When sitting down to prepare for their deposition, malpractice victims want to know, “How is the defense lawyer going to get me? What should I be ready for?” Besides checking the client’s criminal history through the Office of Court Administration (a must in every case!), I look through the medical records for statements made by the client. The medical records will have a wealth of statements made by the client, which can be very damaging and inconsistent with their testimony at deposition or trial.

Let’s take an example: Client “A” alleges a failure to diagnose coronary artery disease against a primary care physician that results in the death of his wife. There was a two month interval between the decedent’s last office visit with the primary care physician and the death of Client “A”‘s wife. When his wife dies of an acute myocardial infarction (fancy medical term for a heart attack), Client “A” tells the hospital nurse that his wife had complained of chest heaviness radiating to her jaw and left arm on and off for the last three weeks before her death. (you know where I’m going with this, right?) Client “A”‘s statement to the hospital nurse is documented in the hospital chart.

After the lawsuit is filed, the defense lawyer gets the decedent’s hospital records and VOILA, a virtual goldmine for the defense lawyer. The defense lawyer can hardly contain himself when he reads that the notation in the hospital record that Client “A” admits that his wife had been having chest pain before her death and did not seek medical attention. With this admission by Client “A”, the defense lawyer now has a theory for defending the lawsuit: BLAME THE DECEDENT!

What do I do as the lawyer for Client “A”? First, I ask Client “A” if the statement in the hospital record is true and whether he was the source of the information. If Client “A” acknowledges the truth of the statement, an attempt to deny it would risk losing the case and on top of that, risk criminal charges for perjury. I ask Client “A” whether the chest pain during the three weeks before his wife’s death was different in severity or duration from the chest pain that she had when she visited the primary care physician/defendant. If the pain just prior to death was mild and brief in duration, this helps explain why the decedent did not seek medical attention.

You should also ask Client “A” why the decedent did not seek medical attention in the gap between the last office visit with the doctor and her death. Most clients will tell you that the decedent was relying on the advice of his/her doctor that there was nothing wrong and the chest pain was nothing to get excited about. If true, this helps explain why the decedent did not seek medical care.

If you want to know how defense lawyers spot a liar in malpractice lawsuits, the most common method they use is to scour your medical records for damaging and inconsistent statements. Make sure your client is ready to answer questions about the damaging statement by making sure you have read the medical records in their entirety for any statements that can be attributed to your client. Most importantly, if you find a damaging and inconsistent statement in the medical records, make sure your client is ready to answer questions about it.