PRE-ACCIDENT RECORDS

SUMMARY: Human recall is demonstrably unreliable for registering the detail and order of past events.  The process of making a diagnosis or attributing medical causation is at variance with the principles of Legal Causation.  Irrespective of the needs of Medical Law, for personal injury litigation Legal Medicine requires that pre-injury medical records be available to all interested parties.

Distorted Recall

Contemporaneous written record is the gold-standard for establishing the sequence of events.  Although the clinical record is, of course, subject to omission and misconception,  it is relatively permanent and free from progressive distortion with the passage of time and re-copying. 

By contrast, human memory is not only fallible but also subject to progressive recall bias.  The belief is faulty that our memories are stored like a videocassette recording that can provide an accurate, detailed replaying of observed events.  Rather, a few fragmentary details are stored in memory and, at first recall, the mind creates a reasonably consistent and coherent new story from those fragments.  Each retelling is then susceptible to further distortion, incorporating suggestion from external and internal sources. 

That is to say, we recall not the original incident but our last  distorted retelling.

If a person has vested interest in a sequence or a causal connection, that bias inadvertently deforms the memory ¹ to fit the desired pattern. ^{2 []} Thus, a personal injury claimant tends to progressively change the fact pattern to create a story more consistent with the wished-for picture. 

This is nothing to do with fraud or lying:  it is a universal propensity of the human memory. 

Diagnostic Process

The process of making a diagnosis or attributing medical causation is at variance with the principles of Legal Causation. 

Medical diagnosis combines ³ heuristic ("rule-of-thumb" or "trial-and-error"), probabilistic, ^{4 []} causal and deterministic reasoning styles, ⁵ whereas litigation looks for causal connection between a sequence of events based on deductive reasoning. ⁶ That is to say, a clinician uses the clinical history and any other available contextual information to generate a hierarchy of diagnostic probabilities, then includes or excludes each probability by clinical examination and diagnostic testing. 

It follows that diagnostic reliability is only as good as completeness of the clinical history and the contextual data. 

The interpretation of a radiograph or a diagnostic imaging study is, to greater or lesser extent, dependent on the clinical context. ^{7 []} As an extreme example, exactly the same set of chest radiographs might be alternatively interpreted as probable lung cancer in a 60 year-old 2 pack-a-day smoker and as probable tuberculosis in a 20 year-old who had just returned from 6 months living rough in India. 

Medicolegal Implications

Irrespective of the needs of Medical Law, for personal injury litigation Legal Medicine requires that pre-injury medical records be available to all interested parties.

With the exception of the general practitioner, attending physicians usually do not review pre-accident records. Consequently physicians can and frequently do make erroneous Causal attribution based purely on patient history. 

Often the past medical record reveals undisclosed physical and psychological factors that are contributing to, or the principal cause of, the medical condition that is being attributed to a personal injury. 

Examination of the pre-accident clinical records may even show that apparently new-onset symptoms are in reality a recurrence of a pre-existing pattern of symptoms. 

Although there may be a Causal connection between the immediate post-injury symptoms and the accident, previous and recurrent physical and psychological stressors may have produced that pattern - and will again. Fibromyalgia is a case in point. 

The medical context in which injury occurs is essential to a valid disability assessment, to medical analysis of Legal Causation, and to evaluation of the Standard of Care provided. 

Though the Court may have legitimate concerns about Defence "fishing expeditions" from the point of view of Medical Law,  the need to understand the context in which illness and symptoms occur is over-riding in Legal Medicine. 

Copyright © 2009 Electronic Handbook of Legal Medicine