Over the years of working first for insurance companies, then later (and now) against them as a personal injury attorney representing accident victims, I have learned some common mistakes that legitimately injured accident victims often make which can negatively impact an injury claim. I call the following mistakes “The Seven Deadly Sins”:
1. The accident victim waits for days or weeks to get medical attention.
If you feel pain after an accident, you should promptly see the doctor. Many times people delay seeking medical attention thinking their pain will simply go away. If it does not, but you see the doctor for the first time well after the accident, this can make it hard to prove that your injury was caused by the accident and not some other cause.
The more time that goes by between the accident and medical attention, the more difficult it is to prove that the injury was caused by the accident itself. The insurance company will always argue that if you really had pain, you would have sought medical treatment right away. Even more importantly, however, if you have pain following an accident, it is important to get medically evaluated because you may have an injury that is far more serious than you realize, requiring prompt attention.
2. The accident victim fails to obtain sufficient information at the motor vehicle accident scene and does not call the police.
It is extremely important to call the police after a motor vehicle accident. The police officer will take witness statements and document much important information in his or her report. The officer becomes an important witness to what each person said immediately after the accident. This is crucial because some may intentionally change their stories later, and memories of the persons involved in the accident, as well as those of independent witnesses, can become less accurate as time goes by. You should also obtain accurate information from the other driver, including current address, telephone number, driver’s license number and insurance information which will be needed later. Get the year, make, model and license plate number of all involved vehicles as well.
Whether the accident is a motor vehicle accident or not, get names, addresses and telephone numbers of any witnesses. Ask them to write (and sign and date) a short statement describing what they saw. If you have a camera on your cell phone or otherwise, photograph the accident scene both from a distance and from up close. Take multiple photographs if you can.
3. The accident victim provides too much information to the at-fault driver’s insurance company immediately after the accident.
After an accident, you can expect the other driver’s insurance company to call you and ask you to give a “recorded statement” and to sign forms allowing them to request your medical or other records. You are not required to give a recorded statement or sign medical records authorizations or anything else for the other driver’s insurance company, and it is a big mistake to do so.
The insurance adjuster who takes your statement is a highly-trained specialist, and statements you make can easily be misinterpreted to later undermine your case. Do not do so unless advised to by your own attorney, and with your attorney present. Insurance companies can use medical records authorizations to request medical records not only relating to the incident in question, but also past medical records having no bearing upon the injury in question, and which they may not have a right to obtain at any point in the process.
4. The accident victim fails to keep follow-up medical appointments or follow medical advice.
Accident victims who miss follow-up doctor appointments, or fail to follow medical advice in terms of taking medication, attending physical therapy or anything else the doctor recommends, can seriously damage their claims. If the doctor recommends a course of treatment or a follow-up appointment, obviously it is important for you to comply with the recommendation. Strictly from the standpoint of your injury claim, missed appointments and failure to follow medical advice permits the insurer to argue that you must not have truly been hurting, or that your failure caused your injury to be worse than it would have been had you followed advice.
5. The accident victim fails to disclose past accidents, injuries or medical conditions to the doctor or his or her own attorney.
You need to tell your doctor (or your attorney if you hire one) about any prior injuries or medical conditions you had before the accident in question. The other side will be entitled to know how many past accidents you have been in. All insurance companies subscribe to databases that provide this information, and almost always already know how many prior accidents you have been in before they even ask you. One of the biggest reasons they ask is that they hope to catch you in a lie. If they do, they will argue that you were hiding your medical history in order to fool them (or the judge or jury) into thinking that you were hurt worse than you actually were.
You are entitled to recover from the party at fault in your accident for any aggravation or worsening of any prior injuries or medical conditions that pre-existed the accident. Your doctor, and your attorney if you hire one, need to know about any pre-existing injuries or conditions in order to properly evaluate whether the accident in question aggravated or worsened them.
An accident victim being untruthful about anything, even if completely irrelevant to the claim, can destroy even the most legitimate and serious personal injury claim. Your argument that you lied because you did not think it was important to the case will not fly. The insurance company attorney’s argument will be much better. He or she will argue that if you are willing to lie about something unimportant, you are certainly willing to lie about any other aspect of your case while asking a jury for a substantial monetary verdict. The judge or jury will agree. The insurance companies can afford good attorneys. They do not hire idiots. If you lie, you will likely get caught, and you may end up facing criminal charges for insurance fraud and perjury as well. Don’t lie.
6. The accident victim misrepresents his or her level of activity or exaggerates the effects of an injury.
Absolute truth should be maintained throughout the claims process without exception. Misrepresenting or exaggerating the effects of an injury for purposes of an injury claim is a felony crime, insurance fraud, for which one can and should be prosecuted and receive jail time and a heavy fine. It is also morally wrong and will not, and should not, be tolerated by insurance companies, judges, juries, attorneys or anyone else.
Insurance companies will often hire private investigators to secretly use cameras and video recorders to document your activity after an accident. They will also look for your on Youtube, Facebook, Myspace and other social networking sites. They will “Google” you. If you misrepresent or exaggerate the effects of an injury, chances are you will be caught.
Think nobody’s watching? Think again!
A true personal story: I call it, “Surely They Won’t Follow Me On a Family Vacation!”
Years ago, when I made my living defending insurers against personal injury claims, I was representing a large insurer against a woman claiming serious back injury from an automobile accident. When I took her deposition, she claimed to have severe restrictions in simple everyday physical activities such as carrying groceries from her car and other ordinary household chores. She even claimed that standing and walking caused severe back pain, and that she spent most of her days sitting or lying down.
My instincts told me she was not being truthful, so I convinced the insurer to allow me to hire a private investigator to conduct video surveillance. A few days later, the investigator called to tell me that “the subject” and her family and children were packing the car for what appeared to be a snow-skiing trip (the husband’s skis gave it away).
Although he would not tell me how he did it, the investigator found out exactly where they were going. I notified the insurance adjuster of this, and he agreed to pay for the investigator to travel to Vail, Colorado to continue surveillance. A week later, we had more than 3 hours of video of “the subject” bending over to buckle and unbuckle heavy ski boots, carrying her and her children’s heavy ski equipment, aggressively and beautifully skiing, and even taking a hard tumble now and then. We even got footage of her skiing while carrying her young child.
After the trip, she continued seeing her orthopedist every few weeks, still claiming severe limitations in carrying out simple daily activities. I took a followup deposition a few months later, and she described her limitations similarly. She also denied having left town at all since the accident.
Now she had committed perjury in her deposition in addition to committing insurance fraud. We could prove it. Days after we sent the video footage to her attorney, she dismissed her case at her own cost.
Insurance companies will spare no expense to prove exaggeration or fraud. The stakes are high. Their attorneys and adjusters are not fools, and they do this every day for a living. No matter how legitimate your claim may be, they will assume and hope from Day One that you are like “the subject” mentioned above who went skiing, and keep looking for ways to prove it.
7. The accident victim fails to adequately document injuries.
After an accident, you should photograph any cuts, bruising or other physical evidence of injury to your body. You should also keep a daily journal documenting what pains you felt, when, where and their level of intensity. Be as specific as you can. Describe any activities you were unable to perform or had difficulty performing or found painful. This will be extremely helpful in the claims process to describe how your injury affected your daily life. It can also help you to recall and communicate the specifics of your complaints to your doctor. But above all, be truthful, and no matter what, DO NOT EXAGGERATE!!!
Following graduation from Loyola Law School in New Orleans in 1990, Price McNamara served as a Federal Judicial Law Clerk to the Honorable John M Shaw, Chief Judge, United States District Court Western District of Louisiana.
Mr. McNamara founded J. Price McNamara ERISA Insurance Claim Attorney, and began putting his past experience to work for the injured and disabled clients he now represents against the insurance companies in personal injury and long term disability and other insurance disputes in both federal and state courts