The “Magic” Words In Injury Cases

Attorneys are a strange breed of people. Everyone knows that. They will fight about the most insignificant, just plain dumb things in life that you can imagine. I once heard attorneys arguing at a retreat about how many nuns you could fit on the head of a pin in Heaven. Honestly, is it one or ten or a hundred or a thousand or a million? Geez.

There is another debate that has been going on for many years in injury law.

The question is must your own doctor use “magic words” when she is describing the degree of belief she has that your client was injured from the accident?

The “magic words” are within a reasonable degree of medical certainty.

This is significant because if your doctor does not testify with certainty regarding the  connection between your accident and the injuries, your case is not even submitted to the jury. It is thrown out on something called a Motion for Summary Judgement.

I will give you an example of how worrisome this is to lawyers in the injury field.

If you looked at the transcript of the last 500 cases in Allegheny County for injury law in which a jury was seated, I believe in all 500 of those cases the doctor will be asked the following question by the Plaintiff’s attorney:

Doctor, taking into consideration your review of the records and the treatment of my client, do you have an opinion, within a reasonable degree of medical certainty, whether the accident in fact caused her injuries?

Again, the “magic words” are reasonable degree of medical certainty.

It is uniform in every injury case that the attorney will ask those words.

I can tell you from personal experience this has kept many an attorney awake at night. In addition to that, it is almost bizarre the way lawyers have to approach the doctors who we use.

1st of all you have to pay them a crazy amount of money to even give you their testimony via a deposition.

It is not at all unusual for the doctor to charge $4,000.00 for an hour of his or her time.

2nd, you have to take the deposition at the doctor’s office. This is done at the doctor’s convenience at a time that he or she wants to do it. 5:30 A.M.? Believe it or not I have attended depositions at that time of the morning. 6:00 P.M.? Same thing.

To me it is just a crazy environment, but it is absolutely necessary to represent your client adequately.

Pittsburgh Wrongful Death, Medical Malpractice, Slip & Fall, Car Accident and Criminal Defense Attorney Bernie Tully brings all this up in this Blog because there was recently a Pennsylvania Superior Court case that addressed the issue of the doctor’s magic words.

In the case of Truax v. Roulhac, the Pennsylvania Superior Court ruled that expert witnesses are not required to use “magic words”
when expressing their opinions. Rather the substance of their testimony must establish the doctor’s firm belief that the injuries were caused by the accident. Saying that it is possible or could have been caused by the accident is not enough.

So there you have it.

What this decision and others like it show is that the doctor does not have to use the magic words “reasonable degree of medical certainty”.

So I guess attorneys are going to have to find something else to fight about.

So how many nuns do you think could fit on the head of a pin?

Thanks for reading.

Bernie the Attorney