the argument that because a car accident victim has preexisting injuries or medical conditions that they aren’t entitled to a full and fair measure of pain and suffering damages, a good auto accident lawyer can overcome this frivolous defense argument and still get the best settlement result possible for their clients.
But that can’t happen if a client lies about having them.
And that certainly will not happen after a new and dangerous case that dismissed an auto accident victim’s case as a matter of law because her past medical condition was deliberately kept from her treating doctors.
The key is for your lawyers and doctors to acknowledge, distinguish, and differentiate your level of functioning and activities from before a crash to after a crash. Your lawyer and treating doctors can’t do this if they don’t know about your preexisting conditions and past injuries.
Here’s an important lesson that Michigan car accident victims don’t want to have to learn the hard way:
Never, ever deliberately keep this from your treating physicians and doctor. They need to be fully informed about your pre-existing medical conditions, symptoms and treatment. These days, with insurance company databases and social security numbers, the odds are certain it will be found. But the consequences for this being found after being deliberately hidden by an accident victim will be devastating.
Not disclosing this information sets up your doctors to render medical opinions (about your diagnosis, disability, prognosis and causation) based on incomplete and inaccurate information. Plus, it deprives your doctor of explaining how your automobile accident injuries may have clearly exacerbated your pre-existing medical conditions.
As I teach lawyers in legal seminars, don’t try to hide this in your case. Use evidence of pre-existing medical conditions and past injuries to show why your client was more susceptible to serious injury because of the pre-existing medical condition (or as lawyers are taught in law school – the fragile eggshell plaintiff) and why the consequences of this new injury will be far worse for your client exactly because of her pre-existing medical condition.
Don’t hide the pre-existing injury or condition.
Use it.
Here’s what to do when you see your doctor for care after a car accident
That said, it’s crucial for all Michigan motor vehicle accident victims to remember that, when you see a doctor for diagnosis, treatment and care for your injuries, you must be certain to do the following:
- Tell your physician about your pre-existing medical conditions and symptoms, including how recently before your accident you were experiencing pain and/or other symptoms.
- Disclose your pre-accident treatment plan, including the most recent time before your accident that you sought medical care or treatment for your pre-existing condition and/or symptoms.
- Disclose whether you have continued after the accident to receive treatment for your pre-existing conditions.
- Provide your doctor with all of your medical records pertaining to your pre-accident, pre-existing medical conditions and symptoms.
Fail to do any of these things and you might end up like Ms. Rudder, the victim of a rear-end car accident that occurred in Burton, Michigan, which is right next to Flint.
How Tracey Rudder lost her car accident case because of preexisting conditions she kept to herself
In Rudder v. Easter, where the at-fault driver contested “causation” (i.e., “whether plaintiff was injured by the accident, or whether her preexisting condition was exacerbated by the accident …”), the Michigan Court of Appeals ruled the victim’s case was properly dismissed by the trial court:
- “[P]laintiff has not established a link between the accident and her post-accident condition, either as an injury caused by the accident or a preexisting condition that was exacerbated by the accident. The only medical providers who opined that plaintiff’s condition was caused or exacerbated by the accident … specifically stated that their opinion that plaintiff’s condition was not strictly degenerative was informed by their understanding that plaintiff was ‘completely asymptomatic’ … or that her back symptoms had returned to their ‘previous baseline’ and her cervical spine was ‘not an issue’ … before the accident.”
- “Those beliefs are flatly contradicted by the medical records submitted to the trial court, which records reveal a long history of both back and neck pain; in fact, plaintiff reported significant back and neck pain to [her doctor] a mere five days before the accident.”
- “Additionally, plaintiff’s back and neck treatment by [her doctor] pre-dated and then essentially continued as normal directly after the accident.”
This decision is very important for automobile accident victims and for lawyers who specialize in auto accident law in Michigan because it highlights a very dangerous potential pitfall in the courts dismissing these cases as a matter of law. It will be used by insurance company defense lawyers in the ever contentious debate over whether a motor vehicle accident victim is fully entitled to pain and suffering compensation for the aggravation of a pre-existing injury or medical condition – especially when there are arguments that the condition was kept hidden from doctors.
If an accident victim’s treating physician is going to be asked to render an opinion about the exacerbation of a pre-existing medical condition, then he or she must be fully informed by the patient bout of the condition’s pre-accident status. Auto accident attorneys must meet with these doctors before they take their depositions to review these medical records so the doctor is familiar with them. Sometimes this is easier said than done, as more and more so-called treating doctors refuse to meet with lawyers, but it is an important part of trial preparation.
Otherwise, the doctor will be rendering a less-than-fully informed opinion, which will be quickly discredited as was the case in Rudder.
How the doctors can get sandbagged into giving easily-debunked medical opinions
The Rudder case is a classic example of how an auto accident victim’s failure to fully disclose all of the details about his or her pre-existing conditions can hurt his or her case by setting up his or her treating doctors to render opinions based on incomplete and inaccurate information.
As I tell my own clients, I can handle nearly anything – as long as I know about it.
In Rudder, the victim’s doctors opined that her neck and back injuries were exacerbated by the accident based on their understanding that, prior to the accident:
- The victim’s “‘neck and back pain’” were “‘not preexisting’” because the victim had been “‘completely asymptomatic prior to the motor vehicle accident …’”;
- The victim “really did not seek consistent treatment for any cervical spine pain prior to this auto accident.”
- Her “cervical spine was not an issue until the accident …’”
- Her “preexisting back symptoms had returned to their ‘previous baseline’ before the accident …”
However, what the doctors didn’t know – when they were formulating their opinions about the accident’s seeming exacerbation of the victim’s neck and back conditions – was a lot:
- “Three months before the [November 8, 2011] accident, plaintiff had been referred to a specialist … by her primary care physician … for help with the management of severe neck and lower back pain.”
- “As of August 9, 2011, plaintiff reported to [the specialist] that she had been ‘experiencing persistent severe lower back pain and cervical neck pain since an accident at home’ in June 2011, and that her pain level on that date was a 10/10 on a 0-10 pain scale. [The specialist] assessed plaintiff as having lumbar degenerative disk disease, lumbar spondylosis, cervical degenerative disk disease, and cervical spondylosis, among other things. [The specialist] treated plaintiff with epidural steroid injections in her lumbar and cervical regions in August 2011.”
- “On November 3, 2011, five days before the accident, plaintiff again saw [the specialist] and reported ‘severe persistent cervical neck pain that radiates to shoulders associated with numbness’ and ‘persistent severe low back pain.’ [The specialist] ordered a CT scan of plaintiff’s cervical spine, and prescribed additional injections and physical therapy.”
- “On November 11, 2011, three days after the accident, plaintiff underwent the CT scan of her cervical spine that [the specialist] had ordered. This scan revealed no acute fractures or dislocations and found only ‘mild degenerative changes’ in parts of plaintiff’s spine. Plaintiff saw [the specialist] twice in November and twice in December 2011 for injections; the records reveal no mention of the accident that had occurred on November 8, 2011.”
