Will Your Pain Journal Help Your Personal Injury Case Or Hurt It?
Many people, who have suffered a serious injury, keep a hand written or electronic journal to help make sense of what has happened to them. They may keep records of medical visits and therapies or document changing emotional or physical states. Their journal may contain thoughts, insights, opinions and personal anecdotes. Often recorded are details about pain and what caused the pain.
Are you keeping a pain journal to document your car accident injuries? If so, you need to understand how your journal might be used for you or against you in court.
Before you start a pain journal
Before you start a pain journal, it is important to know that our system of law and its Rules of civil procedure may grant access by opposing parties to relevant information as it pertains to the lawsuit.
This means that pain journals are commonly requested, in a personal injury case, through discovery or a motion to produce. This means that there is a strong possibility you may need to provide a complete copy of your entire hand written journal or electronic file, including all correspondence, notes and journals. Personal injury claimants are under legal obligation:
- Not to falsify evidence
- Not to destroy alter or conceal relevant documents or materials if directly questioned about them under oath (such as in discovery).
Benefits of a pain journal
- A pain journal can be helpful. As time passes, memories fail. As a claimant you will likely be required to explain and answer detailed questions relating to your injuries. This usually includes symptoms, triggers and timelines. A pain journal can help you remember dates and events such as doctors’ appointments, and treatments. It can document time missed from work and activities you could not take part in.
- During defense examinations , a pain journal can help you answer quickly when you are asked questions about the accident, your injuries and the impact of these injuries on your daily life.
- When detailed correctly, pain journal can be a useful document that can demonstrate the on-going and consistent difficulties and impairments you face, as a result of the accident.
- During the rehabilitation process, pain journals can provide a better understanding of triggers and characteristics that relate to your injuries.
- A pain journal may help in making a diagnosis. When multiple injuries are present – your notes can be invaluable when describing the type and location of pain.
- Your notes can help therapists monitor your mental, physical and emotional states.
- It can be used to track appointments with doctors and provide a record of the treatments they provided.
- It can provide an up to date timeline of symptoms, improvements and regression
- Done well, your pain journal (as a legal document) can highlight and illustrate what a day in your life after injury is like.
- It can be used in litigation, mediation and trial
- Your pain journal is a written record that shows your experience of pain and suffering
How might a pain journal be used against you?
- Precedence has shown that in most cases, the courts will deem pain journals as “non privileged” documents and relevant to the personal injury action. When this happens such, documents must be disclosed to the opposing council.
- Claimants who have a pain journal will almost certainly be asked to produce it during discovery, at DME examinations; for treating physicians, home care assessments etc.
- Establishing plaintiff credibility is a primary goal in any personal injury claim. When information documented in a pain journal is inconsistent or contradicts the injured person’s verbal testimony – their credibility can be diminished.
- Personal entries that are completely unrelated to the accident may be taken out of context and used against you by the defense.
- Defense lawyers may contend that entries made regularly and on a daily basis highlight the fact that you are unnecessarily preoccupied by your injuries and the personal injury claim associated with it.
- Any embellishment or exaggeration will be scrutinized and may be used against you by the defense.
- Pain journals kept on a computer or mobile phone may prompt the defense lawyers to file a motion to produce your entire system. If this occurs, opposing counsel will look through your files, seeking any accident related information, they can use against you.
- Entries made will be scrutinized along with the entries that were not made. Juries may translate dwindling numbers of journal details and entries, to mean that injuries have improved. In the beginning, injury victims may be diligent when documenting details of their injuries and symptomology. But unfortunately, history has shown that many people fail to keep up these good habits over time. Even when injuries are worsening they may fail to keep a written record of symptoms.
Alternatives to a pain journal
One effective way of documenting and monitoring accident injury related symptoms is to visit your family doctor and other medical treatment providers on a regular basis. Describe the type of pain you are experiencing. Inform him/her of the impact your injuries are having on your day-to-day activities.
Your medical records and notes kept by your doctors will become important pieces of evidence used to support your claim.
Communicate any mental, physical or emotional difficulties that you are having. This could include questions and observations about:
- Type and location of pain
- Limitations and concerns
- Changing or worsening injuries
- Coping or treatment strategies
- Sleep disturbances
- Anecdotal situations where your regular activities have been impaired
As a general rule, it is important that personal injury victims seek out the advice of their lawyer before starting a pain journal or diary.
If one has been started without your lawyer’s knowledge – you should bring it to his or her attention as soon as possible. If the journal is to eventually be disclosed to the defense, its better that he know about it sooner than later.
It is also important to note that your personal Injury lawyer is under legal obligations as well. The law binds him/her, not to obstruct the defending parties access to relevant evidence materials or documents. This includes concealing, destroying or coaching a plaintiff to do so.
It would be wise to speak with your lawyer before starting a journal. How your injuries and symptoms are documented can make your case either stronger or weaker. For most plaintiffs, a pain journal is an imperfect medium for documenting pain and emotions.
Ask your lawyer about the best way to keep track of your symptoms and periods of pain and keep open lines of communication with your treating physicians.
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