Wednesday, July 15, 2009

If You're Hurt - Get Checked Out!

Here's one of the worst kept secrets of personal injury and defense attorneys alike. No early medical treatment = no significant claim. We've heard all the excuses:

  • I didn't have money to pay for it

  • I didn't have insurance to pay for it

  • I hate doctors

  • I hate pills

  • I didn't have the time

  • I thought it would get better on its own

  • My (fill in the blank) told me it wasn't necessary

Understand this: one or more of these may really be true. You may really be hurt. But the bottom line is -- it doesn't matter. If you are in an accident, and you don't seek treatment for many weeks (or worse, many months or more), you are in trouble. I don't mean medically. Because when it comes to your medical care, that's between you and your health care provider. I mean 'legally,' or better said -- 'claim-wise.'

The 'other guy's' insurance company is going to look at your claim and give it short shrift. They're going to assume that: the pain wasn't bad enough to get you to see a doctor; or some other event caused the problem; or more likely, it will reasonably (and probably - correctly) assume that a jury won't buy it. And even your own insurance company -- the one you may be looking for to pay some of your medical expenses under your PIP coverage -- will be extremely concerned. It will probably send you for an IME (an examination by a doctor of its choosing) and hope to get a report back saying that your have no objective problems that are related to the accident. Then it will use that report to deny your PIP claim.

All-in-all, it's a real mess. Defense attorneys know it. Plaintiff attorneys know it. Insurance companies know it. Juries (eventually) know it. The excuses don't fly!!

I can't tell you how many times I've observed the importance of this very basic rule: both in a negative way and a positive way. The negative way is simple. As a defense attorney, I've used this scenario on numerous occasions. Juries and arbitrators don't like seeing months of non-treatment; and the claimant ultimately pays with a low claim result. As a plaintiff's attorney, I've had to counsel my clients about this problem. I've occasionally refused to represent a client under these circumstances - either recognizing that the delay is unexplainable, or because the client doesn't believe me.

But I've also seen situations in which early treatment has proved incredibly helpful to a claim. I had a client, recently, who was in an accident and felt a little sore but didn't want to see a doctor. She relied on excuse # 6 (I thought it would get better on its own.). Fortunately, a friend of hers was a client of mine. About 2 weeks after the accident, the friend encouraged her to call me. I told her to go see her doctor. She insisted that she felt she'd get better -- even though she hadn't improved over that 2 week period. I asked her - tongue in cheek - where she received her medical degree. She went to her doctor.

The doctor noted a typical radiculopathy pattern -- pain, tingling, numbness -- and sent her for an MRI. Two days later she was sent to a neurosurgeon who diagnosed an extruded disc in her neck; and a day after that she was in the hospital undergoing a very significant surgery. Had she waited months before going through this process, the legal outcome might have been very different. Perhaps she would have been in another accident, or a fall. The longer she would have waited, the more difficult it would have been to prove that her spinal injury was related to the accident. But fortunately, having obtained an MRI just 2 weeks after the accident, the 'proof was in the pudding.' Proving her injury was related to the accident was no longer a problem. Her surgery was successful; and once she recovered, we were able to resolve her claim for a significant 6-figure settlement.

If you are in an accident, don't use the typical excuses to avoid medical treatment. If you have symptoms, get them evaluated. It's always better to have a doctor's visit where the result is insignificant, than to avoid the doctor when the result would have been significant -- medically and legally.