When your client gets medical treatment for a period of time after the injury, then stops going to the doctor, and eventually goes back for treatment later in the lawsuit, the defense calls that a “gap in treatment”. They say it in a way that makes it sound sinister. We are about to expose that unfair strategy as sleight of hand.
Here’s how you know it’s not a fair argument. The defense rarely tells the jury what they are suggesting because they know it won’t fly. Instead, they just float the term “gap in treatment” out there like a hot air balloon and hope some jurors climb in for a treacherous ride.
False Premises & Hinting That Makes No Sense
The gap trick starts with a false premise: if someone doesn’t keep going to the doctor, they can’t still be in pain. Everyone who has had chronic back or neck pain knows the no doctor = no pain premise doesn’t add up. You cannot rule out pain simply because the person isn’t going to a doctor at the time.
They build on this false premise by hinting at a conclusion that makes no sense. The farfetched, unspoken suggestion is that the exact kind of pain Ms. Jones had from the crash suddenly appeared again, out of the blue, in the exact same place, but now it’s got nothing whatsoever to do with the crash. In other words, they hint that it was there, it disappeared, it reappeared, and the crash is all just a big coincidence. Keep in mind, the only support they have for it allegedly vanishing is the false no doctor = no pain premise. Now you know why the defense rarely explains why they keep talking about the “gap”, it defies common sense.
The only other explanations they could come up with for the disappearing injury, reappearing no injury illusion is to accuse Ms. Jones of making it all up (a desperate move that most defense lawyers know to steer clear of, especially with MRIs that don’t lie), or to hint another mystery injury occurred to the exact place, on the exact, causing the exact same kind of pain (which would be another crazy, nonsensical coincidence).
The Truth
In most cases, the honest explanation for not going to the doctor comes from real life, common sense circumstances that jurors can understand from their own experiences. When Ms. Jones had hope of a cure, she was going to the doctor regularly, even though it took half a day every time she went (driving to the doctor’s office, sitting in the waiting room, waiting in the exam room, talking to the nurse, waiting for the doctor to come in, seeing the doctor, checking out, driving back home or to work). When there was a chance the doctor could fix the problem, that big loss of time was worth it. When she realized there was no cure (that she had reached maximum medical improvement and had a permanent injury), she got on with the business of life.
Why did she end up going back? The pain was taking a toll, she needed relief, even if it was only temporary, and she was hoping, maybe, there would be a new treatment. On top of that, we have a responsibility to bring you, the jury, current information. Ms. Jones’ doctor is coming to talk to you about her injuries. We felt it was important that he be able to take an updated history and examine her so he could give you current information about her condition. [See page 176 my book, Don’t Eat the Bruises, for more details.]
Voir Dire Piece
How many of you have had pain that lasted a long time? Did you go to the Dr.? Was there a cure? Did you keep going after getting answers and learning there was no permanent fix? Why not? Just because you stopped going to the Dr. does that mean the pain was gone?
What to Tell the Jury
The defense will use a term “gap in treatment” to describe times when Ms. Jones simply wasn’t going to the doctor for the pain she now has to live with, from a forever injury that has no cure. I expect they will use that term a lot without explaining what it is they are suggesting. We know there are times Ms. Jones was not going to the doctor for this incurable injury. You will see it makes sense she moved on for a while. So, what is the defense suggesting? I will say it for them, so we can talk about the evidence.
Here is the suggestion & here is evidence that proves it’s wrong:
- No doctor = no pain
- From life Exp. and common sense, we know that doesn’t add up
- Appeared, disappeared, reappeared/ it’s all just a big coincidence
- That doesn’t make sense either
What does make sense:
- It takes a lot of time to keep going to the doctor
- It makes sense to keep going when there is hope for a cure
- When hope for a cure was lost, she got on with life
- She returned because it was taking a toll, and needed some relief
- Her treating Dr. needed an update, so he could give current status
The courtroom isn’t a place for hinting, it’s a place for saying what you mean and backing it up. If they want to talk about this so-called “gap in treatment”, they need to lay out the point they are trying to make and back it up. If all they do is hint at it, what does that tell you about the weight you should put on it?