Obtaining better outcomes in medical litigation – Lesson 4

Exposing misconceptions, client interview checklist

Excerpted from Medical Evidence by James H. Lawlor, III

In my experience, a surprising number of experienced lawyers, judges and insurance representatives are not aware of medical data behind these truths about TBI injuries. Consequently, during the discovery phase of your case, if you represent the plaintiff and your goal is to enlighten your opposition as to the legitimacy and value of your case (or, alternatively, if you are focused on preparing for trial and want to make sure the judge will allow you to elicit such opinions), it is imperative that you get each treating neurologist or defense expert neurologist to concede each of these points during their deposition. For example:

Q:    Do you agree that a trauma victim does not need to lose consciousness in order to sustain a concussion?

Q:    Do you agree that a concussion is a mild form of a TBI?

Q:    Do you agree that a trauma victim does not necessarily need to strike his or her head on another surface or object in order to sustain a TBI?

Q:    For example, brain trauma as can occur in the absence of a blow to the head if a trauma victim is subjected to a flexion-extension injury (or whiplash type injury), true?

Q:    Do you agree that mild traumatic brain injuries do not always result in positive findings on x-rays, CT scans, MRI’s or EEG studies?

Q:    Do you agree that mild TBI victims cannot always accurately recount whether or not they sustained an alteration in their level of consciousness to emergency room personnel?

Interview Client

§23-7   Basic Principles

The initial preparation of a potential mild TBI case starts when the case comes in the door. Your goal is to gather as much information as possible to rule in or out the possibility of a TBI. A case which is initially presented as a “soft tissue” injury to the defense becomes even more difficult to settle when the plaintiff’s attorney expands the scope of claimed injuries to include TBI two years into the litigation. Accordingly, the initial fact-finding in a possible TBI case can be imperative to obtaining a successful result. The following is a list of steps that may be helpful in conducting an effective client interview.

  • Build a rapport and establish a trusting relationship with the client

As with all cases, the most effective way to build a rapport with the client is to put the client at ease before the interview process begins. Start out by talking about things other than the lawsuit or injuries (e.g., sports, kids, or the weather) until you find common ground on a subject. Smile and tell a light story that reveals you to be a self-effacing, down-to-earth person. In TBI cases, establishing trust between client and attorney is important because the client with TBI may be apprehensive in admitting to a relative stranger certain details about his symptoms that may be critical in determining if he is suffering from TBI. In addition, it is important to develop relationships with the plaintiff’s spouse and family members as they can provide psychosocial information, which can lead you to suspect what the plaintiff could be suffering from. See §23-8 Checklist.

  • Pay close attention to subconscious communication

When interviewing a client suspected of suffering from mTBI, carefully observe the client’s mannerisms, behavior, responsiveness, and recollection of the accident and subsequent events. Note if the client has a hard time remembering names, places, dates and details about the occurrence. Note if the client becomes easily agitated. These cues are particularly important in a TBI case because they can strengthen or weaken the premise that TBI has occurred. For example, recently a potential new client came to see me for an interview claiming he hit his head during a crash and could not recall the date, exact location or many facts about what had happened. I suspected a valid TBI claim, particularly due to the fact that the man was uneducated and had no prior knowledge of the criteria or common symptoms of a TBI. I signed up the case and, indeed, the man’s objective records confirmed a serious brain injury requiring further treatment. Bottom line: observe, but do not volunteer the criteria of a potential TBI until after the interview.

§23-8   Checklist

Use the following as a checklist of topics to cover in your initial client interview:

  • Is the P is having short or long term memory problems?

  • Does P recall exactly what happened before, during and after the event or is there some time missing – i.e., is there any period of amnesia?

  • What does P remember immediately before the accident?

  • What does P remember immediately after the accident?

  • Did P lose consciousness at the time of the occurrence or any time since it?

  • Is P experiencing headaches?

  • Did P have what could be construed as an “alteration of consciousness”? This is all that is required in order to sustain a concussion (citation) which is a mild TBI.

  • Did P have any symptoms of nausea or vomiting with 48 hours of the occurrence? Again, a sign of concussion (citation).

  • Does P have problems with concentration?

  • Does P have problems with employment-related duties since the occurrence?

  • Does P have sleep disturbances since the occurrence?

  • Did any passenger, family member or post-occurrence witness tell P that he was unconscious or foggy at any time following the occurrence?

  • Did P experience any problems with speech following the occurrence?

  • Does P or any family member recall (did anyone write down) what any treating doctor told them about injuries.

  • Has P ever had prior similar symptoms?

  • Was P ever involved in any prior event in which he sustained an alteration in consciousness or diagnosis of TBI?

The following issues should be thoroughly explored as they are frequently the subject of fierce attack by seasoned defense counsel:

  • Pre-morbid emotional conditions;

  • Pre-morbid psychological problems;

  • Pre-morbid educational problems;

  • Pre-morbid events in which the plaintiff sustained a loss of consciousness and or diagnosis of TBI;

  • Mental illness among parents or siblings;

  • Any history of alcohol or drug abuse; and

  • Any documented learning disabilities.

§23-10 Interview Lay Witnesses, Including Family, Friends and Coworkers

After obtaining the information from the initial client interview and from pertinent records, the next step in preparing a TBI case is to interview some of the people who were familiar with the plaintiff before and after the accident. In TBI cases, lay witnesses can provide extremely insightful information regarding the plaintiff’s life before and after the accident. Family members, friends, employers, and fellow employees can help identify the “before” and “after” picture of the plaintiff. These witnesses can establish or corroborate the plaintiff’s memory loss, forgetfulness, inability to do multiple tasks, confusion, personality change, volatile temper or any other changes that have occurred to the plaintiff since the accident. They can make the “invisible” injury visible by painting a picture of the plaintiff the jurors will relate to. During the interview, focus on the following lines of questions:

  • Have you noticed any changes in P’s memory?

  • Have you noticed any changes in P’s personality?

  • Have you noticed any changes in P’s mood?

  • Have you noticed any changes in P’s ability to multitask?

  • Have you noticed any strange or unusual behavior in P?

  • Did P experience any problems with speech following the occurrence?

§23-11 Screen Plaintiff’s Treating Doctor

Because TBI cases start out being difficult to prove, it is important to determine if the plaintiff’s treating doctor has the knowledge, expertise and the willingness to support your client’s TBI claim under oath. There are various ways to get such information. Call his office and set up a brief meeting about your client’s injuries and the M.D.’s perceptions on TBI cases. Ask your colleagues about him, research his background on the internet, and do a jury verdict data search for cases the witness testified in.

Practice Point:

Give client list of doctors for second opinion

If you are concerned about your client’s current physician, suggest your client consider a second opinion and provide him with a list of names of you know to be highly respected TBI doctors and let your client choose from the list. Warn your client that he should not volunteer to the doctor or the doctor’s staff that he was “referred by” an attorney because an intake nurse or employee will put the note in the records. That notation in the records can come back to bite you like a shark if, at trial, the defense lawyer suggests that the jury discount the Doctor’s testimony because you have a business or social relationship with him and are steering clients like the plaintiff to him. Have the client research the physician’s name and background on the internet and, if asked by the doctor who referred him, a response of “I researched your name on the internet” will suffice. Beware, there are some insurance plans that may not cover such visits. However, it is better to pay out of pocket for a quality physician than to be stuck with someone who will undermine your client’s care and his or her case.

Consult With Experts

§23-12 Arrange for Neuropsychological Testing

The plaintiff’s evaluation should include, in part, a formal neuropsychological evaluation conducted by a competent clinical psychologist who is aware of the relationship between the neurological, psychological and litigation factors associated with TBI symptoms. Usually, these professionals are different from the treating physician. Indeed, psychologists, unlike neurologists or even psychiatrists, do not typically prescribe medicine. The clinician should perform a detailed mental status examination consisting of the following:

  • Tests of memory and attention: These tests, such as The Wechsler Memory Scale – III, also referred to as the WMS-III, indicate the ability to retain and recall series of numbers, objects names and events.

  • Tests indicating changes in personality: These tests, such as the Halstead-Reitan Neuropsychological Battery, measure impaired judgment, inability to plan and sequence complex behaviors, to pay attention to several stimuli simultaneously, to resist distractions, to understand abstractions.

  • Tests determining moods: These tests, such as the Minnesota Multiphasic Personality Inventory (the “MMPI-2”), measure information provided by the patient to determine if he is suffering from depression, heightened anxiety, phobias, or the inability to feel pleasure.

  • Tests to rule out malingering: These tests, such as the Word Memory Test, are simple tests that measure the degree of effort set forth by the patient during the test. They can be used as a basis for the testing psychologist to opine his findings were objective.

After the plaintiff has been evaluated, review all of the test results with your expert. Conclusions should be made as to the pre-injury and post-injury information and what the differences are. It is important to qualify how the expert determined the plaintiff’s pre-accident level of function because this will inevitably be challenged by the defense. Your case will be much stronger if your expert can support his opinions with premorbid school and/or employment records. Conversely, your case will be significantly weakened if the test results suggest that your client attempted to exaggerate his injuries (malingering).

If your client scores poorly on malingering tests, ask your expert if there is any rational alternative explanation for your client having performed poorly, such as a language or cultural barrier, i.e., he was unable to read or comprehend that section of the test, or he was fatigued, anxious or nervous, did not eat during a break or was taking narcotic medicine. If there is no rational explanation other than malingering, advise your client of the results and finding by your expert. Tell your client this can have a serious negative effect on the value of the case if it is revealed to the opposition, particularly if there are no other undeniable proofs of his or her injuries, such as a fracture or positive diagnostic test. Ask your client if he or she has any reason or rationale for the poor showing that the doctor may not have considered. If you remain skeptical by your client’s response and your client has unshakable sky-high expectations, it is time to consider whether it is worth it for you to remain in the cases. I have had to go through this experience on a couple of occasions and when the client’s expectations were way out of proportion to what the compromised value was, I have suggested that the client find alternate counsel, as it would be unlikely for me to meet those expectations.

Practice Point:

Tests performed by consulting expert may not be discoverable

If the test is done by your own undisclosed hired consultant, and there is no reference to the test in any records of treatment that are subject to discovery, you may not be required to disclose the test to your opponent. Many jurisdictions, including Illinois, allow the identities and workup of consultants to be considered privileged work product until and unless you disclose the witness as someone you will call at trial. Indeed, if you have a client whom you privately suspect is not being entirely forthright with you, using undisclosed consultants for testing is a safer avenue to confirm your beliefs, without destroying the case value in front of your opponent. If your consultant tells you there is no other medical explanation as to why your client performed poorly on one of the recognized tests to rule out malingering, i.e., The Word Memory Test (WMT), The Minnesota Multiphasic Personality Inventory (MMPI) or The Test of Memory Malingering (TOMM), it is time to preserve your integrity and withdraw from the case if immediate settlement is not an option.


The above advice came from…

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