Insurance companies and their lawyers are “skilled counterpunchers” when negotiating your personal injury case. Their job is to throw as much “mud up on a wall” regarding your injury to see what might stick if your case goes to a jury trial. Here are some of the top defenses I have seen insurers use in their arsenal to deflate the value of your personal injury claim:
Gaps in Medical Care or Missed Medical Appointments in the Middle of Your Treatment
One of the biggest mistakes people sometimes make is not seeking prompt medical attention or obtaining consistent medical care after an injury-producing accident. Your health must be a priority when you are injured in an accident. Failing to seek medical care can be harmful to your health and prevent your injuries from healing properly. If that were not enough, insurance companies and their defense lawyers are well-trained to look for delays in medical care to either deny your claim or minimize your settlement value. Why do they do this? Because they have a better chance of convincing a jury that because there was a delay in medical treatment, you either were not that injured or there was something else besides the accident that caused your injuries. You see, juries want an injured person to “turn heaven and earth” to seek medical care because that is what a good defense lawyer will tell them at trial. Insurance companies know your chances of losing that argument diminish the longer you wait to obtain prompt and consistent medical care. Do yourself and your family a favor, seek medical care as soon as possible, and follow your doctor’s instructions. Remember, this is not the time to be stoic about your injuries since most injuries cannot heal properly without good medical attention;
Previous/Subsequent Injury or Medical Condition DefenseThe insurance company will blame part or all of your current medical symptoms on past or subsequent injuries or medical conditions. It is extremely important to have detailed medical records to explain any apportionment of past or subsequent medical issues. In law school, I was taught the “eggshell plaintiff ” theory, which says, “You take your plaintiff as you find him or her.” This means if you had a prior medical condition that was made worse by an accident, the person responsible for the accident takes on the responsibility of making you worse. However, to prove this, you must have your doctors detail any aggravation or exacerbations of your previous medical condition(s). An experienced San Diego car accident lawyer can help with this important medical documentation;
Finding Contradictory Statements You Made or Hidden Medical Ailments You Did Not Previously DiscloseIt is extremely important to only give statements to the insurance company after consulting with an experienced injury attorney. We briefly spoke about only some injury cases needing a lawyer. But before you go without counsel, ensure you take advantage of a free legal consultation because the insurance company will take advantage of you, especially if a lawyer does not represent you. If you have retained counsel, please make sure you disclose every prior medical condition to present your injury case for settlement properly;
The Low Property Damage DefenseThe low property damage defense is often used in car accidents that contain property damage generally under $1,500 or where photographs of your vehicle show minor visible damage. Therefore, obtaining the photographs and repair bill of the other car is important, as well as asking whether the at-fault party or their passengers were also injured in the accident. Sometimes, insurance companies use low property damage to deny a bodily injury claim, alleging “no causation of injury due to low biomechanical forces.” It is also important to note if you sustained any aggravation of a prior medical condition to help show why you were injured from what would be considered a low-impact accident. Any evidence to help establish why you sustained injuries in a low-impact case is crucial. It should be presented to the insurance company as soon as possible to remove it from the hands of a claims adjuster who only handles what the insurance company considers low-impact cases. Some insurance companies call these bodily injury claims Minor Impact Soft Tissue or MIST cases;
Over-Treatment in Your Medical Care or Your Medical Care Was Too Expensive; These Defenses Seem to Go Hand-in-HandThe insurance company will usually try to negotiate down your medical bills to pay out less in pain and suffering damages to which you are entitled. Remember, the medical findings must support your medical care's frequency, duration, and intensity. For example, you really cannot treat with a chiropractor or physical therapist beyond a certain timeframe without objective findings of medical evidence to support further treatment. When you arm your claim with the proper medical documentation, it makes navigating this defense position easier for your lawyer. This is yet another reason to hire legal counsel experienced in personal injury law to represent you in your bodily injury case;
Your Credibility as a Witness for Yourself in Explaining Your Injuries Can Sometimes Be Open to AttackPlease see the third bullet point in this chapter, as they are related. The insurance company wants to see how you come across as a witness for yourself during the trial. It could be how you present yourself, whether or not you are likable, or whether or not you have had some other issues in your past that would be relevant to your injury case now. Another example of the insurance company attacking your credibility is seeing if you have had numerous lawsuits. This is called the “vexatious litigant.” The insurance company or their defense lawyers will use these details about you to try and minimize your injury claim.
Mark C. Blane is a San Diego Personal Injury Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm dedicated to representing families of people injured in personal injury accidents, including car accidents, slip and falls, dog bites, product defects, and the like. If you or a loved one has been killed or injured in an accident in San Diego or Southern California due to the negligence of another, please order your free copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information that will help you protect your legal rights, and it normally sells for $16.95. However, it is free to all California residents or those injured in a California accident.