It is amazing how many plaintiffs’ lawyers file suit, name experts, and then give a key expert like a treating doctor a call to find out the expert’s opinion on the case. It is equally amazing how often insurance company lawyers wait until after the discovery deadline passes before having a substantive conversation with their experts about the case.
Some attorneys just don’t want to spend the time to be proactive because, hey, the case might settle. Why spend the time on the front end lining up the treating doctor? In some cases, the economics of the case demand this approach. I would not line up experts in a garden variety soft tissue injury case before trial. Because your proactivity (a word I just made up) might not be in the client’s long term interest.
But assuming you have a very serious injury car or truck accident case and you need an expert, get the experts on board early. How do you know you need one? Do you have a problem with speed, with drinking, with highway design, with a “dangerous condition?” Well, you won’t know if you have any of those things if you don’t investigate your claims properly.
But when you discover these issues, here is why you need that expert early. If the issue is speed, you need your accident reconstructionist involved early even if you never intend to call an accident reconstructionist at trial – it is the evidence that is key. Skid marks fade or wash away, and vehicle damage is repaired. Photos are not always enough, if the depth of a dent, the gear a car locked into at impact, or the length of a skid is at issue. Dents get fixed, cars are sold for salvage, and you can’t measure a photograph. The design of the road could be changed, or lights and lane markings can be moved. Once the truck with the improperly secured load is taken away without being photographed, you can’t get that evidence back. After this happens, you can’t undo the damage to your case. But once you lock the important facts in with an early expert investigation, there isn’t anything the other side can do to make that evidence go away.
Many approach liability from an “is what it is” perspective. Liability does not spring doe-like form behind a bush somewhere- it is made. Wait, tort reform advocates waiting to pounce, I am not saying liability is invented. But, sometimes, it must be discovered. Liability is not crystal clear on every car or truck accident. An expert may be necessary to determine how things happened. Good lawyers work for the client in coming up with the best theory possible that works, that gives your client the greatest possible number of viable defendants, that your expert can realistically testify to, and that you can uphold and prove at trial.
The same falls true with treating doctors. Don’t fall into the trap of overlooking the beneficial impact the early involvement of a treating doctor can have on your case for damages, or on your ability to secure the most favorable settlement possible.
Again, assuming the economics of the case dictate such a course, make early contact with crucial medical witnesses, at the latest before attempting to begin settlement negotiations. If the case involves an aggravation of a pre-existing condition or increased susceptibility to injury, it is a very good idea to ask the treating physician exactly what she is prepared to say under oath about the issue. The same is true if the case involves a claim for permanency, future medical treatment, future lost wages or diminished earning capacity.
Lock in what you expect your medical experts to testify to before negotiating. It may be that you can glean some of this information from the doctor’s treatment notes. It is most likely that you can’t get everything you need because doctor’s treatment notes are made for a very different purpose than that which they are used for in the context of settling a potential litigation claim. You need to know if a low offer should be rejected because the medical witness will give testimony that is likely support a claim for higher damages at trial.
On the flip side, you also need to know if you should take that low offer because the client’s doctor is going to say the bulk of his problems are from a prior injury or a degenerative condition or otherwise does not support the patient and the claim. The point is, if you will need an expert to try the case, you probably need to locate and involve the same expert on the front end to properly settle the case or to begin to get the case ready for trial.