Hurting Your Injury Claim: 4 Common Mistakes

WHITEBOARD WEDNESDAY (June 7, 2017): There is nothing more frustrating to someone that has been injured in an accident than destroying the value of their own injury claim. In this week’s Whiteboard Wednesday, Matt highlights the 4 most common mistakes we see people make with their personal injury claims…

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Video Transcription

Hi everybody, Matt Quinlan here. Welcome to this week’s edition of #WhiteboardWednesday where we tackle real-life issues that our clients face and we answer questions that we get from people that call our office. This week we’re gonna be talking about four common mistakes that we see people make that really hurts the value of their case. These are mistakes that our clients have made that we’re always trying to overcome, and they’re also mistakes that people have made when they come into our office to see if we’re fit for representation.

(1) Working With The Insurance Company

So here are the four main things that we see. First is working with the insurance company before hiring a lawyer or speaking to a lawyer. Insurance companies make and save a lot of money by getting people who are injured to feel like they don’t need a lawyer. They save a lot of money, because people that are injured presumably aren’t attorneys and don’t have any experience in dealing with injury claims, and they have no idea what they’re worth. They make lots of mistakes along the way, and they ultimately end up accepting far less than their case is worth.

So insurance agents are a particular breed. I work with them. You know, once I get involved, and I find them all to be very nice. But I also understand that, just as a business matter, you know, they’re trying to save their company money, and they can do that when somebody is not represented and doesn’t know any better. So they’re experts at handling these injury claims, because they do them, you know, by the dozen, and then the person that’s been injured, that’s working with them, of course, has probably never done one before and is of novice, right? So the insurance agent can’t help but be in an, you know, advantageous position, and they take advantage of it, and that’s kind of part of the game. They do it with a smile. They do it in a way that makes you feel as though they’re doing you a favor almost, but the fact of the matter is they’re taking advantage of you. And so you really don’t wanna be working with the insurance company before you at least talk with a personal injury lawyer and get some information.

One of the main things that they try to get you to do is give them a statement. They’d prefer if it was recorded. In California, you have to have permission to record somebody’s conversation and then use it later as evidence. So you’ll find that they’ll ask you for a statement. They’ll make it seem as just a matter, of course, that one gives a statement when they bring an injury claim and then they’ll record it. And they’ll ask you a million questions. They’ll get you to describe your injuries, talk about the problems that you’re having. You don’t really, you know, know how to answer the question. Should you try to overstate your injuries? Should you understate them? Should you try to be reasonable? Should you try to be difficult? You don’t really know how to deal with it. So oftentimes things you say in these statements, and they’re coming back to haunt you, and there are things that your lawyer may ultimately have to try to overcome, if it’s possible. But, you know, like I said, if you’ve given them permission to record and you’ve given them a statement saying that, you know, you’re feeling pretty well two weeks after the accident, and then three months later, once you got a lawyer, you’re claiming that you’re not doing so well, of course, you can imagine that they’re gonna look at you and say, “Really? That’s interesting. Two weeks after the accident you’re fine, and then suddenly now you’re not doing so well.” And you’ll say, “Well, I didn’t really realize what was going on,” or, “It started flaring up later,” or, “I didn’t think I had to include every little bit of information about my injuries.” Whatever your excuse might be, it’s not gonna look good.

So statements, they’re probably the worst things. You wanna avoid these at all cost. Don’t give them the statement. We don’t allow our clients to give recorded statements ever. If you wanna talk to our clients, you gotta do in a deposition. Occasionally we’ll let an insurance adjuster, if it makes sense, talk to our client with us on the phone in an unrecorded setting. So, you know, be really careful about this.

The other thing that insurance companies do is they want you to sign a medical release, a HIPAA-compliant release that gives them access to all of your medical records. So we also never allow our clients to sign these, but we control the flow of information, medical information, between us and the insurance company. We never allow them carte blanche to get all of your medical records, you know, related to anything under the son, because their goal is to diminish and minimize the value of your injury, not to, you know, increase it. That’s for sure, that’s our goal. So we control the flow of this information to the insurance companies. We never give them a HIPAA-compliant medical release. Instead, our clients give us a HIPAA-compliant medical release. We order it all. We review it all, you know, process it ourselves or hire some nurse consultant to help us with the process if they’re particularly complicated, and then we provide them with the information as we see fit. So, also, something else you really don’t wanna be signing with them, a medical release.


(2) Avoiding Medical Treatment

The second problem that we see people making that ultimately ends up harming the value of their injury claim is avoiding medical treatment. So there’s lots of reasons why somebody would want to, you know, not follow up with their doctor, not attend a physical therapy session, not push on that MRI. It’s because they’re scared. And I don’t like going to the doctor or the dentist. I don’t wanna necessarily go in there and get poked and plotted and find out something that’s gonna scare me and scare my family. So I get it. I understand why you don’t wanna necessarily see it all the way through and take the initiative on getting all the medical care, but it’s really important of your personal injury case, because, you know, you need to create these medical records. You need to create this proof of what you went through. It’s tough to remember. Looking back, there will be doubters down the road about whether or not you really were experiencing these problems, and if they’re in your medical records and you’re telling them to a doctor or some kind of healthcare professional, they seem more legitimate. So they’re really, really important that you continue to see, you know, all the doctors that you’ve been prescribed. If there is some regimen that you’re on, follow through with it. If you’re doubting that maybe you’ve gotten all the care you need, push the issue. If you think you need that MRI, you gotta push the issue, and so this is really important. Obviously, the expense of it sometimes factors in, and I get that really though, you know, it’s gonna be a drop in the bucket compared to the kind of harm it can do to your personal injury case.

So, you know, set up a payment plan. Talk to your car insurance if the accident was related to a car accident.  See if you have Med-Pay, which will pay your medical bills. Submit it to your health insurance. Stall. Talk to your lawyers about potentially setting up a lien. There’s a lot of different things you can do in lieu of avoiding medical care. So all those things are a lot better. So make sure you get the care that you need. And, like I mentioned earlier, it’s about these records. It’s about creating the connection. It’s about documenting your symptoms, and without them, the medical records, it can get pretty tough.

This also causes me to consider the idea of overtreating. Sometimes people overtreat. They think that the more medical care I get, the more valuable my case is gonna be. They outsmart themselves, and they try to build their case artificially, and so they get all this care and all this treatment. Or they go to the chiropractor for, you know, some inordinate amount of time, and ultimately those things sometimes aren’t covered in part of a personal injury case and settlement, and you end up getting stuck with the medical bills. So just do what’s reasonable. Do what your doctors encourage you to do. Listen to your lawyers potentially about, you know, the amount of care you need, and listen to yourself and be honest with yourself about what it is you think you need. You can’t go wrong doing that.


(3) Failing To Report

The third issue here is failing to report an accident or an incident. We see this all the time. The human nature is, “No, I’m fine,” especially men, “I’m fine, no. I will be fine. Everything is fine. Just rub some dirt on it, and I’ll be out here.” And ultimately what you end up doing is harming the value of your case, potentially completely ruining it, because the evidence is gone. The video is gone. There is no report of the particular incident. And nobody seems to know what you’re talking about when three weeks later you show up with a lawyer talking about this accident that you had, but you can’t find any reports about it and you can’t find any witnesses that can verify what happened and ends up being your word against, you know, the world, and those can be really, really tough cases. As a plaintiff, it’s your burden to prove that the accident happened, that the accident was the fault of the third party, that the injury from the accident related, you know, to the particular incident. So you have to do these things.

And so if it’s just a big toss it up as to whether or not the accident even happened, you can see you run into a lot of problems trying to prove your case. So you definitely want to go ahead and report these things. Get the incident report that involves the business. Call the police. If they won’t come out, you can still go in the next day and create a record of what happened. So this can be really, really important. You know, like I mentioned, the witness, the evidence is gone. You know, sometimes there are surveillance cameras, these films will rewrite themselves, you know, sometimes every three days, sometimes every couple of weeks. Stuff’s gone. If you don’t make a claim for it, you can’t prove it.


(4) Hiding History or Information

And then, lastly, the most common mistake that we see people make that affects their personal injury claim in a negative way is hiding history or information. And so, you know, people want to…they feel this need to attribute all the problems that they have related to their health to a particular accident. And I understand that, I guess. But, you know, the proof is always in the pudding, and it’s gonna come out. It’s gonna be in your records. There’s gonna be a history of the problems. You know, if I have a 55-year-old person come in my office and tell me they’ve never had a problem with their back before, I mean, “Really? You never saw anybody about your back in all those years?” So, I mean, it’s little things like that. “You know, no, I’ve had a perfectly great knee. I’ve never had any problems at all with my knee,” you tell me. And then, you know, we take on your case, and we’re working it up through the process, and sure enough up in the records comes, you know, a time three years ago when you got an MRI on your knee or something like that. So you’ve gotta tell your lawyer everything that’s going on. I can work with information. I can’t work with information I don’t have. I mean, so I really need, you know, the clients to tell me everything and not try to outsmart themselves, not try to play lawyer. Let me be the one that controls the information. If something needs a slam, if there needs to be some strategy involved with how we present things, let me do that. That’s my job. This is what I’m good at. This is my area of expertise. So I need you to trust me on that, and I really don’t want you to try to control or affect the flow of information, not with me.

We have attorney-client privilege. You know, everything we talk about is private. So you gotta be honest with me and let me work. The same thing goes with criminal history. You know, a lot of people don’t like taking on clients that have got passed on this and neither do I in particular. But occasionally I’ll still do it, as long as I know about it. I gotta know, you know, what happened, and sometimes we can get those things expunged, and there are different kind of avenues that we can take to still pursue your personal injury claim despite the fact that you have a history, but you can’t hide it. So go ahead and fess up to some of this stuff. A pre-existing condition, if you had a sensitive, a neck, let’s say, or you have brittle bone disease or osteoporosis, something like that, right, and then you find yourself in an accident where you’re injured, you maybe insecure and say, “Well, it was just a tap, and I ended up getting a serious injury.” But that’s not how it works in California. It’s called eggshell plaintiff here, which means it doesn’t matter if you’re particularly vulnerable to an injury, if the incident caused your injury, no matter how minor it might have been, and it doesn’t matter if an average person wouldn’t have suffered it also, you’re entitled to claim it, and it’s also related. So if you have a pre-existing condition, don’t be insecure about it. Tell us about it. Don’t sort of withhold information. Certainly don’t lie to us about it. We’ll find it in the records. Your doctors are gonna know about it. People that they take the depositions are related to, you know, you and your case are probably gonna know about it, and you’re gonna be testifying under oath. That’s a point. So, anyway, this is the type of thing that can get you in trouble if you’re trying to outsmart yourself.

So these are the four most common mistakes we see that negatively affects somebody’s personal injury claim. I’m happy to, you know, answer any questions you have about these four particular issues or anything else related to personal injury matters. I hope you learned something. I appreciate you watching, and I’ll see you again next week on Whiteboard Wednesday.