Prior to the commencement of proceedings in a personal injury or medical negligence matter, a solicitor usually requests the claimants general practitioners and any other allied health professionals notes i.e. physiotherapists, ambulance etc. Apart from the notes being useful when the Barrister prepares a preliminary advice, whats the purpose of having clinical notes on hand, early in the proceedings? How can clinical notes best be utilised in the claimant’s case?
Firstly, I would always recommend that clinical notes be requested from a GP, Hospital (if seen in Accident and Emergency or injury occurred at a hospital i.e. surgery, pre and post care etc) and any treating allied health professionals, in every case. The clinical notes will either support the claimant or will show, to some degree, some of the detrimental aspects in the claimant’s case, which allows early address. How?
The clients will either go to their GP’s, Accident or Emergency (possibly via ambulance) at a hospital or their allied health professional, soon after the accident or injury, if not already hospitalised. If complaints or injury are part of the early contemporaneous clinical notes this will usually provide evidence of the injury and/or complaint. If there is no extemporaneous injury or complaint recorded in the notes, this will usually be unhelpful to a claimant.
What To Do With Clinical Notes:
- Carefully review the clinical notes to determine if the claimant has had an earlier injury, complaint or treatment for the same body parts which are the subject of the current claim. Its better if you determine the medical history, rather than wait for the defendant to find any possible non disclosure or medical history difficulties in cross examination, when there is the potential for a finding on credit, which may be detrimental to the claimant, and damages reduced as a result.
- After reviewing the claimants medical history and you find complaints of similar symptoms and/or earlier accidents and/or injuries, you will then be able to use this as an avenue to make further enquiries about;
- the longevity of the symptoms and were there earlier claims for damages or compensation, as a result of the earlier symptoms/injuries
- how long did the earlier complaints/symptoms/injury restrict the claimants;
- work capacity
- ability to perform or assist with domestic and related activities
- what treatment was obtained, by whom and when?
- Clinical notes can also assist you in determining (and getting further instructions) and to what extent the claimant may suffer from other medical or health conditions (it may require further digging on your part) which may have an effect on;
- life expectancy
- working life expectancy
- capacity for work
- capacity to perform or assist in domestic related activities.
- The above, will alert you to the need to obtain other evidence in support of the claimant, confirming a probability of his/her ability to work in a generalised unrestricted fashion or despite the previous complaints or injuries, the claimant has a normal statistical life expectancy, if that is in fact, the case.
- Clinical notes can also demonstrate periods of unemployment, post accident employment, subsequent accidents, injuries and any mental health issues, that may not have been previously disclosed. This will direct your attention to possibly obtain further instructions and the need for X evidence.
- If you have trouble reading ‘doctors scribble‘ then you can always contact the Practice Manager or the doctor themselves, to help decipher the notes. Alternatively you may request a typewritten transcript of the clinical notes, which can be done at a cost.
- Its good practice to request your client’s clinical notes by way of an authority (where possible) rather than by way of a subpoena. Then you are on the front foot, know the ‘bombs’ within the notes and can deal with them, prior to the defendants obtaining the information via subpoena.
From my experience, clinical notes are a rich source of information, that will either support or detract, or a mixture of both, to or from the claimants case. They may be useful to the defendant in cross examination, to the detriment of the claimant.. They can also be useful for the plaintiff to support the claimants case and direct you to gather further evidence.
I would like to know how I can assist you with your medical negligence or motor vehicle accident claims. Lets talk about how I can assist you achieve the best results over a coffee (if in Sydney). Give me a call on (02) 9336 5399 or email me at firstname.lastname@example.org to organise a time or a phone/Skype conference.