Earlier this week, I wrote the first of a three part blog on “Excuses Used By Adjusters” to low-ball an auto accident injury claim. That first article focused on auto insurance adjusters who hyper-focus on the frequently irrelevant “preexisting degeneration” found in MRIs and X-Rays. That blog can be found by clicking on this link.
Today, I am going to address another frequent reason automobile insurance adjuster’s give for low-balling an injury claim: “Lapses in Medical Treatment.” (Note: This blog is not about a client who misses multiple medical appointments and is non-compliant. Rather, it addresses lapses in medical treatment for other reasons) I do not begrudge an adjuster who takes lapses of treatment into consideration while evaluating an auto accident claim. However, many times far too much weight is placed on this issue. Furthermore, in some circumstances, a lapse in medical treatment can be argued as a strong point of a client’s case. I’ll cover a couple of scenarios.
Scenario 1 – A long lapse of time between auto accident and first date of treatment:
I have met with clients whom have had no medical treatment after a full year has past since the date of the car accident! There is no getting around that this can be a huge problem for the claim, and can also lead to first party insurance defenses. (Note: In some jurisdictions, it would bar a claim. Florida has a 4 year statute of limitations on auto accident claims). It also makes it potentially difficult to prove causation, because so many intervening events could have occurred between the date of accident and first treatment. Still, I have agreed to handle select cases when there has been no treatment for 8 – 12 months, but only when I believe the client will make a great witness.
I argue for my client by pointing out that, if anything, the lapse of treatment proves that my client is NOT litigious, and is guilty of only one thing: Optimism. While most people would likely seek medical treatment a couple of weeks after the accident if still experiencing pain (at the latest), everyone is different. Some people are just “old school,” and believe that they should grin and bear it. Others believe that surely they just got “jostled around” and will eventually get better, and wait far too long to seek treatment. Frankly, others have a very bad impression of lawyers and injury claims, and do everything mentally possible to not need an attorney. Finally, others may have been checked out at the ER after the accident, were told that there is “nothing major” and that they should be fine in a few days, and took this as gospel. (NOTE: An ER is only looking for acute injuries that require immediate treatment, such as fractures, head trauma, abdominal injuries, etc. They are generally not concerned with other conditions that can result in chronic pain).
Admittedly, the longer a client waits to treat following an accident, the more difficult the case. Still, if you have a credible client, it does not matter what the adjuster thinks of the lapse in treatment. If the insurance company undervalues the claim, then it only matters what the jury thinks.
Scenario 2 – Client treats promptly after accident, but has lengthy lapses in treatment during claim
Sometimes a client will seek regular treatment at the start of a case, but then go 2 months or longer during the case without treatment. An adjuster will nearly always bring this up. The amount of damage this can do to a personal injury case depends a lot on the circumstances. If the client is flat out non-compliant early in the case, then as his or her attorney I am going to be getting her into my office to find out what is going on. I am not going to direct medical treatment, however, I am going to be sure to let the client know the impact this will have on the claim. However, there are many times when long lapses can be reasonably explained to a jury, such as in the following examples:
*Lapses Post Maximum Medical Improvement (MMI). Following MMI, a client will likely need some palliative care. For some clients, medical treatment has just not helped. The client has a chronic pain condition that does not respond to injections, physical therapy, chiropractic treatment, etc. The client sees no need to continue treating, if it is not going to help.
*Lapses after a claim is denied, or negotiations have reached an impasse. If an insurance adjuster argues that a lapse in medical treatment supposedly demonstrates that a client is not injured, many times it can be shown that the lapse of treatment is the fault of the insurance company in the first place. The insurance company has placed the client in a tough situation by failing to offer sufficient money to cover the claim, and there will be no guarantees to the client at trial that her losses will be recovered. Rather than accumulate tens of thousands of additional medical bills, the client stops treatment out of fear of being forced into bankruptcy. This can be an especially important point in an uninsured – underinsured motorist claim, when the insurance company happily took the clients premium dollars for years, and now is making it’s own insured suffer miserably by wrongfully denying a valid claim.
If a client’s lapse in medical treatment is causing problems in obtaining a desirable settlement, the following valid points can frequently be made on behalf of an injured auto accident victim:
1) The client is not litigious, and his actions demonstrate that if anything, his only goal was to get better and avoid a claim.
2) The fact that the client stopped treating only demonstrates that she is not going treat just to build her case, and generate higher damages. Treatment has not helped, and pain is something that she has to live with on a daily basis. She would gladly seek treatment if it would bring relief.
4) The lapses in treatment are directly attributable to the insurance company’s bad faith in handling the claim. The client must self-treat (e.g. PT at home) out of fear of financial doom.