Feb 10, 2012

With an article like this, I'm going to get straight to the point. So, here goes. Contrary to what most defense lawyers, misguided insurance adjusters, and ultra right-wing radio show hosts believe, lawyers who represent injured car crash victims DON'T want their clients to "stay injured" until a settlement or jury verdict is reached. Before reading this article, you were probably SO CERTAIN that I tell my clients who profess good health after an accident to "stay hurt" and to "not jump the gun" by telling the insurance company lawyer that their injuries have healed. Nope, in these types of situations, I advise my clients to tell the truth. If a client tells me that they are healthy and feel great, I tell them to embrace the truth.

In an injury case brought against an insurance company, the entire process boils down to how believable you present as a plaintiff. In other words, does your crash, your care, and your recovery make sense? Do all of those facts fit together in a logical and consistent way? Overall, if your case makes sense, no insurance company or jury will have a problem compensating you for your injuries. If the facts of your case don't make any sense, the insurance company or jury will be much more reluctant to compensate you.

Generally, cases that make sense to insurance adjusters will settle earlier and for more money than cases that do not make sense or that have inconsistencies. Does that mean that you need to pander to your insurance adjuster? The answer is no. Some people, regardless of your straight-shooter veneer, are going to be haters and disbelievers. Nonetheless, the good news is that insurance companies do not have the final word when it comes to your case. When the insurance companies aren't "getting it," we sue and take your case to the final authority, the jury. While many lawsuits that we file settle before we make that final walk into the courtroom, the cases that are won at trial are ALWAYS won because the facts of the winning case made sense to the jury.

Consider a car crash that does not cause much damage to either car involved. The police at the scene of the crash report that no one was injured. The car crash victim allows weeks to go by without reporting her injuries to any doctor. Then the injured party hires a lawyer to represent her. That person is then sent to a doctor by her lawyer. That same doctor pushes that person into expensive spinal injections or perhaps a pricey surgery. The person reports only a little bit of improvement from her injuries after the first round of care. Then that person goes back to that same doctor for more expensive injections or surgeries. The person finally stops treating. But when that patient is asked how she feels, she insists that she is still in severe and debilitating pain.

Okay, now I want you to put on your "sit in judgment" hat for a moment. The insurance adjuster, the defense lawyer, the mediator, the judge, and ultimately, the jury puts on their "sit in judgment" hat as they process the sequence of events that comprise your injury claim. Now that you have your hat on, is anything in the case that I just explained not making sense? Let me change the question: does anything from that case make any sense to you?

  • Why is there so little damage to the car and how could someone get hurt in such a minor crash?

  • Why did the person not report injury at the scene?

  • Why do weeks go by with no report of injury to an urgent care or emergency room?

  • Why does a lawyer get hired BEFORE the patient sees any doctors?

  • Why does the doctor jump right into very expensive and aggressive treatment as opposed to trying Vicodin and a little physical therapy first?

  • Why does the person go back for more expensive and aggressive procedures even though those procedures didn't work in the first place?

  • Why does the person stop care BUT still claim to be in such outrageous pain?

Think about that last statement for a minute. The person is probably going to say that in the beginning, she did not get to see a doctor right away because she did not think that she was injured. But now, she is certain that she is still injured, and yet, is not seeing anyone to treat for her injuries.

Are you buying any of this? Of course not but guess what? Insurance adjusters, defense lawyers, and juries see these kinds of cases all the time. Not surprisingly, juries award nothing to folks who try to sell this type of story. Also, because insurance companies only pay based on what they think a jury will award, insurance companies pay very little in pre-trial settlements for this kind of case.

When dealing with insurance adjusters, mediators, judges and juries, what makes sense to them would be the same things you or even your 5 year old would expect to see: bigger crashes, ambulance and paramedics, prompt emergency room follow up, a quick follow up with a family doctor, 12 weeks of conservative physical therapy, maybe a follow up or two with a specialist, and most importantly, progressive improvement in the patient's condition. Ultimately, it would make sense that there is an end date in care that coincides with a patient's symptoms being minimal or at least controllable.

Looking at the above, the natural expectation would be that a patient will at some point report that she feels a lot better than she did after the accident. In fact, after all of the above, wouldn't it seem odd if she didn't say she felt better? In fact, after the above care, if she says, "I devoted a year to care, follow up and procedures, and now I'm exactly the same or worse than when I started," that statement would simply make no sense. For a person sitting in judgment who is trying to make sense of everything, having a plaintiff report that no treatment has helped would certainly undermine the effectiveness of the care that the patient received.

It would certainly call into question the competence of the physicians involved and would ultimately undercut the credibility of those physicians if they are called to testify at trial. The jury might ask why they should listen to Dr. Quack here? He treated the plaintiff for a year and according to her, she feels worse than she did before he started treating her. It just wouldn't make any sense. Remember, winning a case at trial is an exercise in making your case make sense.

If you were involved in a minor car crash and you did not follow up with your doctor because you couldn't imagine that your stiff neck was caused by the small car crash, by all means, say that! That story actually makes sense. Trying to create some other story will make your story hard to believe and your case harder to win.

Furthermore, you should think logically about how others will perceive your treatment decisions. For example, seeing your lawyer's favorite doctor is probably not a good choice if your goal is to retain your straight-shooter status with those sitting in judgment. In fact, it is much better for your case to go to a doctor that is barely on speaking terms with your lawyer. More importantly, the biggest goal in your case should be to get better so that you can enjoy life to the fullest.

Lastly, don't "make mountains out of mole hills." If you finished your care because you recovered from your injuries and feel great, that's a good fact. This legitimizes you, your treatment choices, your treatment provider's level of competence, and makes you look reasonable. Remember, this is all about making your case make sense.

For more than 20 years, I have represented all sorts of injured folks. Every case is different just like every person is different. But in all of my experience, I have always relied on one overriding truth... than people who look like they are trying to cheat the system. In this, as in many other areas, honesty is the best policy.


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