Records are the building materials to any personal injury case. Lucky for you, it’s not your responsibility to gather all of those records. Your personal injury lawyer will get all, or the vast majority of those records own your behalf.
A witness can say one thing at discovery, or up on the stand at trial. What they say can be relevant. But, it’s often self serving evidence. Rarely will you see a Defendant admit that s/he was in the wrong and that the Plaintiff ought to be entitled to all of the damages which they are seeking. The same logic applies to a Plaintiff. They won’t get up on the stand and suggest that the accident was their fault, and that they aren’t in pain; or aren’t deserving of a damages award. People with vested interests in the case are going to tender evidence which best serves their cause.
This is what makes the records so important.
Records: whether they are hospital records, doctor records, tax returns, employment files, police reports have no vested interest in who wins, or who losses the case. The records are objective.
That’s not to say that the records can’t be wrong. That’s also not to say that the author of those records may have made an error in preparing those records. Or, perhaps the author of those records was lazy and was doing the very least in order to complete the task as they are required by their governing body. It could also be that the author of those records carried bias (or was mean) and that bias and those negative feelings carried over into the records which they authored.
Regardless of what’s contained in those records, I can assure you that the personal injury lawyers and the Courts want to see those records. They are very important to your case, even if you don’t think that they are!
When a Plaintiff commences a personal injury case, they are alleging that they were injured in some sort of accident.
In order to prove their injuries to the Court, the Plaintiff must show what those injuries are, and how those injuries have impacted their lives (work, functionality, enjoyment of life).
The Plaintiff must establish what their pre-accident baseline health was. Once we understand what their health was before the subject accident, everyone will have a better understanding of how the accident has impacted the Plaintiff’s health, and their activities of daily living.
If a Plaintiff hides their pre-accident medical history, we have no way of knowing what their baseline health was. So, we will have a hard time understanding how their health or lives have changed as a result of the subject accident. For reasons set out above, it’s not enough for a Plaintiff to say that they are injured and now their lives are completely different on account of those injuries. In every personal injury case, this is what a Plaintiff will say if they want to get compensation. What insurers need, what your personal injury lawyer needs, and what Courts need are records which will establish the Plaintiff’s baseline pre-accident health. And then compare those pre-accident records to the post accident records.
In an ideal Plaintiff case, the pre-accident records will be very sparse because the Plaintiff is healthy. Because the Plaintiff is so healthy, they rarely went to see their doctor, or needed any sort of medical treatment. Their pre-accident OHIP Summary won’t have many entries, or any entries at all. But, after the subject accident, there are now many doctor and hospital visits. The OHIP Summary shows a clear spike in the amount of pre-accident medical attendances compared to the post accident medical attendances. The prescription summary from the pharmacy shows that no prescriptions were filled in the years before the accident, vs. many prescriptions which needed to be filled after the accident. This paints a very clear picture to any non-legal expert that the subject accident has caused a significant change in health to the Plaintiff’s life.
In a not so ideal Plaintiff case, the pre-accident records shows many visits to the family doctor on account of generalized pain. Keep in mind that this pain existed before the accident. The Plaintiff was taking pain medication as well before the subject accident. The post accident records show much of the same. Perhaps the most telling is that the dosage and the medication remained unchanged from pre-accident to post-accident. This makes for a very difficult Plaintiff to establish his/her damages and losses. The Plaintiff’s baseline health was low to begin with, and remains unchanged after the accident. This is not to say that the Plaintiff doesn’t have a case, or many arguments to make in support of his/her claim. You will often hear a personal injury lawyer rely on the maxim that the Plaintiff was a “thin skulled” or a “crumbling skulled” Plaintiff. What this means is that the Plaintiff wasn’t in good shape to begin with. But as a result of the subject accident, the “thin skulled” or “crumbling skulled” Plaintiff has been set back significantly. The accident was the proverbial straw which broke the camel’s back and now the Plaintiff can’t function at the same level which s/he was accustomed to as before the accident.
A lawyer for the insurance company will try to use the records against a Plaintiff. They will try to find contradictions between those records and what the Plaintiff says at hie/her examination for discovery, or at trial. We have never found this to be a fair exercise, particularly in cases where a Plaintiff has seen dozens of doctors/specialists, and there are thousands of pages of records which date back many years. Keep in mind that the Plaintiff did not author these records. Sometimes the doctor gets it wrong, confuses one patient for another, or simply misheard of misunderstood what the Plaintiff was trying to say. The expectation for a Plaintiff to remember what s/he said to his/her doctor 5+ years ago at some trivial appointment is an unrealistic expectation of anyone; let alone a seriously injured accident victim.
At the end of the day, the Plaintiff has the burden to proof to establish his/her case. Without the records to establish their damages, the evidence to prove their case is lacking. As my daughter is telling me at the time of preparing this edition of the Toronto Injury Lawyer Blog Post, “a Plaintiff (named Robert because she likes that name) needs to have the courage to show the Judge that they are in fact injured as a direct consequence of the accident and show how their lives were before the accident vs. after the accident“. That’s an E.G original quote!