HOW TO SERIOUSLY MESS UP YOUR CLAIM FOR PERSONAL INJURY

First, let’s have some established understanding of what I mean by “mess up”, as it relates to an injury claim.  What I mean by that is either: (a) Making your claim more difficult than it needs to be; and/or (b) Making your claim worth less than it otherwise might be worth; and/or (c) Making your claim impossible to bring.  I made a list of A FEW of the things that I have seen people (claimants) do in their claims.   By “claimant”, I mean an injured person who has the right to present a claim for injury to an insurance company or potential defendant(s).    This list is by no means exhaustive, just some common things I have seen over the years that can adversely affect a claim:

Failure to have a lawyer/Trying to do it yourself

I love to do it yourself (DIY) on home projects, car maintenance, etc.  HOWEVER, I try to know my limits.  I am not re-wiring an electrical panel or plumbing a new shower and tub or re-building a transmission OK?  It is not what I do every day and I realize that I am less skillful than others when it comes to the more complex stuff (my wife might dispute this assertion).   Hopefully, a lawyer offers a claimant two things:  Experience and Advice.   Can a layperson claimant get more money than they could with a lawyer?  Yes, that is possible, but in my view such is unlikely. When you have been hurt and you are dealing with family, job, medical appointments, therapy, medications, and pain, it might not be the best time for you to have important conversations with insurance claims adjusters (many times these conversations are recorded and transcribed).  Although they may sound nice on the phone, when they ask you questions like “Have you ever seen a chiropractor or an orthopedic doctor before?” or “Have you ever had pain in that area of your body before?” – they are not doing this so that they can pay you more money.   These questions are looking to blame your injuries on something other than their insured, i.e a pre-existing condition.   Likewise, if they ask “who is your primary care physician?”, even though you may not have seen that doctor for this injury, they are asking that question so they can obtain those records in the future and see if you ever complained about the injured area of your body before.   For that reason, typically I do not let my clients fill out and return medical releases to third party insurance companies.   I obtain the records and I provide them to the insurer.  Why?  Because if the insurer wants the rights to ALL of my client’s medical records, they can get that as part of formal discovery after a lawsuit has been filed.  That way, I have the right to see the exact same documents they get.  (Medical providers notoriously send different people different records, even though they may have requested “all” records).  Finally, if I have said it once, I have said it a thousand times:  Insurance companies only willingly pay what they fear they might lose in front of a jury.   Do you think a layperson handling their own claim is serious threat to an insurer? – that the layperson claimant can successfully conduct their own jury trial?   I will end by saying that many have tried, few have conquered.  Most times a layperson cannot even get through the formal discovery stage of a lawsuit, that is IF they can manage to draft and file and serve it all correctly.

Valuing claims is also not a science, but depends on many factors.  Insurance companies use computer programs, based on many different algorithms, and on specific claims handling historical data. However, they typically fail to consider many things outside of that, variables which can affect the value of a claim.  Over the years, many people have asked me a question along the lines of “I broke my ankle and had to wear an ankle boot for 6 weeks and my ankle still hurts sometimes. The insurance company offered me $20,000.00, do you think that’s fair? Should I take it”   My answer is usually always the same – Unless I personally do an investigation, review all of your medical records, conduct some research, etc., etc., I honestly have no idea.  A funny thing I have seen a few people do is to cc: a lawyer on their email correspondence with a claims adjuster.  I suppose they hope this a veiled threat that if the adjuster does not pay, they will get a lawyer or that they have a lawyer who is watching out for them.  Frequently, these people may know the lawyer or have spoken to the lawyer at some point:  There are two reasons why you should not do this: (1) It is very tacky, and (2) The adjuster knows you are bluffing or you would have already had a lawyer.  Furthermore, the few times I have seen this – I simply “reply to all” that I do not represent the person.  I do this because I believe that I am ethically required to do so.  I either have to say yes I do represent them or no I don’t.   I have even had a few adjusters call me to verify that I do or do not, in fact, represent someone who said I did or that I would.   If I represent someone, I am ethically bound to notify adjusters about that and I do that as soon as possible.   Lawyers are communicators and wordsmiths.  Once a lawyer formally represents a claimant, they take over all communications with adjusters.

I will end this segment by stating that if a person tries to handle their own case at first, and say gets to the stage of a demand and an offer, frequently they are disappointed when they feel like they have been treated unfairly and they call a lawyer who then tells them they are not interested in taking the claim.   The demand may have been too low, the potential client may be unreasonable on their valuation, etc., but most of all the lawyer has to unravel the claim and any damage that may have been done, so it creates a difficult environment (representing a person who did not have a lawyer earlier in the process).

Failure to follow a physician’s or healthcare provider’s advice 

I just sat through a deposition of a client recently, during which the insurance defense attorney questioned the client intently on previous hospital visits, the discharge records on one previous visit was marked “Discharged AMA” (again medical advice). What that means is that the patient needed further tests or medicine or observation or whatever – and they begged the patient to stay, but the patient would not listen and left anyway.  So “AMA” is the hospital’s trying to say – “we tried our best, but are not responsible if the patient refused to listen”, etc.   But, what the insurance defense attorney was seemingly trying to establish was that this client was unreasonable, angry, hotheaded, and argumentative.   Now this client said that he’d left the hospital that night after sitting there for 3 hours and not seeing a doctor, so I do not think it effected their claim or lawsuit any, but not following a doctor’s advice can have further ramifications.   Let’s say a family doctor told a patient to go to see an orthopedic doctor, because they suspected a broken done.  Then the patient waited a while and then went to see an orthopedic surgeon a week or two later, only to find out the bone had started to heal and it was then too late for surgery to better and more permanently treat the problem.

I have had many cases where a client refused things like needles or invasive testing and I total get that.   Fear is real thing and we are each in charge of our own bodies, but whatever the reason, you should try to explain why you did not do or will not do something.   For example, if your doctor prescribes pain pills and asks at the next visit if they worked, a response often heard is “I could not take them at work, they made me too sleepy” or “I could not take them because I run the carpool for my kids each day and the label on the medicine bottle said to not drive if taking, so I only took them at night”.  That has no effect and is not what I am talking about here.   I am talking about things like a surgeon sends a patient to physical therapy and the patient does not ever go.    Or the therapist prescribes home stretching and therapy and the patient fails to ever do it.    Months later, recovery has not gone well and the person is claiming a lifetime of pain and suffering.  At the surgeon’s deposition, the insurance defense attorney will ask “Doctor, had the patient followed your advice they would have probably been better off than they are today, having done no therapy at all, isn’t that correct doctor?”.  The answer is usually along the lines of  “yes, that is likely”  or “Generally people who complete therapy have a better overall outcome with pain, function and limitations that people who do not do the therapy.”  So, here is the setup – At trial (if case goes that far) the insurance defense lawyer will ask the Judge to instruct the Jury on “failure to mitigate damages”.  They do this in most every injury case.  They request that charge to the jury (instruction) because the duty of a plaintiff to mitigate his damages is codified at O.C.G.A. § 51-12-11, which states in part: “When a person is injured by the negligence of another, he must mitigate his damages as far as is practicable by the use of ordinary care and diligence.”  At a recent seminar, an insurance defense attorney advised attorneys to look for failure to follow physician’s instructions and failure to take steps to reduce pain and suffering.  And then, in closing argument, they will argue to the jury that “had the Plaintiff done what the doctor said, they would have likely gotten better, but the Plaintiff did not do that and now wants you, the jury, to pay them for not following their doctor’s advice. They failed to mitigate their damages and the Judge will charge you … blah blah blah”.    It is better not to be on the receiving end of that argument (whether it is true or not).   It is not so much that the argument can’t be defeated, but the issue is why would a claimant give than argument a leg to stand on in the first place.

And let me be very clear here: I am NOT talking about whether or not to have elective surgery.  Many people get a recommendation for surgery and do not have it for a variety of reasons: financial, time, not sure if really needed, etc.   That can be explained, but you may be called on to explain why you did not proceed with surgery and that is fine.   If you do not think you need it, then get a second opinion.   I see many people do that.   And I am NOT taking about a chiropractor who wants you to go treat 5 days a week for 5 weeks.  We all have our limitations.

Best practices: Communicate your fears and concerns to your healthcare providers, so that they can document them in your chart.  “My insurance only pays for 12 physical therapy visits a year and I can’t afford to pay after that”.    I have never heard of a doctor or therapist who refused to provide at home therapy instructions or program.   Usually that can be done in one visit.   But if they give you at home stuff – JUST DO IT.    Which sounds better here – “I did not do the at home exercises (what they told me to do and explained), because I did not think I needed them and I was just too busy”  – or – “Yes, I did the exercises like I was told, every day at 6 for a half hour when I got home from work” ?  (and hopefully someone else knows that or saw you do his).   Whose claim would you take more seriously if you were the one valuing it?  If you have done all you can do, or what is reasonable, and you still don’t get 100% better, that is much better claim to argue than one in which you did nothing, refused all advice and instruction, and yet are still asking for a lot of money for future pain and suffering.   An old adage I like is “God helps those who help themselves”.

BOTTOM LINE: You are in charge of your health.  If you are told to do something and you do not want to or can’t – talk to your healthcare providers, explain that, inform your lawyer.  Just do not do nothing, as that may come back against you.

Failure to make scheduled appointments with healthcare providers  – Let’s face it. Everyone is very busy. I get that.  Patients calling ahead of time and cancelling and re-scheduling appointments is something that physician’s offices experience most every day.  Follow the Golden Rule here.  If you had a half dozen well paid employees on your staff and you reserved 30 minutes for an appointment, for someone to come in to see you and your employees, and someone did not call and say they could not make it in, then I would expect for you to be upset.    It may be that you have so much business that you don’t really care about missed appointments, as you can spend time on other people, but it is the principle of the thing that I find annoys medical staff.  Likewise, although some offices do so, they should not have to call and remind you or to call and ask you why you are not there.  Be on time and if you can’t make it on time, then call and try to re-schedule asap.  How does missing an appointment hurt a claim, you might ask.   The answer is that it has the potential to hurt the claim in a number of ways.  First off, one day you may need to file a lawsuit and your lawyer may need to meet with the healthcare provider or to take their deposition for court purposes.    If the doctor opens the patient’s chart and sees “DNS”  (Did Not Show) on several appointments, they see that as lost time and potential revenue (which revenue pays all of the other employees).  When an insurance adjuster or insurance defense lawyers see missed appointments, they will argue that the patient was not hurt that bad or did not need treatment – or else they would have showed up for the scheduled appointments.

Which of the following two patient medical chart entries do you think would hurt or not hurt a claim?: “Patient called in and said they had a personal emergency and could not make tomorrow’s appointment. Humbly apologetic, stated in much pain still, re-scheduled to Monday at 0900”  OR “Patient DNS, tried calling patient at home, work and on cell, left messages, no call back”.   Once something goes in medical records – they are not permitted to take it out, so you are stuck with it (and so is your lawyer).  Finally, missed appointments can be seen (argued) as interfering with the normal recovery process. In other words, you would have recovered quicker, better, or more thoroughly, had you just gone to the doctor or done the therapy, as scheduled.

Running late or entirely missed appointments is a very big issue for physicians for many reasons.  “Most physicians and practice managers know that missed appointments are bad for business. How bad? Some experts say that these no-shows and late cancellations cost the American healthcare system more than $150 billion per year, and individual practices between $100 and over $1,000 per appointment, depending on specialty and location.” But, that is not the only bother for physicians and their staff: “Patients don’t get the care they need: “Some studies have indicated no-show rates in community practices ranging from 5 percent to 55 percent. These missed sessions disrupt continuity and compromise quality of care for the patients who miss the appointments and for those who “would have been scheduled in those appointment slots,” according to Family Medicine.” Also, “ Patient satisfaction takes a hit: It’s not just the cancellation or no-show who is negatively affected by a missed appointment — the health of other patients, not to mention their opinion of the practice, suffers too. That’s because every missed appointment could have been filled by another (potentially ill) person, increasing the length of time that patients have to wait to see the doctor.  Captain Kim Decker, chief of the Martin Army Community Hospital Healthcare Management Division at Fort Benning, Georgia, puts it succinctly: “An appointment missed by you is an appointment missed by two.” In other words, the person who misses an appointment is likely to need to re-book, and “whoever didn’t get an appointment initially is also still needing one.” (Source:  https://www.everseat.com/blog/missed-appointments-affect-more-than-just-revenue/)

BOTTOM LINE:  PUT YOURSELF IN THE SHOES OF THE HEALTHCARE PROVIDERS AND THEIR STAFF AND RESPECT THEIR TIME.  MISSED APPOINTMENTS CAN MAKE FOR LONGER WAIT TIMES FOR EVERYONE. AND IF YOU HAVE AN ISSUE THAT PREVENTS OR POSTPONES TREATMENT OR AN APPOINTMENT, BE SURE TO SHARE IT WITH YOUR HEALTHCARE PROVIDER AND TO EXPLAIN MATTERS.

Failure to timely do x, y, z (something)

We have all heard the saying “Time waits for no one”.   This is especially true with injury claims and cases.  I will simply provide a few examples here on instances when time is critical and failure to do something can adversely affect a claim. Of course, the big one is failure to file and serve a lawsuit in time.   Every cause of action in Georgia has a time limit.  We call it a statute of limitations (SOL).  Generally speaking, in most personal injury claims, a claimant has two years from the date of the incident within which to file and serve a lawsuit on any and all potential defendants.  (The rule can be much more complex than that and there are statutes of limitations for some injuries as short as a year and in some instances a pre-trial notice of claim or notice of suit is required, especially regarding governmental entities, so this is not legal advice and if you have a question regarding a particular claim or applicable statute of limitations, then you should consult an attorney.)   The short story is that if you miss an SOL, then you are SOL (sorry out of luck J).   If you miss the deadline, you will not pass go and will not collect $200.00.  In fact. You will not be able to collect anything at all.  Two years may seem like a long time, but in this world of what I call “twenty four minute days”, it is really not that long of a time.   If a person is injured and treated and has surgery and therapy, just that process can take 2 years or, in fact, many years.  Although I have had people walk in literally 5 days before a statute of limitations was to run out, and I was able to draft and file and serve a lawsuit in time, that is not a position that any lawyer ever wants to be in.  The stress is simply too great.  In a medical malpractice case, for example, you have to have expert witnesses to submit an affidavit, which must be field with the Complaint, (that there was, in fact, an act of malpractice) and the experts have to receive and review all of the medical records and maybe do some research in order to support their opinions, etc., so that can take up months, in and of itself, in addition to the time it takes to get the records, etc.

There are many other things that take time and, if not done or not done quickly, it can hurt the case.   Taking pictures of the scene (which can change quickly) or of the object or condition causing injury is also something that is preferably done very quickly.   One of the defense’s favorite things to argue is when a claimant has waited to go to a doctor or hospital.   The argument is “if you were really hurt, you would have gone to see a doctor sooner” or “ you went to doctor two weeks later, but you could have gone to the emergency room.   Many people will wait a few days, a few weeks, a few months, but the point here is that wait time does not help the claim AT ALL.   This is a fairly effective defense argument, because if a person really is in tremendous pain – then they will do most anything in order to ease or stop it, is the belief that many people hold.  One area where time is really a factor is in tractor trailer crashes or even in car wrecks.  If suitable for a particular claim or case, many times I will send out a letter to the defendant and insurer asking for them to preserve evidence so that I can have it tested or photographed later on.   Most newer vehicles now have an electronic data recorder. If the case warrants it, I must hire an accident reconstructionist to download and interpret this computer data.  That is not possible if the data was erased or if the vehicle has been sold for scrap or destroyed.   And in premises liability cases it is very important too.  I have seen items of permanent construction changed in as little as a matter of hours.   Because of evidentiary rules, most times that evidence of change is inadmissible (can’t be used), because it is what we refer to as a subsequent remedial measure.  In other words, the law does not let us use evidence of repair, etc., because the public policy is to promote safer behavior and repairs.

There are exceptions to this evidentiary rule, but I had FAR rather have photographs and documentation of the condition as it existed at the time of injury or as close thereto as possible.   In one case I recall, an elderly lady was severely injured by a dangerous condition in a Wal-Mart parking lot.   Her husband went to the scene after the emergency room. While his wife awaited surgery, which was to take place in the next day or two, he went back to the scene and photographed and shot some videos of the THEN EXISTING dangerous condition.  Just those few seconds of video that he shot with his cell phone was a major difference in the case and ultimately helped us to collect on the claim.   If there is some dispute in a traffic wreck, photographs of the scene, while the cars and debris, skid marks, etc., are still there, can make a huge difference as well.   Many times the names of eye witnesses are not on a crash report.  Taking a picture of a license plate or taking the time to get or provide a phone number can also help.

BOTTOM LINE:  Even though an injured claimant may have whole lot more going on in their lives than they normally would have had at the time, timely investigation and action can make much positive difference in the claim.

UNTIL NEXT TIME, I WISH YOU ALL PEACE, SAFETY, HEALTH, HARMONY, AND LOVE FOR ONE ANOTHER.

 

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