confessions of a personal injury lawyer: your doctor

Frequently, one of the most frustrating challenges in an injury case involves your doctor.  Only someone with a medical background can offer the required evidence about an injury, so your case requires the cooperation of your doctor.  Unfortunately, it is not uncommon for physicians to have lawsuit phobia.  He or she is happy to treat you, but it is a different story when requested to express a formal opinion for a claim.  There are doctors and medical facilities which actually have a blanket policy that they will not get involved, leaving the patient without the medical evidence necessary to make the case.

When a physician is willing to express an opinion, the opinion has to be based on sufficient probability to be usable.  Medical opinions do not have to be based on certainty, but to be admissible as evidence, a medical opinion has to be based on a more probable than not basis.  If the physician is willing to express the opinion that more probably than not your injury or continuing problems are from the accident, the opinion can be used in your claim.  However, if the medical opinion is that your problems “could” be or “might” be related, then the opinion fails as a legal matter.  Such a medical opinion cannot be used in your claim because it is deemed too speculative an opinion.

Physicians are remarkable people who deserve our respect and gratitude.  However, more of them should be willing, despite an inevitable degree of uncertainty, to express and defend their opinion, even though the patient was injured in an incident which results in a claim.

By:  Peter G. Webb


Posted in: Lawsuits, Personal Injury, Workers' Compensation


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