Here in Maryland, we have a procedure that allows a Plaintiff’s medical records and bills to be admitted into evidence without the testimony of a medical provider. This requires service of a list of the records to be offered at least sixty days before trial. This procedure is available in any case filed in the District Court of Maryland, or any case in a Maryland Circuit Court that is filed within the jurisdictional limit of the District Court, presently $30,000.00.
The defense also has the ability to admit a medical report using the same procedure. Often, insurance company lawyers will hire a doctor to review the medical records of the Plaintiff and other documents and then create a “peer review” report. Usually, this report says something like the plaintiff treated for an unreasonable period of time, the plaintiff’s injuries are less severe than claimed, or the medical bills are unnecessary, unreasonable, or not related to the accident.
In cases in the District Court, these reports are easy to address because judges are used to seeing them and are usually familiar with how they are created. It gets trickier when the case is to be tried before a jury (usually when the defense requests a jury trial). Here are some tips for attacking these kinds of reports in jury trials.
I ignore these reports in opening. I never mention these reports in opening statements. What if the defense attorney doesn’t put it into evidence? I wasted my time. Plus, the jury will never see this report until they go into the jury room to deliberate, so there isn’t any real reason to address it at the beginning of the trial.
The best time to address such a report is in rebuttal argument to the jury. This is when I have already made my primary closing argument, and the defense attorney has given his closing using the report to attack my damages case. I then have an opportunity to give a rebuttal argument. What’s great about this is that you can really go after the report, and the defense doesn’t get another opportunity to contradict anything I say.
The first thing I do is read the jury the address where the report was sent. This is always the defense attorney’s law firm, and often it is directed to the attorney personally. Then I read the first sentence which says something like “thank you for the chance to review the medical records on [Plaintiff].” Then I point out that the next sentence says the doctor reviewed the medical records that the defense attorney sent him. I tell the jury this means that the defense attorney picked out a doctor, who then reviewed the records that the defense attorney selected and sent to the doctor.
Sometimes these records include photos of the damage to the vehicles. When this happens, I tell the jury I hurt my back a few years ago moving a bed, went to the doctor, and wouldn’t you know, my doctor never asked to see a picture of the bed I was moving even though he was sure that was how I got hurt.
Also make sure that the defense doctor is accurate in his review of the records. In my last trial, the defense doctor said the client had two MRI scans that were normal, and went on to say that the MRI’s were unnecessary. The problem was, those MRI’s both showed bulging discs at multiple levels. I also point out that the doctor doing the records review never examined or treated the plaintiff, and that the defense is asking the jury to accept his opinion instead of that of the treating doctors. In that last trial, the last thing I did was read the jury the last two sentences of the report, which state: “I appreciate the opportunity to evaluate these files. If I can be of additional assistance, do not hesitate to contact me.” Then I told the jury this means “thank you for hiring me to do this work for you, and please call me if you would like me to do some more work for you.” I told the jury that people don’t get a lot of repeat business if they are not providing the customer with what they want.
The key is that in a case like this you can expose the report for what it is- biased and not credible, and the defense never gets a chance to counter your argument.