A medical malpractice case typically pits an injured patient (who has no recollection of the significant events) against a physician who will claim to recall every detail. Patients who become victims of medical malpractice while undergoing surgery, for example, will invariably have no recollection whatsoever of the pertinent events. Thus, in a medical malpractice case, the people you are suing are the only people who can testify with respect to what actually happened. It’s as if you were struck by a car while walking across the street. You recall none of the details of the accident, and the only witnesses to the event are the people who were in the car which struck you. And it’s not at all likely that they were ever admit to having been negligent.
In medical malpractice cases, the doctors have a potent weapon at their disposal: the medical record. The medical record usually provides a detailed account of what your doctor did, why your doctor did it, and when your doctor did it. The record is as close as you will get to a recording of what actually happened; but it is written by doctors, and for doctors. Accordingly, it may not be very accurate.
In any medical malpractice trial, the medical record takes on considerable importance. Your doctor may see hundreds of patients per week, and thousands per year. Yet, the medical record enables your doctor to take the stand and testify with precision with respect to what he did on any given date at any given time.
Jurors will place an enormous amount of trust in the medical record. It can decide the outcome of your medical malpractice lawsuit. Yet, you likely had almost nothing to do with its preparation. The official medical record may be inaccurate; it may attribute to you statements which you never made. It may not correctly recite your symptoms and complaints (seriously, would it shock you to learn that a doctor didn’t listen to you carefully?). Yet, jurors will often consider the record reliable. To compete, you need your own record.
If you have been injured and are planning on bringing a medical malpractice claim, you need to prepare a detailed narrative for your lawyer. You need to document your physician encounters.
A narrative serves several purposes in a medical malpractice case: it provides your lawyer with information necessary for the evaluation of your case. It can highlight instances in which your recollection is at odds with the doctor’s. Most importantly, it provides a resource in the event that your recollection begins to fail over time. Because medical malpractice cases usually take two years or more to go from “filing” to “trial,” you may find yourself behind the eight ball if you can no longer recall the important details of your case. A narrative can help.
It is important to make certain that you prepare the narrative as part of a communication to your attorney made for the purpose of obtaining legal advice. If you do that, you can avail yourself of the protections of the attorney-client privilege, and keep your narrative confidential in your medical malpractice case.
Paul Lauricella (Google+)