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Acupuncture Today
July, 2000, Vol. 01, Issue 07
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Doctor, Don't Hide the Prior

By Kenneth Satin, JD

Over the last two years, some important decisions concerning tactics during the "discovery" phase of a case. During this phase, each side seeks to glean all the information it can about the other side's case.

A case in point is Sherman v. Kinetic Concepts Inc., 67 Cal App 4th 1152 (1998). In that case, the message was made loud and clear: hiding documents or other information will not be tolerated, and the sanctions for doing so will be severe. In that case, the Court of Appeals admonished the culpable party and granted a new trial on the grounds that the defendant had failed to produce crucial documents relating to material issues in the lawsuit. The court indicated that the defendant intentionally concealed information that would bear significantly on the plaintiff's ability to prove the issues alleged in the complaint. As a result, the trial court was ordered to impose sanctions (fines).

Sherman is a reminder of what can happen if a party withholds documents or other crucial evidence while its lawyers and employees state that no such documents exist.

The importance from the acupuncture perspective occurs when an acupuncturist who treats an individual that has suffered injuries in a personal injury case inquires thoroughly about prior accidents and injuries suffered in those accidents.

A common defense tactic is to assert that whatever problems the patient experiences, while unfortunate, are due to anything other than the case at hand. Insurance defense attorneys and claims adjusters spend much time looking for earlier medical records hoping to document the most minute complaint of pain due to any cause at an earlier time. The approach will then be to assert that these problems are due to a previous event, perhaps even one ten years old, rather than the accident for which the carrier is liable.

Insurance companies have huge resources and access to massive amounts of information. The likelihood of a prior event being missed (particularly if a claim was made) is highly remote. Consequently, the patient and his/her doctor should be highly cognizant of the risk involved in failing to disclose a prior injury, no matter how insignificant it may seem during the period of treatment. After all, the one piece of information the insurance firms enjoy more than discovering a prior similar injury is to discover a patient and/or their doctor hiding that the incident took place.

In trial, credibility is crucial. Catching the patient and his/her doctor in what appears to be a significant failure to disclose can have disastrous consequences. The context in which this problem might arise concerns documentation in the medical records and the report that the doctor is asked to repair.

If the plaintiff's attorney assumes that the other side does not know of the prior event and seeks to have the doctor not reveal it and apportion, this is a grievous mistake. The request must be firmly rejected.

The point is that failure to disclose documents in the Sherman case (supra) is no different than the patient or doctor failing to disclose a prior accident or injury. Once the plaintiff and doctor are caught in non-disclosure, the legitimacy of the initial claim will not matter. The judge or jury will seek only one thing: punishment. What would have been an extremely good case with significant potential becomes an ethical landmine for the professionals, the doctor and lawyer, and a zero result for the injured party.

Click here for more information about Kenneth Satin, JD.


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