Fourth in a Series

Editors’ note: Some things don’t change. The advice about how to work with a patient’s attorney in a workers’ compensation or personal injury case is still relevant after almost 40 years.

1968 — In previous articles we have discussed the doctor’s responsibility to his patients (from a medico-legal point of view), the doctor’s responsibility to the insurance company and the overall aspects of the D.C.’s role in the management of P.I. cases and workmen’s compensation cases. In this article, I want to point out what the doctor’s responsibilities are to his patient’s attorney.

Incidentally, I would like to direct the reader’s attention to attorney Ben Berstein’s article in the July-August 1968 issue of this publication. The article and title, “Chiropractic and the Legal Profession” appears on page 34 of the last issue of the Digest. Mr. Bernstein has been most instrumental in establishing a better rapport between the chiropractic and legal profession.

As stated in my first article, the doctor must always maintain a position of knowing and presenting the actual facts pertaining to his patient’s injuries and the possible resultant disabilities. At no time must the doctor allow himself to become an advocate in his position as a vital component in the medical legal aspects of treating an injured patient.

Please consider that an attorney representing a patient, whether in a personal injury or workmen’s compensation action, will do everything in his power to obtain the most favorable settlement or verdict for his client. First of all, in order to be a successful attorney, he must produce results and secondly, his own income is in direct relationship to the amount of money he has obtained for his client.

Likewise, the attorney representing the insurance company must do his very best to show his client, namely the insurance company, that he is doing everything within his power to protect their interests.

We therefore, find the treating or examining doctor directly in the middle, between his patient’s attorney and the attorney for the insurance company defending the action. We must face reality and realize that the attorney on the one hand and the insurance company on the other hand are diametrically opposed in their views and their attitudes toward the injured person.

We had pointed out what the doctor’s responsibilities to this insurance company are and we must now carefully consider the doctor’s responsibility to the attorney representing his patient.

First of all, the attorney should know that you, Doctor, are treating his client. In case your patient has not advised the attorney of this, it is your responsibility to contact the attorney and inform him of this fact. This is especially important in cases where a Doctor of Chiropractic is treating an injured person. Many times, attorneys are not knowledgeable in the field of chiropractic and may be inclined to suggest to their clients to seek a medical orthopedist or another doctor in the medical profession. It is your duty, Doctor, to arrange to educate the specific attorney and apprise him of the D.C.’s role in the management of personal injury cases and the ability of the Doctor of Chiropractic to not only help the injured person get better but also to inform the attorney that you, as a D.C., are knowledgeable in the medical legal aspects of cases of this nature.

The attorney will ask you for a narrative report at some time while you are treating your patient or even after you have terminated treatment. The importance of this narrative report must be fully understood by you, Doctor. At present, there are a number of booklets available to help D.C.’s in the preparation of narrative reports and also pointing out the vital and necessary information which must be obtained in these reports.

Essentially, the information to be contained in these reports and comments upon same are covered in our second article, which appeared in the May-June 1968 issue of the Digest.

Of special significance to the attorney is the following:

1. The length of total temporary disability. This must specifically spell out how long the injured patient was not able to follow usual line of occupation.

2. The length of total partial disability. This must indicate for how long the patient was only able to perform part of his regular activities.

3. The need for further care and the possibility, if this be the case, of further aggravations or the possibility of further problems as a result of the injury.

The above 4 points are of tremendous importance to the attorney in evaluating the case from a monetary point of view. With this instrument he will attempt to negotiate for a settlement with the insurance company or decide to take the case to court in the event the offer made by the insurance company seems insufficient to him.

All too often, we read reports by doctors, giving an excellent history, an excellent report of findings of physical examination and interpretation of x-rays but the reports do not properly cover the above mentioned points.

As stated earlier and also in previous articles, it is of the utmost importance that the doctor can support his opinions and findings in every respect. Please bear in mind, that it is quite likely that a case of this nature may come to trial and you the doctor may be put in a position to have to prove your contentions.

Naturally, an attorney expects to be charged for your report. We are not going to attempt to advise you what your charges for a report should be. Suffice it to say, that these charges may vary from $10 to $75 depending on geographic locations, length of report, time spent in preparing the report, complication of case, etc. We suggest that each doctor find out what the average fee for a proper report is in their particular locality. This information can be obtained from attorney friends and acquaintances who handle personal injury cases.

The fee for this report can of course, not be charged to the patient’s insurance, covering medical payment for services rendered as a result of an injury. This constitutes a medical legal cost and must be billed separately and is the responsibility of the party requesting the report.

Also, Doctor, never send out any information about your patient unless you have obtained written authorization from your patient to do so.

If the case is not settled and it if therefore has to be tried, it is your responsibility, Doctor, to re-examine the patient shortly before trial in order to be in a position to know the patient’s status when you testify at the trial. Never plan to testify in court without having a proper conference with the patient’s attorney prior to the trial. This is essential, because you must help the attorney in preparing him how to qualify you as an expert witness. Incidentally, Attorney Ben Bernstein has an excellent book on this subject, entitled, “How to Qualify the Chiropractor as an Expert Witness.”

Furthermore, it is necessary for you to know what information the attorney will require of you and it is also necessary for the attorney to know what your final opinions are in regard to the present state of your patient. Don’t ever allow an attorney to attempt to tell you what you should say in court. Only a very inexperienced P.I. attorney would ever try to do such a thing, but if it ever happens, put a stop to it before it even begins. This can only be disastrous and detrimental to all parties concerned.

Many of you have attended one of our Personal Injury Seminars, where we cover, in detail, the management of a personal injury case from the time the patient first sees the doctor until the case is settled or until the doctor steps off the witness stand. As you know, we go through a mock trial in this seminar and cover all phases of court appearance. It would be impossible to write all of this material in these articles, as this would require a book, rather than a series of articles.

Quite a few doctors have written to us and asked for specific information pertaining to some phase of their personal injury practice.

We recently discussed the possibility of a question and answer column with the publisher of the Digest. They will be very happy to have a column of this type if there is enough reader interest.

If you, the reader, feel that it would be of benefit to have a question and answer column in each issue, please contact the writer and advise us of your questions.

We also will be happy to arrange for an all day personal injury seminar to be held in your geographic area, if sponsored by either a local or state chiropractic association.

It was our pleasure and privilege to share with you some vital information pertaining to the management of personal injury and workman’s compensation cases.

— Robert F. Fischel, D.C.