Mistakes People Make Handling Their Own Cases, Part 2

Pam: So, one of the things I hadn't thought about, as being a potential mistake, is failing to promptly seek medical care. How can that be a mistake?

Barry: In real life, people don't go running to the emergency room every time something bad happens to them. Sometimes, they wait a day, or two days, or three days before they go to see a doctor. The problem is, is that the more time that passes in between when an accident occurs, and when you actually go get medical care... it creates a space for skeptics to doubt that the accident actually caused your injuries. Insurance companies and juries, sadly, are full of these kind of skeptics.

If you wait a week after an accident's occurred, and you've hurt your low back, to finally go see a doctor... jurors and insurance adjusters are going to be looking at that one week thinking "How do we know that he didn't hurt his back gardening, or lifting up dog food, or doing any number of other things that can cause you to have lower back problems?"

So, promptly getting medical care cuts down on that space for doubt to be created as to the causal relationship between the accident, and the medical problems that you're talking to the doctor about.

Pam: Now, one thing that really amazed me, is what can happen when you don't accurately describe your accident to your doctor.

Barry: As part of the investigation process, insurance companies are allowed to get access to your medical records, to determine whether or not what you're claiming is caused by the accident. One of the things that they look at, very closely, is the history.

When you come into a doctor's office to be treated for a very specific complaint after an accident, one of the things the doctor's going to do is take a history. What a history is, is basically asking the question "How did your problem start?" The doctor's gonna write that down. The insurance adjuster, and the defense lawyer, is gonna look at these things very, very closely to see what you told your doctor about how this all began. It's something that can work to your benefit, or something to your detriment.

I had a case I worked on a few years back, with a lady who slipped in water at a restaurant. When she gave her deposition, she was very iffy about what exactly it was that caused her to fall; but she was very clear the night that she fell and went into the emergency room, that she slipped on water. That was a good piece of evidence for us when we had to try her case, that helped us show that this was in fact what caused her fall, and we were actually able to win that case.

On the flip side, if the history that the doctor takes is kind of crazy and doesn't make a lot of sense, it can create a lot of doubt and can actually lead you down the path to a "not guilty" verdict. I tried a case a few years back, with a gentleman who was a HVAC installer. He installed duct-work for heating and air-conditioning systems. He was looking up in the ceiling at some duct-work. He put his hand on the ceiling joist that wasn't nailed down, and it rolled and he lost his balance. He fell off the ladder, and broke his ankle.

What his doctor wrote down, when he went to the emergency room, was that he hurt himself jumping off a wall. It wasn't what happened at all. There was a room full of witnesses to this gentlemen falling off the ladder; but that was what the jury hung their hat on when we tried the case, and we ended up losing that. That was really the centerpiece of the whole defense to the case... was this crazy history that was taken in the emergency room.

So, one of the things that I tell clients, is you wanna be very, very careful to describe accurately what happened in terms of the starting point for the reason that you're in the doctor's office. These are things that get looked at very, very closely by defense lawyers, and insurance adjusters.

Pam: I was also surprised at whether you follow your doctor's advice, can play into a personal injury case.

Barry: At the heart of every personal injury case, is the claim that there was something that happened during the accident that had some detrimental effect on your well-being, and that you needed medical care. Ultimately, the causal connection between the accident and whatever injury you're claiming, has to be established by medical testimony, which is ultimately going to come from your doctor.

If your doctor's making recommendations to you, two things happen. The first is, is that if you're not following your doctor's recommendations, it kind of begs the question of "How badly hurt are you?" If your doctor tells you to go to physical therapy, and you don't go to physical therapy, people are going to be thinking to themselves "Well, it couldn't have been that bad, because they didn't wanna take the steps that were needed to get better."

The other thing that happens is that doctors, believe it or not, are human too. They like to have people who follow their advice, and follow their recommendations. Sometimes, it gets to be very difficult for a doctor to be a really strong advocate on your behalf, if he's making recommendations to you that you're not following.

This is an especially acute problem, that happens when the insurance company hires a medical expert on the other end; who very strongly says that your problems weren't that bad, that your problems weren't caused by the accident. You have a doctor who is not terribly, terribly supportive. It really gives a jury a peg to hang their hat on, to either give you a "not guilty" verdict, or a very minimal award.

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