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Rick Shapiro
Rick Shapiro
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Car Accident Injury Client: What Makes the Case Good or Bad? (The Collision & Medical Care)

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A number of my Injuryboard injury attorney colleagues are writing a series of articles from the perspective of the injured and sometimes bewildered car accident victim perspective. Instead of writing yet another injury lawyer article about why the particular lawyer is the greatest, best, injury lawyer of all time, we wanted to get down to the nuts and bolts and address common questions that our car injury clients have based on many years of representing car accident personal injury clients.

These Injuryboard injury attorneys are contributing to this car accident client questions series:

I was in an automobile accident. What should I do? Ten Tips For Hawaii Drivers, Wayne Parsons on September 14, 2009 – 3:59 AM EST.

What would a caveman bring to meet with the lawyer?

Steve Lombardi , September 15, 2009 11:00 AM

Solving Legal Problems, Being a Client, Back to the Basics

Steve Lombardi , September 15, 2009 8:48 AM

Being a Client: More Tips To Help Improve Your Case If You’ve Been In An Car Accident , Devon Glass , September 17, 2009 8:39 AM

Presumed Guilty: How to Avoid Having Insult Added to Injury When You’ve Been Hurt in a Car Crash, Pierce Egerton , September 18, 2009 4:28 PM

Lombardi (article above about cavemen) does a fantastic job of discussing that “Geico caveman” Warren Buffett invested his millions in Geico to make good profits, not to pay more money to car accident victims like you or your neighbor. If I ever do get smashed on the highway (I haven’t ever yet) I will hope its poor Warren Buffett of Geico fame.

Most consumers have no idea that around 20 years ago the insurers like Geico paid handsomely to hire a former CIA chief to figure out how to use the mainstream media to brainwash the consumer in the US to voluntarily give up their civil justice rights (yes, the insurance co lobbying groups hired a retired CIA chief to dream up planting false outrageous "frivolous lawsuit" stories in the press and on the internet. (To read more: Mind Control Without Drugs: How Insurers and Major Corporations Duped U.S. Consumers Into Abandoning State Safety Laws That Protected Them , Mind Control Without Drugs: How Complete Corporate Immunity/Preemption Snuffs Out State Laws) For years they bashed lawyers and convinced Joe Sixpack to give more millions/billions to insurers and to gladly and gleefully give up tort and civil justice rights so those bad, bad consumers would not “game” the tort system. Lo and behold, that cap or ceiling on suits was to stop Ms. McDonalds case lady from getting too much! Guess what, it then snuffs out your neighbor and grandma too! Then, it mainly increases Buffett’s profits and consumers lose.

Anyway, back to basic issues that car accident victim needs to know, and specifically "what makes the case good or bad?" Another point Lombardi makes that I agree with, has to do with giving a recorded statement-we all agree never give a recorded statement to the insurance adjuster representing the responsible driver. Lombardi also says you usually should not give it to your own car insurance company which is the more controversial part. You do have a duty to cooperate with your own insurance company and will likely have to provide information but there is no legal requirement that you give your own insurance company a recorded statement. Lombardi’s point is that under some states laws or if the case proceeds to litigation, your insurance company may be required to turn over that recorded statement to the responsible driver’s insurance attorney. I had not contemplated that before and he makes a good point. The other problem is sometimes your own insurance company must provide uninsured or underinsured motorist coverage to the responsible driver and at that point they are just like the adverse insurance company. Onward to new business…

I. AT THE SCENE OF THE CAR ACCIDENT–KEY POINTS

Pictures and phone numbers

You or your passengers are likely going to have a cell phone with a digital camera built-in. Somebody, whoever is not seriously injured, needs to take pictures of the damage to the car that caused the wreck, and some pictures of your car. Disappearing witnesses are a huge problem in car accident injury cases. Police officers do a good job of responding to the crash, but if they know that the at fault driver has given a statement they are generally not concerned about locating other witnesses that may support the magnitude of the car crash or the issues of who was at fault. If you are able to get around, try to get a phone number of any witness who is milling about the scene. Once they get in that car and leave, you are likely never going to find their phone number. If you have no access to a pen simply call your own cell phone and leave yourself a voice message with their phone number or license plate number or both.

No citation or ticket issued

Some consumers who are hurt or injured think they do not have the case if the police officer does not issue a ticket. Wrong! There is no requirement that a ticket or citation be issued in any car accident personal injury case. Under the civil justice system, the injured person typically just needs to prove by the greater weight of the evidence that the other party was the cause of the accident and injuries.

Even more significantly, most states do not even allow into evidence in a personal injury case whether the police officer issued a ticket or citation to the responsible driver that caused the crash! In Virginia and some states, the only exception to introducing evidence of a traffic/criminal ticket issued to the responsible driver is if that driver actually pleads guilty or mails in the ticket accepting responsibility-then that evidence is admissible.

Sometimes a police officer just doesn’t feel comfortable saying which driver is at fault, but once we interview a client and investigate the crash we often become highly convinced that our client is free of fault and have accepted many cases over many years where no ticket was issued.

Minor car damage means no injuries?

Imagine there are two different car drivers driving the same make/model car that received virtually the same exact car bumper damage in a rear end collision, in two different cities at two different times-and both are rear ended by the same exact make/model SUV going the same speed. One driver is on the East Coast and one is on the West Coast. Could the East Coast driver be permanently injured and the West Coast driver receive no personal injuries? Of course. Imagine that the East Coast 58-year-old driver has had two prior neck surgeries, and is still in physical therapy months after the second neck surgery. However, the West Coast driver is a 19-year-old who has never had a prior neck problem. The 19-year-old from the West Coast might get out of the car , have no injury noticeable at the scene, in the days after or ever. The 58-year-old East Coast driver feels an immediate onset of neck pain, leaves the scene with the rescue squad to receive emergency care, and then begins a more aggressive merry-go-round of medical visits, further physical therapy and possibly a third neck surgery, likely due to the existence of the pre-existing neck condition.

The legal phrase is that this person is an "egg shell skull" victim, meaning that that person might not have had a skull or body part in a regular condition but instead as delicate as a skull made of an egg shell! Under nearly all situations, the law says that a responsible driver takes the injured victim as they are even if the responsible driver has no awareness that the person in the car that they smash has an egg shell skull, or some significant pre-existing conditions that make them more susceptible to personal injuries. Doctors know that someone who had a previous surgery on a body part develops scar tissue and is more susceptible to re-injury.

The point here is that minor car property damage may indicate something significant or it may not, especially if the person who was rear-ended has some special physical condition or medical condition that makes them more susceptible to injury. The bottom line is this: the insurance companies love to deny claims or pay pennies on the dollar on minor damage car accident cases as an excuse not to pay what can be a significant and valid injury claim backed up by several medical doctors opinions. Consumers that suffer new personal injuries but have a pre-existing condition are smart to hire an experienced personal injury attorney. Insurance adjusters love to deny any compensation to a consumer for an obvious permanent injury, because permanent injuries are not tied directly to an economic loss formula, plus our clients often do not know what type of medical opinion to get from their treating doctor in order to outline the permanent nature of their injuries.

II. MINDING YOUR MEDICAL CARE–DO’S AND DON’TS

Stay-At-Home Resting Your Bones v. Qualified Medical Care

Client 1 comes to our law firm several weeks after their car accident injury and explains that besides one visit to the emergency room they rehabilitated by staying at home for two weeks to mend their body. Client 2 goes to the emergency room, is told to follow up with their family doctor, does so, and the family doctor refers that victim to an appropriate specialist and for other physical therapy. All other things being equal client 2 will be paid a more significant sum for their personal injuries than the client who rested their bones for two weeks at home. Insurance adjusters are simply trained to look for qualified medical care and documentation, as well as the expenses associated with it. Client 1 will receive inadequate compensation if injured the same as client 2, because there is no qualified documentation of the significance of the injuries following the emergency room visit, especially assuming that no doctor issued a note saying that client number 1 should remain off of work for the two-week period also. Documentation, evidence, expenses always trump the injured clients "word" that they were hurt and could not get up off the couch.

Arguments with medical doctors/providers

We hate to see this as personal injury lawyers because doctors, physical therapists, and all medical providers are trained to record any notes that relate to your medical care. "I told Dr. Smith he did not know what he was doing" and I switched doctors, a client might tell us before we could explain that every word of this was not only recorded in the office notes, but may be recorded in a way that is stilted against you as the injured patient. No, you don’t tell your medical provider that they simply don’t get it because it will come back to haunt you-even if you think that you right. Instead, you properly see another provider if you must, but as lawyers we can counsel our client about switching horses (medical doctors/providers) too often or for no good reason.

Irrelevant verbal statements/disclosures to medical doctors/providers

When you go to a physical therapist, stay on topic, that is just talk about your care or how you were doing. Do not cozy up to the therapist and confide with them about your brother who is the sex offender that was just released from the state penitentiary, or about anything that could somehow be used against you by an insurance lawyer months later.

We do explain to every injury client that if the case gets into court, the insurance lawyer’s basic strategy is to subpoena every medical record after the date of the accident but even going back for a number of years before the accident to study whether you had any condition that they can argue makes your claim less valuable. Some clients think they can hide a damaging medical record or opinion, but finding all relevant medical records is fairly easy for an insurance lawyer by simply going to a health insurance provider and getting a list of all expenses paid by that provider for example, but also they simply look for cross-references between records.

Irrelevant written statements to medical doctors/providers

Yes, I had to do a second topic here different than the verbal topic above, because we have seen it all. We have had the client fax a hand written long note to the doctor explaining that the doctor did not understand how the pain of this client was significant, or why the doctor got it wrong in sending the client back to work when they were still hurt, and blah blah blah. Guess what? Once the doctor/medical provider puts that written fax or letter in your patient chart, it will find its way to the insurance defense attorney months later if the case goes to court. We have even had the injured person’s wife or husband hand right the nasty note that finds its way into the file. What makes your case good or bad? Not doing faxes or hand written notes to your medical provider telling them how they don’t understand your medical condition!

Big gaps (long periods) in having medical care

This situation is if you are treating with doctors on a regular basis for several weeks or months, and then stop going to any of those medical providers for three months, and start back up. Lawyers and insurance adjusters called this a gap in treatment. Is there a good reason? When there is a good reason we as injury lawyers can deal with this and it’s not a case killer, but an unusual lack of medical care and then a resumption of the care needs to have a rational reason or the insurance adjuster will try to claim that none of the care after the long gap is really related to the car accident injury. The insurance adjusters try to scour the medical records and other records to try to claim that some part of the medical care has nothing to do with the car accident case even without a major gap in care.

Disclaimer: this article is not specific legal advice but is a general legal guide. This is never a substitute for specific legal advice about what to do if you were in a car accident and received personal injuries. Seek out a qualified legal opinion if you have any questions about your own particular circumstances.

3 Comments

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    Rick, thgere is a lot here and you obviously know the subject. I find the GEICO story and the direct connectionbetween tort reform and brainwashing at a sophisticated level by Big Insurance to be amazing. Why doesn’t Fox News and even MSNBC report heavily on this? Why doesn’t the Des Moines Register or the Honolulu Star Bulletin put this story on the front page? Maybe its because they make a lot od advertising money from insuance companies?

    On the tips that you offer an injury accident victim , they are all good, but the one we see most often in Honolulu that causes problems is the gap in treatment. It happens often because a single mother has to choose between work, her kids and going to the doctor. People have to make choices like that and I hate to see it when the insurance company hires an IME doctor who says the gap in treatment proves that the woman is not hurt and then some snotty insurance adjuster or defense lawyer working in a big law firm calls her a liar.

    Keep the great artricles coming Rick. We all appreciate your hard work and extensive experience in representing real people in their time of stress and trouble.

  2. Steve Lombardi says:
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    Before the Internet was so widely used I hardly knew of this type of case. Now we see that it’s more than just a few cases of heavy handedness and excessive force. I just have to wonder how complex the facts are and did the suspect turn just as the officer was about to shoot? But then again, if he wasn’t armed, why would an officer have to shoot his weapon? This is a troubling set of facts as presented. More troubling is the repeated explanations like the one you give, like I thought he was reaching for a weapon. That is so rote and easy to say without substantial factual support.

    How many times have we looked at a case and there is one fact that changes the entire case outcome? Too many times I’m sure. Your title is what most people call and want to ask. Do I have a good case? It’s never easy to say yes or no. The most we can say at that point is, based on what you’ve stated the case of liability seems to be clear or is not clear. But additional facts might change my opinion. What I suggest people do after an accident is to use common sense and realize they are in a war of words with the insurance industry. So getting legal advice is never too soon; only too late. Nice article Rick.

  3. Mike Bryant says:
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    This really is a great article about the various ways that real claims are ruined or stolen from well meaning people, hopefully some will read it and protect themselves. Far to many people learn the hard way after these things have happened.
    Medical records and the statements they contain are so crazy at times. We have a local clinic that has instructions to open a separate file if it’s a car accident. Guess what? It’s easier to just not write anything down. It took years of clients being asked “didn’t you tell the doctor about the accidents” to finally find out what was happening. The knowledge has saved many of our clients from many of the problems that the unrepresented will have no knowledge of. There are so many traps for the unwary. Thanks for pointing out many of them.