Medical malpractice occurs when a healthcare professional fails to provide treatment that meets a standard of care expected in the medical community. This can include errors in a diagnosis, a treatment, or the management of a patient's medical condition. Medical malpractice can occur anywhere that patients are treated, including hospitals, clinics, and private practices. What […]
Personal Injury Case Value
“What is the value of my case?” Eventually, during every initial meeting following a car accident this question is raised by the prospective client. You can’t turn on the television or click on the website of a personal injury lawyer without someone saying they can tell you the value of your case. The fact of the matter is, until the client is finished treating (and the medical records reviewed), there is no way a competent attorney can tell you the value of your case. Over the next few pages, I will explain to you how a case is valued (and the steps you can take to protect yourself).
The first rule you need to learn following a car accident is to always make your health the number one priority. There are two reasons for this. First, nothing is more important than your health. If you make your health the number one priority, than you will tell the doctor all the problems that you have, from the big ones to the small ones. You will list all of your symptoms and complaints. By doing this, you ensure that you get the best medical care since the doctor will address on all of your problems. The second reason you need to make your health the number one priority is that by telling the doctor all of your complaints, all of those complaints will be recorded in your medical records. When the insurance company (or jury) reviews your records they will see all of your complaints (and potentially internalize them).
Injuries are subjective not objective. I tell every client that there is not one person on the planet who can feel their injuries, only they can. As such, the only thing that anyone (insurance adjusters, judges, or juries) can do to guess how you are feeling is to take a look at all the actions you take following the accident, who do you treat with, how often do you treat, what do you say to the doctor when you treat, do you go to all of your appointments, do you miss your appointments, do you fill your pain medication, do you not fill your pain medications. Each action that you take sends a message about what the accident did to you.
A common example that I give to clients during our first meeting is this. Imagine that you are the insurance adjuster and you are going to decide what somebody gets following an accident. Let’s say that there were two injured people, the driver and passenger. Let’s say both the driver and passenger went by ambulance to the hospital and both complained about neck and back pain and both were prescribed narcotic pain medication. The driver never filled his pain medications and the passenger filled hers the same day. Just based on that, who do you think was more injured? Let’s go even further into the example. Let’s say both the driver and passenger go to the same physical therapist after the hospital. Both of them are scheduled to go 20 times. The driver misses 10 visits and only goes 10 times and the passenger goes all 20 visits. Now, who should get more compensation for their injury? Most (if not all people) will say the passenger. The passenger filler her pain medications and went to the physical therapist all 20 times. The driver never even filled his pain medications and missed half of his physical therapy visits. Many clients when hearing this example will even say that the driver couldn’t have been hurt that bad otherwise he would have filled his pain medications and went to all of his visits.
After going over the above example with clients I always ask them a final question, “Which one of the individuals (driver v. passenger) hurt worse on the inside?” While everyone thinks the passenger was more injured, no one can say for sure who actually hurt worse. The reason, pain is subjective.
The driver in the example could have many reasons he did not fill his medications. He doesn’t like taking medications, he doesn’t tolerate narcotics, he doesn’t have health insurance or money to fill the prescriptions. The problem with all of these explanations can be found in the very definition of “explanation”.
Merriam-Webster defines explanation as “something (such as a statement or fact) that explains something.” The problem is that the explanation may be satisfying to some people and not to others. This is also highlighted in looking at the number of physical therapy visits. The driver may have missed fifty percent of the visits because of work, money, sickness, etc. All of these reasons are valid explanations for why he missed so many visits. The problem is some people may find these explanations insufficient. They will argue that if the driver is really that injured he will “find a way” to get treatment. So while the driver has many valid explanations, invariably, they will end up costing him money in a reduced settlement.
The better option for the driver (and all injured people following a car accident) is to get their medical care and not have to give explanations for why they didn’t. Again, by getting your medical care you ensure they your injuries get addressed and that your personal injury case is best positioned.
Many times a client will miss time from work. Occasionally, these clients will have missed work before coming to sit down with one of our personal injury lawyers. The risk is that a client missed work without a doctor giving them a work release note. Insurance companies will not pay for lost wages unless a doctor took the person out of work. We advise our clients to always talk with their doctors about their work status and to always get a hard copy work release note if they are taken out.
Clients are surprised to learn how much control they have in determining “how much their case is worth.” In fact, their every action determines what they will get at the conclusion of their case. This is why it is impossible to say the value of a case at the very beginning. You do not know what the client is going to do or say as they treat and so much of the value of the case is dependent on their treatment.
Ten years ago I met with a young woman who was involved in an accident with a Fed Ex truck. The client’s vehicle was very badly damaged. The CMPD had to use the Jaws of Life to get the client out of her vehicle. She was taken from the scene of the car accident by ambulance to Carolinas Medical Center with a primary complaint of shoulder pain. X-rays revealed no fractures. Following her discharge she followed up with her primary care physician with complaints of shoulder pain. She was referred to an orthopedist. She treated with the orthopedist approximately four times with consistent complaints of shoulder pain. On the fifth time she went back to the orthopedist she said that her condition had not changed, however, she told a story about a trip to NYC. She said that she went Christmas shopping with her nieces. She said she lifted two heavy bags and felt a “pop” in her shoulder but more or less felt about the same.
Following that visit she had a MRI of her shoulder which showed an acute tear in her rotator cuff. After that, she had shoulder surgery. Fed Ex, which was defending this case focused on the lifting of the bags as the real cause of the tear and shoulder surgery. If you were on the jury for this case would you have been able to say that the car accident was the cause of the shoulder surgery or would you have doubt?
The point of story is to highlight that clients should only focus on their injuries. They should not discuss tangential topics or topics unrelated to their injuries. If they do, they run the risk of getting unrelated notes in their records.
If the reader takes one thing from this article it is to just focus on your health following an accident. If you do this you will protect yourself both medically and in regards to your personal injury.
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