Your Medical Treatment Record Can Make Or Break Your Personal Injury Case

In our practice, we hear a familiar refrain, “I didn’t think I was seriously injured so I didn’t go to the hospital,” or “I felt better so I didn’t go back to my doctor.” If you were involved in an accident and your injuries were minor and not permanent, then this makes sense. But the problem with certain injuries is that they don’t always manifest into seriously debilitating conditions for days, weeks, months, and sometimes even years to come.

The best advice for anyone injured in an accident, be it a car accident, motorcycle accident, construction site accident, or a trip and fall accident is to seek medical attention immediately. Firstly, you need to make sure that you haven’t sustained an injury that could be immediately life threatening, such as a brain injury. You need to be examined and cleared by a medical professional. And, secondly, if you have sustained a serious or life altering injury that could show up later on, you are going to need medical documentation from the outset. If something serious is wrong with you and you wait too long to see a doctor, then the chances of a successful resolution of your personal injury case drops significantly.

That is especially true in a case where the injured party has suffered a soft tissue injury such as a herniated disc or torn meniscus. Aside from being caused by severe trauma, a disc herniation or torn meniscus are often times conditions caused by aging, and insurance companies will most assuredly attempt to prove that your disc herniations, bulges or torn meniscus are a natural result of just getting older. For that reason, judges and juries need to see consistent medical treatment records, comprehensive doctor treatment notes, and usually hear expert testimony. Remember, just because you got hurt does not necessarily mean you will be compensated. To a certain extent, you need to take charge of your own personal injury case.

Additionally, once you’ve seen a doctor and have been diagnosed with a serious or permanent injury, you need to continue to treat with that doctor as well as with other specialists he or she might recommend. That might include a neurologist, an orthopedist, a physiatrist, a physical therapist, an acupuncturist – it can be a long list. And, the financial and time commitment can be steep. But in order to receive appropriate compensation for your injury, damages, and loss of work, you will need to follow through. Your attorney may be knowledgeable, but he or she cannot work miracles. In order to win your case, medical proof is essential.

What Clients Should Know About IME’s

Q. For those who may not know, please explain what an IME is all about.
 
A. If you become disabled or injured, one of the things the insurance carrier may demand is that you submit to an Independent Medical Examination, or IME. Most people assume that this medical examination is impartial because the word independent is used in the title. However, that could not be further from the truth. In fact, it would be a lot more accurate to call the exam an Insurance Medical Exam because it is done by, for, and to benefit the insurance company. Unfortunately, insurance carriers are not looking for an independent evaluation.

Q. Who chooses the examining doctors, and who do these doctors work for?
 
A. Most medical professionals who perform IME’s work for insurance carriers on a regular basis either in a direct relationship with the carrier or with a third-party IME service. This gives them a vested interest in finding disabled or injured claimants healthy and able-bodied – they consider it job security. These medical professionals seek to tell the insurance carriers (their customers) what the insurance carriers want to hear, i.e., that the patient is medically fine and not entitled to disability benefits. They know that if they perform a real independent examination and find the claimant to be disabled or injured, it will lead to less repeat business from the insurance carrier, or carriers. In the end, the IME doctor most often chooses to keep his or her customer happy by giving them what they want – a medical report which supports denying the claim.

Q. What can a client expect during an IME?
 
A. It usually starts with a record review. Before you have even met the IME doctor, the insurance company already has combed through your medical records, typically cherry-picking which records to provide to the IME doctor for review. The records are often taken out of context to make it seem as if the claimant’s medical condition isn’t too bad, or that the medical evidence is contradictory or ambiguous. As a result, even if the IME doctor may be inclined towards impartiality, he or she only is provided with controlled information.
 
Another fairly common practice among some IME doctors is to look for “holes” in your medical record. Something as simple as an accidental omission on the part of your treating physician can result in an IME report that says your medical report does not support your disability or personal injury claim.
 
The carrier also provides the IME doctor with specific written questions for him or her to answer. And finally, when the exam finally happens, it usually is quite superficial. Most IME’s only last a few minutes – surprising given the length of the IME doctor’s report and the extensive list of clinical testing the doctor supposedly performed.

Q. What other kinds of problems can a client expect from an IME?
 
A. Added to this already unfair system is the fact that many of these IME professionals often have their own preconceptions and biases about the medical conditions the claimants have. Many IME doctors will dismiss – outright – debilitating illnesses and conditions such as chronic fatigue syndrome and fibromyalgia because these conditions are not easily detectible through CT-scans, MRI’s, or other diagnostic testing. Unlike a treating physician (your doctor) who tends to examine and treat you over an extended period of time, IME doctors see only a snap shot of your medical condition. The most an IME doctor can do is comment on the claimant’s condition on the one occasion that he or she performs the examination on behalf of the insurance carrier.

Q. What happens if you don’t go to the IME exam?
 
A. You cannot refuse to go to an IME. If you do, there is a high probability that the insurance carrier will deny your claim or cancel your benefits. But, you can be prepared by retaining a knowledgeable attorney at the outset. Our firm, for example, counsels our clients before they go to their IME’s. And, we send a registered nurse from our staff with them to the examinations. That serves two purposes: 1) it tends to relax our clients, and 2) it sends a message to the independent medical professional performing the exam that the client’s law firm is paying attention.

Take Responsibility of Your Case & Your Care

This is your personal injury case. You were injured. Your life has changed for the worse. You are claiming someone else caused all of this and you want fair and adequate compensation for your pain and suffering, your medical expenses, and loss of earnings. You have to prove your case to a jury and usually convince a judge not to dismiss your case before it is even heard by a jury. This case is all about you. Therefore you have to take an active part and be the interested party. Part of being actively involved in your medical care means taking note of who is providing your care, what they are doing for you, and why they are doing it.

One of the pitfalls of going to the clinic the ‘good samaritan’ directs you to is that you never really know who is treating you and why those treatments are being recommended. These ‘medical mills’ may be supervised by one physician, but that physician may only see you periodically. The physical examinations may be performed by different doctors on each occasion. The therapy you receive will usually be performed by different therapists on each occasion. Don’t get me wrong, there are some excellent multi-specialty trauma clinics that provide the best in medical care. But those that are excellent are run by board certified physicians, provide useful and beneficial care, and document their examinations and treatments with the utmost professionalism. At the end of the day, regardless of the medical care you receive, it will be up to you to keep track of that care, and have the knowledge to describe the treatments you received in sworn testimony. I cringe when a client giving sworn testimony at a deposition or trial cannot answer the questions: “What is the name of your doctor?” “What is the doctor’s specialty?” “Where is the office located?” “What did the doctor do for you?” “Did the doctor take or refer you for any diagnostic studies?” and so forth. Remember this is your life, your injury claim, and your burden of proof.

How can you protect yourself in this regard? First, use reliable, reputable medical providers. Next, obtain a business card from every medical provider who treats you. Third, advise your attorney of every medical provider who treats you so your attorney can obtain full sets of all medical records and outline them for you. Fourth, keep a calendar or diary of your medical appointments and what was done for you on each occasion. This will help you keep track of what may become an extensive amount of information, and will help you refresh your memory when the time comes to give sworn testimony. Finally, do not just go through the motions. Listen to the doctors. Ask them questions. Follow their advice. Take an active part in your medical care. First and foremost, it will benefit you medically and hopefully improve your health. As a corollary benefit, you will assist your attorney in the prosecution of your case, you will be a worthy and credible witness who a defense attorney will have a difficult time cross examining, and a jury of your peers will find you credible, giving them the reason they need to find in your favor.

Epilepsy As A Result Of Brain Trauma

Unfortunately, brain trauma from accidents are a major cause of epilepsy. Car accidents, motorcycle accidents, football games, any of these can be the culprit. And although people can have seizures immediately after injuries, seizures also may occur a week or more later and could mean lasting brain damage. When someone has one episode, it is a seizure. When someone has more than one seizure, it then is referred to as epilepsy.

With lasting damage, it is more likely that seizures recur. Most people can recognize epileptic seizures by uncontrollable body shaking. However, there are symptoms prior to full blown seizures including staring, sudden fatigue, inability to communicate, and being unresponsive to stimuli – an off in another world appearance that may go unnoticed.

For those who experience traumatic brain injury, the chance of having seizures and later epilepsy is higher, as trauma affects both the frontal and temporal lobes. And while MRIs might detect abnormal activity in the brain, these tests generally cannot establish the precise cause which may complicate proving cause and effect in a personal injury case.

Whether this is a life-long impairment depends very much on the amount of damage done to the brain. Doctors try to pinpoint the most likely cause of seizures in order to determine the prognosis. In the event epilepsy becomes a chronic condition, there are medications to control it. Phenobarbital is the most common. But medications such as Gabapentin and Topiramate (also used as pain killers) have frequently been used in recent years.

Generally, after you’ve had even one seizure, you will not be able to drive for at least a time. In addition, after you’ve had a seizure or if you have been diagnosed with epilepsy, you will need to be careful about activities such as climbing ladders and swimming, It is prudent to make sure that you have people around you who know your condition during these activities.

Make sure people around you know what to do and what not to do in the event of a seizure. For example, the old wives’ tale of sticking a spoon in someone’s mouth not only is not true, it also is dangerous. Instead, make sure the person is on the ground, and that there is nothing in his mouth. Check his pulse and make certain he is breathing. And, of course, call 911 immediately

If You’re In Pain & You Know it, Let ‘Em Know

As you can well imagine, if at the site of an accident, you fail to tell anyone about your pain, that will come back to haunt you in a personal injury case. In fact, all of the people you need to convince including judges, juries and insurance carriers, may doubt your credibility if you were too stoic right after you got hurt.

Some people are just that way. Some people, even though they are hurting, are too traumatized or frightened and they do not want to get in an ambulance or be examined at the hospital. Then, later on, they realize the extent of their injuries and want to pursue a case.

However, if you then choose to sue for compensation, it may be difficult for those who influence the outcome of your case to believe you. They might believe:

1. Your injury could not have been that serious if you were able to leave the scene on your own, without medical attention; and

2. Any injuries you now claim could not have been a result of that recent accident since they did not manifest themselves at that specific time.

This may seem unfair, but look at it through the eyes of jurors who may never have been injured in an accident. Delayed pain or symptoms may not seem so obvious to them. You could, for example, have suffered from brain trauma, which unfortunately, is not always evident right after an injury. In fact, that is precisely what makes brain injury so dangerous. It also is why immediate medical evaluation is so critical, not only to prove your case but also, in some instances, to save your life.

Brain injury is a more extreme example, but you also could have a broken bone or a spinal injury that would not immediately cause you discomfort. Remember, often when you suffer the trauma of an accident, adrenalin is amped up, and you don’t always realize the damage until much later. In the case of any kind of soft tissue injury such as a herniated disc, the damage could be significant and not reveal itself for days, months or even years. The only way to assess your physical condition after an accident is to be examined by a doctor and have the diagnostic tests the doctor deems necessary.

If, however, you make the mistake of avoiding a medical examination following an accident, that does not mean you will not prevail. An experienced personal injury attorney will take that into consideration and work hard to show those who need to know that you do, in fact, have serious injuries as a direct result of that specific accident. Still, though, keep this advice in mind.

What Makes Insurance Companies Tick?

Insurance – something that none of us particularly like very much (paying premiums is not pleasant), but also something we just cannot do without. Nearly every client I have ever had asks the same question: Why won’t the insurance company just pay my claim? And like I have said here dozens of times: because paying out claims is really not the essence of their business model.

The frustration of clients who have experienced injury from an accident
is completely understandable. After all, they imagine, why on earth can’t the insurance carrier empathize with their suffering and their loss? How could the insurance carrier withhold compensation when they (those who were injured) were blameless?

Once again, I remind my readers that insurance carriers, although
they happily collect premiums from millions of Americans, are not working to pay out compensation. Rather, they work for their shareholders. They are in business to make money with the purpose of investing that money only to make more money.

Why Do They Take So Long?

For insurance carriers, it’s all about taking their time; delaying conversations, decisions, and payments. The longer they hold onto “their” money, the more profits they will earn from investments. They routinely delay or deny claims for a multitude of justifications: some outright wrong, some difficult to prove or disprove, and others plain petty. Short of blaming the injured party instead of their own customer, insurance carriers often use excuses such as:

  • The accident was caused by someone or something other than the individual they insure.
  • The injured person stopped short or did not stop quickly enough.
  • The accident was avoidable.
  • The injury is not really serious or debilitating.
  • The injured person was not transported to the hospital by ambulance.
  • There was a delay in medical care.
  • The injured person’s diagnostics are interpreted differently by their insurance doctors.
  • The injured person did not miss enough time at work to be credible.
  • There were pre-existing conditions that are causing symptoms.
  • The injured person is asking for too much money.

Insurance carriers have many other reasons (excuses) for denying payment, but you get the idea. In other words, they always have many reasons to deny and too few reasons to approve. But that should never deter an injured individual from seeking knowledgeable legal counsel. Although some of these “defenses” may contain a shred of of legitimacy, a skilled personal injury attorney can successfully oppose or mitigate most of them. That means he or she will need to obtain all relevant information and documentation on your case. You cannot leave out one detail.

But you are not or should not be a passive participant in your own personal injury case. As the injured party, you also must do due diligence and avoid making mistakes.

For instance, as I’ve discussed many times before, make sure to get the medical care you need right after the accident and long after the accident. To the best of your ability, try to get the contact information from witnesses. Do not take advice from non-professionals. Closely follow the advice of your treating doctors. Always be truthful. And above all, do not have discussions with the insurance carrier or the individual who is responsible for your injury. They are not your friends, no matter how friendly they sound. Make sure you have your own personal injury attorney handle it for you.

No personal injury case is a slam-dunk win. Most are complicated and require patience. That is why the best you can do is follow your doctor’s advice and listen to your attorney. He or she has your best interests at heart.

In The City That Never Sleeps, Construction Accidents Never Stop

Back in 1979, the death of a 17-year old college student at one of the country’s most prestigious universities shook the city. She was needlessly killed when a large piece of masonry fell from one of the school’s most neglected building facades. Now, 42 years later, the same prestigious university has been issued numerous safety citations over yet another one of their decaying structures.

Ultimately, the school was ordered to erect a scaffold and a sidewalk shed in order to avoid any other deadly accidents.

Last March, in Queens, a 35-year old construction worker who was riding on the back of a transport vehicle was killed when the driver of the vehicle failed to lower the forklift. The victim hit his head on a low ceiling, fell off, and was pinned by the vehicle.

This same construction property had been issued four stop-work orders last year, and had more than 50 active violations including working without a permit. Unfortunately, there were signs that a fatality was likely to happen. And last May, a security guard was killed and a 27-year old construction worker was hurt when an 8 X 14 foot panel of glass fell from one of Manhattan’s tallest skyscrapers.

In all instances, the buildings/construction management had been inspected and warned to get their operations up to code. As is too often the case, many of these tragic accidents could have been avoided if building owners/construction site management simply obeyed the law.

You May Consider Your Dog Family; But NY Considers Him Property

If you are an animal lover, you are not alone. In the U.S., nearly 70 million households own dogs; and 74 million own cats. That is a lot of pets, and a good number of people consider their pets to be family.

In 2013, a New York judge agreed. He presided over a custody hearing for a miniature dachshund named Joey in what was New York’s first matrimonial pet-custody case. However, the law nationwide has not yet caught up to public opinion. And despite cases here and there of judges treating pets as “family,” under New York law, your cat or dog still is about as valuable as your toaster oven. Pets are considered property in New York.

Not only can that fact cause you emotional turmoil when arguing over the custody of a pet, it also can cause you emotional turmoil should someone harm your pet, intentionally or unintentionally. Because pets in NY are not considered sentient beings, the amount of financial compensation you can recover for emotional distress, for example, if your neighbor were to harm or kill your pet, is quite limited, and very much depends upon the judge in your case.

Since 2003, there has been a movement across the nation to change the status from pet owners to “pet guardians,” largely in the hopes that the change in language will assign more value to your cat or dog. Cities like San Francisco, for example, have adopted that terminology, as have Boulder, Colorado; Berkeley and West Hollywood in California; Sherwood, Arizona; Amherst, Massachusetts; Menomonee Falls, Wisconsin; and the entire state of Rhode Island. New York, though still regards Fido as a thing and not a being.

What Does That Mean?

That means that should someone harm your pet, you are entitled to sue for what the law considers “market value.” Determining that market value may be tricky unless you have a pet that is a pure-bred champion in the ring. Most people have mixed breeds, and determining their value often hinges upon emotional attachment.

Of course, you may be entitled to veterinary care compensation, so keep careful track of vet expenses and ask your veterinarian to do the same. Unfortunately, in New York, the amount you can recover should someone harm your beloved pet often depends upon which judge is hearing your case. Of course, for expert advice, contact a knowledgeable attorney.

A Lie By Any Other Name Would Still Be Against The Law

In the Law, we call lying perjury. Perjury in Court, in a deposition, or committed to legal documents is serious business.

When an individual appears in Court and takes an oath to tell the truth and nothing but the truth, then tells a lie, not only may that put a case at risk, it also may put that individual’s freedom at risk. In general, judges do not look too kindly upon witnesses who knowingly lie to the Court. The American legal system, although not perfect, depends heavily upon getting to the truth of the matter in order to achieve justice. Lying under oath (or perjuring one’s self) shakes the very foundation of our legal system, and in plain English, the system then cannot work properly.

In New York, as most everywhere in this country, there are “degrees” of perjury charges: First Degree, Second Degree, and Third Degree, with First Degree charges carrying the heaviest penalties. Of course, much depends upon the discretion of the judge, but perjury can mean from one to seven years in prison and/or from $1,000 to $5,000 in fines.

In considering the relative seriousness of perjury charges, generally the Court will weigh how relevant the perjury (or lie) is to the matter at hand. In other words, if a witness lies under oath about something not directly related to the case, it probably will not be dealt with as harshly as it would were he to lie about a fact that has a direct impact on the case. Nonetheless, any lie by any witness calls into question that witness’s credibility. Begging the question: should the judge and/or jury believe that individual since he lied about something else? The truth matters. The absence of the truth adversely affects peoples’ lives.

Because the truth is the basis of our legal system, generally New York perjury law, Penal Code article 210, does not allow for ignorance. In other words, if a witness lies but incorrectly believes that lie is immaterial to the case, the Court will not allow that defense. That determination is not up to the witness. Nor will the Court allow a lack of competence as a defense. Perhaps, the thinking is, if someone is competent enough to lie, demonstrating a certain amount of cunning, that person is competent enough to know the lie is wrong.

Although I have not often come across clients who will perjure themselves, I still always stress the paramount importance of being truthful in Court, in a deposition, and in legal documents. The repercussions of perjury are personally severe, and dishonesty can destroy even the best personal injury case.

When under oath, when being questioned by an officer of the Court, when signing legal documents, if you cannot remember the truth, do not know the truth, or even if the truth is something you would prefer not to know, perjury is not the answer. If you are unsure or don’t know the answer, say so.

If You’re In Litigation, Watch Your Tweets

Social media is a great way to connect with old friends and classmates, promote your business, or join networks with individuals who share common interests. However, social media sites also invite the public, at large, to “get to know you.” And if you are in the middle of a personal injury litigation, you need to be very careful about how much personal information you share online. Just like I’ve talked about many times before, people, especially insurance carriers, really are watching you.

Just think of a situation where an insurance carrier has captured you driving your car or unloading bags of groceries on videotape. In court, your attorney might be able to argue that the carrier has merely taped a single snapshot – just one moment in time where, despite the fact that you have multiple lumbar spinal herniations and should not be lifting anything over five pounds, no one else was around and you were forced to do something strenuous. That one instance of surveillance might not be that significant. However, if instead a carrier happens to read your FaceBook post where you are skiing in Aspen or doing a walk-a-thon for a cause, the carrier could argue that those activities are a part of your lifestyle – that you really are not that physically impaired. When you, as an injured client, describe these kinds of activities, a jury may be hard-pressed to find in your favor.

In addition to descriptive posts, any photographs you share on FaceBook, Twitter, YouTube, Instagram or the like, can be evidence for the defense. You might ask, what’s the difference between being surveilled on tape or posting photos of yourself on social media. Here’s the difference, if you are under surveillance, and the carrier captures you doing everyday activities, your attorney could make the case that you are doing what you need to do in order to take care of yourself or your family. But, if the carrier’s attorney presents photographs of you sky-diving, or Tweets of your adventure hiking on the Appalachian Trail, let’s just say that you probably should not expect a very good outcome.

Of course, if you let slip some ordinary activity on FaceBook such as vacuuming or lifting something heavy by yourself, your attorney could, again, argue that you were simply trying to persevere despite your disability. However, most (but certainly not all) people do not post ordinary, boring details of their lives online. What I am talking about here is the need to avoid giving ammunition to the other side. High octane activities like skiing, dancing, or running, even if your participation in them is minimal, could hurt your personal injury case. But, to err on the side of caution, while in the midst of a personal injury litigation, it is a good idea to avoid social media altogether.

Make no mistake, whatever you post online is considered public domain – you are not protected and have no expectation of privacy. Also, you can just assume that what you share online will stay there. Regardless of how much time goes by, if someone is conducting a search on you, they eventually will find posts, tweets or images you have posted. The internet, like love, sometimes, is forever.