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A Gotcha Defense – You Haven’t Treated In How Long?

    In the past, I have stressed the importance of continuing your treatment. It is critical for any plaintiff during a personal injury case to be consistent about seeing your doctor (or doctors) regularly, as medically recommended. However, often times, the defense will latch on to a gap in your treatment as ‘proof’ that you are not really seriously hurt. Although this would not be the optimal scenario, a knowledgeable plaintiff’s counsel can adequately challenge this defense so long as you keep him or her apprised on the mitigating circumstances surrounding this supposed treatment gap.

    Let’s say, for instance, that your neurologist wants you to have another MRI of the lumbar spine, but your insurance company will not cover it. If you are not working due to your injury and do not have the financial resources, a lack of coverage could delay your decision to have the additional MRI. Or, perhaps due to your injury you cannot drive and must rely on a family member or friend to take you to your medical appointments. That means you have to wait until someone is free and can take you. Or maybe you are a single parent who must make arrangements for someone to watch your children. As you can see, there are numerous reasons why an injured plaintiff does not follow-up appropriately with medical treatment. And the defense will play “gotcha” by arguing that you must not be seriously injured or you would not have these gaps in treatment.

    Remember, insurance companies are not in business to pay out personal injury claims; they are in business to make money for their shareholders.

    So, you can expect their defense attorneys to challenge you at every turn. Also remember that there are many weapons they will use against you, like surveillance, for example. Just like gaps in your treatment, a videotape of you sweeping the driveway can appear to be much more incriminating than it actually is. A good plaintiff’s attorney will be prepared for every such challenge, so chances are it won’t be ‘the end of the world.’ If you communicate regularly and honestly with your attorney, he or she probably will be able to tear down the defense’s ‘gotcha’ arguments.

    Of course, let’s not lose sight of the importance of follow-up treatment. Putting aside all of the reasons you can’t have that additional MRI, remember to listen to your doctors. Unless you have a good excuse, keep all of your scheduled appointments. It’s better for your health, and better for
    your personal injury case.

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