One of the questions that we frequently encounter from clients in preparing for their deposition testimony is whether their failure to recall prior physical complaints and treatments by their physician could result in dismissal of their claim. It is of particular concern when clients have had medical treatment for prior injuries such as whiplash, back and neck pain, disc injuries, spinal cord injuries and TMJ. Many clients have experienced complaints of pain for which they sought treatment from their doctor. When questioned about whether they had ever experienced such treatment in the past, many clients legitimately have a difficult time remembering that they had described such pain symptoms to their doctor. This is particularly so when the complaints resolved and were not a continuing issue in their life. In order to minimize the occurrence of this issue for our clients, we routinely obtain as many of their past medical records as we can locate. We require that our clients carefully review these records before their deposition is taken in order to help them recall such pain complaints and treatments. Despite careful preparation of clients for deposition however, this problem still arises when clients fail to recall these important details of their past medical history.

The failure to recall specific instances of prior medical treatment creates a problem on two levels for clients. First, it gives the defense attorney an opportunity to imply that the client is being less than truthful about their prior medical history. Clients need to try lawsuits on offense in presenting their case, not on defense attempting to explain inconsistencies in their testimony. A client's failure to recall specific instances of prior medical treatment, particularly when it involves the same part of the body injured in the current accident, may impeach their credibility in the eyes of the jury. If the jury believes that a client's failure to recall such prior treatment was intentional, the value of their case will have been substantially reduced. It must be avoided.

Secondly, in the most extreme cases, the failure to recall important prior treatment and complaints may result in a motion to dismiss the claim based upon a fraud. The case law in Florida is clear that dismissal of a claim based upon fraud is an extraordinary remedy. Trial courts do possess inherent authority within their sound judicial discretion to dismiss an action in which a plaintiff has perpetrated a fraud on the court. Such discretion should only be exercised in those cases where it is clearly and convincingly demonstrated that the plaintiff has purposefully pursued a scheme to subvert the judicial process. Obviously, this would be limited to the most extreme cases of a clients "failure to recall" such evidence. It should not be a concern to a client who suffers a simple lapse of memory. This issue should be fully discussed between a client and their lawyer in preparation for the client's deposition and trial testimony. Thorough and intensive preparation is the best preventive measure.


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