Written By: Patrick Johnson
WHEN IT COMES TO SURVEILLANCE, SHARING IS NOT A VIRTUE
This issue came up again for me late last week, and I thought that we would revisit the issue. I know that everyone appreciates learning a new trick, but we sometimes have to revisit issues or provide an issue again to newer adjusters.
Trust us, we know that it is tempting to want to send good surveillance to the treating physician or the Second Medical Opinion to support that the claimant is lying or exaggerating their complaints. It feels like you are being proactive, and that you can perhaps get the treating physician to change their position. Ultimately, you are likely doing more harm than good by sending the surveillance video to either of these doctors.
Before I begin discussing why this is never a good idea, you need a little background on how we can protect surveillance, and how it tends to affect the overall case. First, in Louisiana, we are not required to provide opposing counsel any surveillance that has been performed until after the claimant’s deposition has been taken. Even if the claim is not formally litigated, the same rule applies. In that situation, if opposing counsel wants the surveillance, he can file a 1008 and wait for his client to be deposed. The reason why this is a benefit to us is that we can ask questions of the claimant about those activities observed on the surveillance to test the claimant’s honesty. While some may see it as our setting a trap for the claimant, if the claimant tells the truth, then there is no harm. But if the claimant lies about the activities in which we have surveillance, then it may give rise to either a defense of fraud under 23:1208 or as an attack on their credibility. In addition, very rarely does one video clip alone give rise to a fraud defense or solid challenge to credibility. Surveillance is most useful when it can show a pattern of activity. For example, video of a solitary day showing the claimant playing basketball can be discounted by the claimant claiming that they were laid up in bed for the following three days because they overexert of themselves playing basketball. If we were to have the following two days showing the claimant performing other activities, then we can undercut any attempt by opposing counsel to lessen the adverse impact of the first day of surveillance showing him playing basketball. The “I exerted myself but paid for at the next few days” is always available to the claimant if you only have one days’ worth of surveillance. This is why we often request multiple days of surveillance to support a pattern of activity by the claimant, especially if the good stuff is caught on the last day.
Perhaps more importantly, once the claimant knows what that video shows, because we have reached a point in the case at which we need to disclose the video to the other side, the claimant will absolutely not engage in any more of those activities. Once the claimant has been made aware that he is under surveillance, he will likely act like the long-suffering injured employee at least through trial.
As to the treating physician, under no circumstances whatsoever should you ever send surveillance video to the treating physician or the claimant’s counsel. In almost every circumstance, the treating physician will not change their opinion. In fact, I am fairly comfortable saying that under no circumstances whatsoever will it ever change treating physician’s opinion. And, once you show that video to the claimant’s treating physician, they will tell the claimant and the attorney, and then the claimant will make sure that he performs no other activities that can be caught on video. This causes you to lose out on any further useful surveillance opportunities. If we need the treating physician to comment on the surveillance video, then we will do it during that doctor’s deposition.
Regarding what to do with the Second Medical Opinion physician, if you send the video to the doctor for their comment, then that video becomes part of their record and subject to subpoena by the other side. That is a way that the other attorney can get the video before we have taken the claimant’s deposition. So, if you ever have really good video for which you want the Second Medical Opinion physician to comment on, then send us the video, and we will schedule an appointment to meet with the doctor to show them the video. We will allow them to watch the video, and then we will leave with the video. That prevents the video from technically coming into the doctor’s official record, but we get the doctor’s thoughts on what the video shows and whether it affects his opinion. We will then mention it to you, and that reporting will the protected by the attorney/client privilege.
Surveillance is one of the most useful tools that we have on the defense side, but what makes is useful is how you use it, not just that you have it.
