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What you tell your Doctor about Your Personal Injury is Admissible Hearsay

If you follow this blog, by now you understand hearsay and it's applicability to Massachusetts personal injury cases. Through this blog, our Boston personal injury lawyers have educated you to know that hearsay is no longer an abstract concept only known as the objection often shouted out in TV legal dramas. You know that hearsay is an out-of-court statement submitted to prove the truth of the matter asserted. In plain English, hearsay is when you try to submit to the court someone's statement, either verbal or written, and you are trying to offer it as proof of what was asserted in that statement. Your say is inadmissible because it is generally not very reliable. But, there are exceptions to the rule.

The exception to the hearsay rule that we're going to discuss today is statements made to Physicians. Remember, the whole point of the exceptions to the rule is that these exceptions tended to be instances in which the out-of-court statement is more reliable. Excited utterances, dying declarations, and the like all tend to be more reliable than your typical out-of-court statement based on their nature. Statements made to physicians can be just as reliable.

Generally speaking, people tend to be more honest and straightforward with their treating physicians. That is particularly the case when the person has suffered a significant personal injury and that it is logical that if they fail to be straightforward, candid, and honest, they may not get the proper medical treatment, thereby putting their health and potentially their life, in jeopardy. So this exception to the rule provides that a physician may testify as to his or her patient's injuries, ailments, pains, symptoms, feelings and conditions as described to him or her by his or her patient when these serve as the basis of his or her medical opinion and if the statements relating to them were made to him or her by the patient for the purpose of seeking medical advice.

So, this is really a two prong test. First, to be admissible the out-of-court statement from the patient to the physician must have been used by the physician in formulating his or her medical opinion. Second, the statements must have been made for the purpose of seeking the medical advice. There are cases in which the injured party has tried to submit out-of-court statements made after the treatment was completed. The patient, in those instances, was no longer seeking medical advice. Rather, it appears that patient was seeking to establish new testimony about which the doctor made later testify in court. That is not so reliable. What is reliable, is when the patient is legitimately suffering and needs medical help. In those instances the likelihood of the admissibility of that evidence is high.

As a personal injury attorney who has grown up in practice in Massachusetts for years, I know, as you likely do, that we have a culture here in New England of being tough. It is generally socially acceptable to downplay the extent of your injuries to your doctor for the purpose of not appearing weak. "I'm fine., it's not so bad. It doesn't really hurt you much anymore. I can walk once I get up and get the blood moving." By making statements that downplay the reality of an injury, a party with an injury is creating evidence against themselves. As you better understand this doctrine, you can start to understand how downplaying the injury could pose an issue to the case.

Imagine yourself in court at trial on your personal injury case. Your attorney asks you on the stands how bad your injury was. You then testify that you are in excruciating pain from the point of the accident through the entire emergency room procedure. You testify that it was the worst pain you ever suffered. The treating physician then gets on the stand. The treating physician testifies that you stated to her that you were in pain, but that you were fine, and that you would probably be okay later. She goes on to state that you told her you were feeling much better after she completed her initial intake. You are getting the picture. Inconsistent statements between what you said to your doctor and what your doctor said you said your doctor create a problem of credibility at trial. The lesson? If you are injured, do not downplay your symptoms when you are receiving medical attention. You cure this issue by simply being honest with the treating physician at the time of treatment. If you did downplay the severity of your injury when receiving your medical treatment, be sure to tell your personal injury lawyer at the outset of the representation. It is critically important for your case that you create a reliable record of your symptoms and medical treatment.

Categories: Personal Injury, evidence

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