Today I had the pleasure of meeting with a wonderful new client. A vehicle had crossed the center median and smashed into her car. She wanted to learn more about the personal injury process and what her options were.
I was explaining the personal injury process to her and stressing the importance of excellent documentation in her medical records. We spent a good part of our conversation talking about documenting the actual injuries from the accident.
FIRST YOU MUST MAKE AN EXHAUSTIVE AND DETAILED LIST OF YOUR INJURIES.
I asked her to start from the top of her head and move her way down her body. She mentioned the fact that she was having severe headaches, she had a nosebleed at the accident scene (along with nasal pain), pain in the right shoulder radiating into the right arm, pain in her upper back, pain in the right side of her mid back, and a bruise to her right knee. She had been to a doctor since the accident. I asked her if she had told any of these things to her doctor. She said she only told the doctor about the neck pain! I explained she would not be getting any points for anything that she failed to mention. You see, insurance adjusters are going to read your medical records with a magnifying glass, and they will only consider what’s in there. If you forget to mention something, that injury does not exist as far as the insurance company is concerned.
I encouraged her to make a list of all her injuries (no matter how minor) on a sheet of paper and the next time she went to the doctor, she was to make sure that those injuries were mentioned in her records. She wasn't lying or fabricating injuries. Clients need to recount ALL their injuries, not just the "main" ones. Wouldn't you want the insurance adjuster to know about ALL the injuries you had and not just some of them? Remember, the insurance adjuster's job is to minimize your case. If you fail to mention all injuries, then you are basically doing their job for them!
SECOND YOU MUST KEEP A LIST OF HOW THE ACCIDENT IS AFFECTING YOUR LIFE
Another exercise we did during our meeting was make a list of all the "effects" of the injury on her life.
To some extent, the value of your injury claim will be based on the following formula:
Severity of Injuries + Effects of Injuries = Value of Claim
She told me she had trouble bathing, trouble putting on her clothes, trouble concentrating at school, She literally was avoiding driving anywhere near the scene of the accident because it brought back so many bad memories. Of course, she had not mentioned any of these things to her doctor. Again, I stressed the importance of mentioning those things and making sure they are part of her medical record. Every time you get medical care after an accident, at every appointment, imagine the insurance adjuster standing in the room with you. I always tell clients to ask themselves the following, “What would I want the insurance adjuster to know about my accident?“ Whatever your answer is, you need to make sure that you articulate those things to your treating providers, physical therapists, etc.
Don't keep your injuries a secret! Don't keep the effects of the injuries a secret. This is not the time to be stoic. This is not the time to "tough it out." This is the time for documentation! Always ask yourself, "What would I want the insurance adjuster to know?" Then TELL YOUR DOCTOR about it so it actually ends up documented in your records.
When it comes to personal injury cases, your own medical history may come back to haunt you! What do I mean by that? Here are a few examples from some cases I recently handled:
I recently had a client who had a shoulder injury from a car accident. She eventually had surgery. Certainly, she had a significant injury since surgery was required. Everything in her medical records suggested injury from the car accident. For example, she complained at the accident scene of shoulder pain (as noted in the police report). At the hospital, she complained of pain to her shoulder. She endured painful cortisone injections to the shoulder which is something people generally won’t do unless they are having tremendous pain. Then she had the surgery and did weeks of rehabilitation. Again, people generally don’t do that unless they are truly injured.
Unfortunately, after reviewing this client's medical records over the last five years, we found that seven months prior to the accident, she had complained of shoulder pain in the exact same shoulder! In fact, the medical records indicated she had been having shoulder pain for six months prior! Of course, if you have surgery after an accident, the insurance company is going to want to see your medical records from the past. Generally, they want to see 5 to 10 years of medical records. Why do they want to see your prior records? Well, because many people try to blame pre-existing conditions on a car accident. In this particular case, my client had forgotten she had made that prior complaint. The truth is, the prior shoulder complaint may have been linked to a gastrointestinal problem that was causing "referred" pain. However, the notation was there, and you can bet the insurance company used it against her. They argued her shoulder pain probably pre-dated the accident and therefore, they should not be held responsible for it.
I had another client recently who was complaining of neck and back pain post accident. Eventually, after physical therapy failed, she had several cortisone shots to her neck and back. She assured me she had never had this type of pain before. Of course, I had to research her prior medical records because I wanted to make sure I was familiar with her past care so there would be no surprises.
Lo and behold, we found that two months prior to the accident, she had complained of the exact same problems to her neck and her back. In fact, the medical records indicated her prior neck and back pain were "chronic" and have been going on for well over three months (with radiating pain to her upper and lower extremities). That is not to say the client wasn't injured in the auto accident. I’m only raising these issues because we cannot ignore the historical medical records and how they might be used against us. A jury, a judge, or an insurance company is not going to like this kind of thing. The client was upset. However, I explained to her that her prior similar complaints found only 2 months prior to the accident could sink her entire case. She could then be on the hook for all our costs and all the defense costs.
Most people are already suspicious of personal injury accidents, and many people think accident victims are just trying to make a buck. The fewer uphill battles we have, the better. Pre-existing conditions that are denied (or sometimes forgotten, conveniently or otherwise) can destroy an entire car accident case.
Another client recently came to my office and explained he had smashed his knee into the dashboard as the result of a head on collision. Of course, this is a significant injury, and he told me he might need surgery. However, having worked for an insurance company myself, I asked him about his past medical care. He explained he did have prior complaints to the same knee. In fact, a few months before the accident, a doctor had recommended an MRI to the same knee. I explained that before I could take his case, and before he could make any significant decisions about whether or not he wanted to proceed with a car accident claim, the best thing we could do is obtain his prior medical records and study them carefully. After all, the insurance company is going to be pouring over them. It stands to reason that we should also be looking through them and learning what lurks in those records.
Here is the moral of the story: If you’re going to complain of any significant injury after an accident, and if you have similar issues in your medical past, they will certainly come back to haunt you. The insurance company will simply argue that your injuries pre-date the car accident and that you are simply trying to blame the car accident for all your previous problems.
If you have a previous problem, be candid about it and forthright. It could be that the car accident aggravated your previous problem or exacerbated an otherwise dormant injury. Then it becomes an issue of what kind of aggravation it was and whether or not you have a residual problem. Of course, sometimes it is difficult to ascertain whether or not you would have had the same problem even without a car accident (insurance companies always make that argument).
Ignoring your medical history or assuming no one is going to look at it, is one of the biggest mistakes I see clients make. If you have a significant medical history, it would be a great idea for you to obtain your own medical records so that you can review them before the insurance company does. That will help you outline your strategy and handling your personal injury case. Also, don't hide your medical history from your attorney. That doesn't do anyone any good! If you are not willing to confront your medical past, then perhaps you shouldn't be making a personal injury claim.
After a serious accident, many people feel that they can heal on their own, or that the injuries suffered from the car accident are not that serious. In many cases, they are correct. In many cases, they are flat out wrong. Then when they try to pursue their claim, their inaction is used against them by the responsible party's insurance company. Insurance companies don't want you to seek care, so they can use that against you in the future.
When you are involved in an automobile accident you need to seek medical attention right away. Don't "wait and see." It will only harm your position. Many times when the insurance companies and juries don’t see proof of your injuries resulting from the accident, they often believe you do not deserve compensation. Therefore, if you don't seek medical assistance, they will assume you are fine.
Insurance companies hate it when you’re hurt in the accident and immediately go to the hospital to see a doctor. Why? Well it’s simple - it’s harder for them to argue that you were not hurt in the accident if your actions were consistent with someone who was hurt. Therefore, make sure you’re telling your treating doctor of all injuries, whether big or small, and do so sooner than later. Injuries could gradually get worse because they have not been properly treated, and it may be too late.
Call our office at (661) 414-7100 and be proactive about your personal injury case.
If you are injured after an accident, you should call for an ambulance or at the very least, seek medical assistance as soon as possible. In general, the insurance companies don’t want you to call for an ambulance. They also don't want you to go to the hospital.
The reason they don’t want you to call an ambulance is because it affects their ability to argue that you were not hurt. Insurance companies work very hard to minimize your injury claims. It’s hard for them to argue that you were not hurt if you were taken away by ambulance from the scene. As a general rule, ambulance personnel are not going to waste their time. They’re going to take you by ambulance if it is warranted, if there are serious complaints of pain, and if there are serious concerns at the scene – that’s when they take you by ambulance.
Also, if you go to the hospital immediately after an accident (or at the very least seek medical attention in some way VERY SOON after the accident), it’s further evidence that you were injured, so the insurance companies don’t like to see this because they can’t use it against you in the future. It just makes it harder for them to argue you were NOT injured since you were proactive about your injuries.
If you've suffered in a serious car accident in the Santa Clarita area, please consider calling our office at (661) 414-7100 for a free consultation.
Whenever I get a new personal injury client, I always remind them to keep all their doctor's appointments and to fully complete their medical treatment. In my experience, many clients simply stop going to the doctor after a while because life gets in the way. In other words, they are too busy, work is too hectic, or they have too many other obligations. They simply stop going to the doctor and they are never formally discharged from care. Sometimes, they stop going to physical therapy for the same reasons.
I totally understand that life is complicated and scheduling doctor's appointments can be very difficult. However, if you stop going to the doctor, juries and insurance adjusters will assume you stopped going because you must be healed from your injuries. If you have an injury, you should seek medical treatment until you are healed and/or until a doctor formally discharges you from his/her care. Also, if your doctor suggests you return if you still have pain, ask the doctor how long you should wait before coming back to see them if the pain doesn't go away or resurfaces. That way, when you return for care, you are truly following the doctor's instructions and recommendations.
Always remember, insurance companies don't care how busy you are. They don't care how hard it is to find time to go to the doctor. You don't get reimbursed for how hectic your life is or has become after an auto accident. The insurance companies are looking for reasons not to pay your claim. If they see you simply stopped going to the doctor on your own volition, that will be used against you. They will assume the reason you stopped is because you were healed.
If you need help with your personal injury case, call Robert Mansour at (661) 414-7100. Robert serves Santa Clarita and its communities of Valencia, Saugus, Canyon Country, Castaic, Newhall, Stevenson Ranch and surrounding areas.
Sometimes, the insurance adjuster for the other party will call you and insist on meeting with you. They say something like, "Perhap we can settle this case over coffee?" So the prospective client calls me and says, "How much should I ask for? The accident happened three days ago and the adjuster is making me an offer."
I explain politely that the insurance adjuster simply wants to close his/her file. Accepting an offer so early after an accident is not a prudent course of action. Generally speaking, it's too early to settle the case because you have no idea what injuries you might have, what injuries might manifest themselves a week later, etc. Also, if you are truly injured, you should not entertain settlement so early for many other reasons.
Sometimes my clients call me while they are still treating for their injuries and wonder, "Hey, when are we going to settle this case?" I explain that we can't settle the case until they are done with their treatment. First of all, only then will we have all the bills and records to present to the insurance company. Also, we need to make sure the client has fully healed. If they haven't fully healed, we need to assess their residual injury and what their future might hold. Will they be in pain for the foreseeable future? Will they need surgery?
In other words, you need to wait until the case is "ripe" before you entertain settling the case. Rarely is settling the case very early a good idea. I understand the temptation is often there to settle early, but it's usually better to wait and fully appreciate what your injuries are, the extent of your injuries, and whether or not you will fuly heal from those injuries or not. Don't fall prey to the insurance adjusters pressuring you to settle. Talk to a lawyer about your case or seek representation and guidance from an experienced personal injury attorney.
When I was a defense lawyer for a major insurance company, one of the first things we looked for when defending personal injury claims was "gaps" in treatment. That means, we would look at every single date of treatment and try to find "gaps" of 10 days or more. Sometimes, we'd see gaps of 2 weeks or much more. We would use those against the person making the claim. Also, we would look to see when treatment commenced after an accident. We would sink our teeth into delays of over 10 or more days. Why do insurance companies use gaps in treatment and delay in commencement in treatment against you? Because they want to minimize your case. They will argue, "Well, if you were REALLY hurt, you wouldn't have waited 2 weeks to get treatment." Or they might say, "Well, if you were in any REAL pain, you would have treated more regularly without missing appointments etc."
The insurance companies will do anything they can to minimize your claim. My clients are often surprised by this tactic. My clients will say, "Well, I couldn't get in to see the doctor for a long time" or "I couldn't get a physical therapy appointment for a month..." The excuses are legitimate and understandable, but that doesn't mean insurance companies will be easy on you or "understanding." They simply don't care. They will use it against you because at the end of the day, they aren't really interested in compensating you. They are interested in minimizing their losses. Therefore, the lesson here is to commence treatment as soon as possible after an accident, even if you only suspect an injury. You don't want to take chances. Also, once you start treatment, be diligent about your health care and follow up visits. In all fairness, there are some insurance adjusters who do understand there are sometimes legitimate reasons for delays in treatment, but most of them won't see the big picture.
I am currently handling a very interesting case dealing with a hip replacement surgery. My client was involved in a moderate three car accident. His knee jammed into the dashboard which caused the ball of the hip bone to ram into the hip socket.
As the weeks and months passed by after the accident, my client noticed his hip was getting worse and worse. Soon, he was issued a handicap placard for his vehicle and was walking with the assistance of a cane. None of his doctors could figure out what was going on, and he unfortunately endured multiple pain injections, none of which helped him in the long term. It was extraordinarily frustrating for him. He couldn’t even walk with his family without stopping frequently to sit down. It was very painful.
Finally, an orthopedic surgeon took another x-ray and found that his ball and socket were basically bone-on-bone at this point. The doctor explained that when the ball was forced against the socket during the accident, the cartilage was compromised. As a result, the cartilage was obliterated over time, leading to the bone-on-bone condition that was causing the client so much pain. As a result of the car accident, he ended up needing full hip replacement surgery.
If you’ve been involved in a car accident, it is entirely possible that you can get a neck fracture if the forces are sufficient. In some cases, if you have a pre-existing problem with your neck, you might be more susceptible to injury. Also, your age may be a factor. Finally, the mechanism of injury is important (i.e., what kind of forces were exerted on the cervical spine). Sometimes, the fracture can be minor (sometimes called a hairline fracture that will usually heal over time).
Studies have shown that people can get neck injuries even in low speed impacts. That being said, juries (and insurance adjusters) have a hard time believing that low speed impacts can cause neck fractures. Truth be told, you generally need to have significant property damage to convince most people the impact caused a fracture. If an x-ray or MRI film shows a definite fracture, that can go a long way to convincing an adjuster or jury. However, it also helps if you have previous x-ray or MRI showing no evidence of fracture.
Absent previous films, if your medical records are devoid of any previous neck complaints, that also might help convince an adjuster or jury of your fracture. Finally, if you go through your regular medical doctors (rather than attorney referred doctors), that might also help your case.
While you can certainly have a disc injury (cervical disc, lumbar disc) from a car accident, the insurance company will question if there was a “mechanism” for injury. For example, lumbar disc injury is rare from a low speed rear-end impact because there isn’t much movement to the lower back from such an accident. Contrast that to a neck injury – the neck is more likely to move backward then forward in a rear end accident. Side impacts or impacts that cause a twisting motion can cause back injuries as well.
Proving a herniation to a disc is difficult because you might have a pre-existing disc problem. Most people start to have trouble in their discs as they get older. The insurance company will argue that your troubles are related to degenerative changes that pre-date the injury. To learn more about herniated discs and car accidents, see the library entry on car accidents and disc injuries.
by Robert Mansour
Robert Mansour is a personal injury lawyer serving Santa Clarita, Valencia, Saugus, Canyon Country, Newhall, Stevenson Ranch, Castaic and surrounding communities.