Eight Ways You Hurt Your Own Personal Injury Case

in Personal Injury

By Mark Napier

1. You Admit Fault to the Investigating Officer.

While you should not lie or distort facts, often it is not so clearcut as to who may have been at fault for an auto accident or other injury accident, such as a construction injury or defective product or machinery. Fault is based on a violation of recognized standards of conduct, and often you are not aware of those standards. Don’t admit fault because you do not know all the facts. And, don’t volunteer information not asked. If you ramble about this or that, you will likely say something that will be unfavorable to your case.

2. You Fail to Seek Prompt Medical Attention.

Persons often believe their injury complaints will go away with time, but instead the complaints do not improve or even worsen over the next few days or weeks. Insurance companies love it when an injured party takes more than a day or so to seek medical evaluation. The insurance companies, and jurors too, generally assume you suffered no injury or did not experience real pain if you don’t seek medical evaluation promptly. If you believe you suffered an acute injury, go to your local emergency room. Follow-up with your primary care physician within a day or two if your injury complaints continue. Tell the medical providers ALL of your complaints and symptoms, no matter how minor a complaint may seem. Get it documented and recorded.

3. You Fail to Gather Witness Information.

Witnesses to an accident are often persons unknown to the injured person. Unless the witness’s contact information is obtained, then the person’s identity is often lost forever. Don’t assume the investigating officer or your own insurance company adjuster will gather this information. Get the contact information promptly to your attorney for follow-up. Some persons move frequently so it is important to have your attorney follow-up quickly.

4. You Fail to Preserve Evidence

Persons often fail to preserve evidence that is helpful in proving liability and the nature and extent of injuries. They have their damaged auto repaired without photos of the damage first being taken. They are injured by a defective product, but they discard the product, and the product is lost forever. They fail to take photographs of visible injuries before the injuries heal. They throw away documents that would have been helpful in proving liability. Remember that cases are won or lost on proving favorable facts or defending unfavorable facts. Preserve everything for your attorney. Take photos of anything that may heal or be repaired.

5. You Give a Recorded Statement to the Adverse Insurance Company

Persons often believe they have no choice but to agree to a request by the adverse insurance company to give a telephone-recorded question and answer statement. This is incorrect. There is no requirement that you give a recorded statement. The adverse insurance company is not looking out for your interests. They are looking out for their own interests, which means locking you into making unfavorable statements “on the record” about the accident, your pain complaints, your past medical history, and anything else that may assist them to deny or diminish your claim. Don’t ever give a recorded statement without first consulting with your attorney to decide if one should be given at all, and only then after you have been prepared to answer the questions accurately and completely.

6. You Fail to Follow the Treatment Recommendations of Your Physician

Many personal injury clients seek a medical evaluation, obtain treatment recommendations, and then fail to follow through. The excuses are usually things like can’t take off work, can’t get transportation, can’t pay for it, can’t leave my kids, or other type excuses that kill your claim. While it may be an effort to re-arrange your work schedule, or make arrangements to be off work or have someone watch the kids, the treatment must get done. If not, the insurance company will assume you were not injured and suffered no real pain or you would have followed through with your doctor’s recommendations. Also, your complaints and symptoms must be documented by the medical professional. Just saying you had pain is not credible evidence that you truly experienced pain. Follow your doctor’s recommendations.

7. You Over-treat

Some injured persons apparently think the more they treat with a doctor, the higher the value of their claim. Not necessarily true. The law allows an injured party to recover for “reasonable” medical expenses, which are “necessary” for his or her treatment. Even if the other party is clearly at fault, you don’t get a free pass to get any medical treatment you want, including less common treatments like massage or acupuncture. The evaluations, diagnostic testing, and treatment modalities must all be shown to have been caused by this accident, and not some other cause, such as aging or a pre-existing condition. While aggravation of a pre-existing condition is recoverable, only the aggravation is recoverable, not the causation of the pre-existing condition. Cases are all about credibility and when you over-treat you kill your credibility. Keep your attorney well-informed of your treatment and progress.

8. You Show No Real Effort to Get Better

Juries and insurance companies rightfully expect injured persons to make a true and honest effort to get better. An accident is not a free pass to sit on the couch all day or night and watch TV. You must make the effort to get better as soon as possible and get back to work. See your doctor as scheduled. Take any prescribed medications. Attend medical appointments on time. Never be a no-call/ no-show. Those failures to keep appointments are noted in your medical records, and defense attorneys jump all over those to show lack of effort in getting better. Do your home exercises. Return to work as soon as released to do so by your doctor. Seek light duty if unable to return to your full-time position right away. Show that you are not “milking the system” but doing your best to get better.

Mark W. Napier is an attorney in Cincinnati, Ohio who has litigated personal injury cases for over thirty years. He is a trustee of the Ohio Association for Justice, a trustee of the Southwest Ohio Trial Lawyers Association, and recognized by Law & Politics Magazine as an Ohio Super Lawyer in the Plaintiff Personal Injury category. He represents persons hurt by the safety violations of others in auto, truck, premises, workplace, and nursing home cases. Mr. Napier is admitted as an attorney in both Ohio and Kentucky.

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