Archive for the ‘Personal Injury’ Category

Insurance Investigators and Your Claim: The Case of the Irritating Investigator

A Typical Insurer's Private Investigator (no, I'm just joking . . . )

A LETTER FROM THE INTERNET: I’m often asked about the role of ‘private investigators’ in personal injury claims.  In response, here’s a letter that I responded to on Avvo.com, a web-based attorney information service that I participate in, that might interest readers:

“hello,

i was involve in a car accident. i know that sometimes insurance companies hire private investigator if they think that there is a fraud or the case amount is high. i was wondering what is high amount?

thanks
emmy”

SETTING THE RECORD STRAIGHT ON INVESTIGATORS:

Here’s my answer to Emmy’s letter:

Dear Emmy,

Sorry for your accident. Of course, my naturally suspicious mind is driven to this question: why are you worrying about an investigator? In the words of most defense attorneys and insurance adjusters: ‘Do you have something to hide’?

WHAT A PRIVATE INVESTIGATOR DOES: To answer your question more seriously: having worked as both a defense lawyer, representing insurers, and as a plaintiff lawyer representing injured persons, I can tell you with some measure of certainty that there is no ‘high amount’ that triggers an investigation. The insurance adjusters will deploy investigators when a claim ‘looks’ suspect (for an extreme and somewhat exaggerated example, a person with a sprained pinkie saying that they’re disabled for life will likely be subject to surveillance if there’s an ongoing claim). The decision to send out someone to follow a claimant and see how they’re spending their time in real life is based on subjective criteria, and, in my experience, is often left to the adjuster’s discretion.

DOES “SIZE MATTER”: Of course, if a claimant is seeking minimal compensation, an insurer may decide that it’s not cost efficient to spend $2,000 – $3,000 to deploy an investigator, and might decide to settle the claim at a low level rather than incur that cost on top of the settlement cost. However, increasingly insurers seek to ‘send a message’ to claimants by aggressively investigating what they feel are suspect claims.

These ‘investigators’ are an annoyance. They’re hired to develop evidence, whether by observation or often by photograph or video, that a person isn’t as badly injured as they claim. In my practice, from both sides of the aisle, I’ve rarely seen an investigator hired by an insurer who was an accurate, independent, direct and honest reporter of what they observe.

THE INSIDER’S GUIDE TO INVESTIGATORS: More often, in my experience, these ‘investigators’ (really, paid spies) recognize who’s paying the bill, and rather than acting as independent witnesses, they turn themselves into advocacy witnesses to try to help the insurance companies or defense firms who pay for their services. These ‘investigators’ (sometimes retired adjusters; often, retired or disabled former law enforcement or private security officers) often hide or selectively record evidence of a claimant’s activity in an effort to try to ‘amplify’ the actions of an allegedly injured person. In other words, when the person looks healthy, they start the video recorder; when they look injured, they turn the recorder off. Not only that, but insurers and defendants, under the rubric of ‘work product’, try to hide the existence of such ‘spies’ and their videos until the eve of trial (a process I’m very critical of, and which I believe is based on old and discredited practice).

MALIS|LAW PUTS THEIR INVESTIGATORS TO WORK — FOR YOU!: I’ve developed several pre-trial techniques for ‘smoking the investigator out’, and if your attorney is savvy, he or she will know what to do to make sure that there are no rude surprises as you approach trial or settlement of your case.  The good news is that often these investigators can be discredited by good, aggressive cross-examination in discovery or at trial; their bias exposed; and their opinions weakened. Even better, their ‘spying’ sometimes proves disability, rather than disprove it.

In many of my larger cases, I’ve been able to take this investigative evidence and use it to coerce the insurer to pay more for the claim, by showing that the ‘paid spy’ actually learned that my client was more severely injured than even the insurer thought.  MALIS|LAW bloggers can see an example of this in practice in my December, 2009 post about a construction accident case that we settled for $900,000 in total benefits that we already published in this blog, “The Case of the Deleted Defect” .

HONESTY IS THE BEST POLICY; YOU HAVE NOTHING TO HIDE: Despite this pernicious practice, although in my experience these investigators may occasionally disclose someone working when they claim to be disabled, it’s never happened to me or my clients. As I advise clients and others often, an injured person’s best weapon in personal injury litigation is their honesty.  If you can perform an activity, admit it.  If you can’t, tell your lawyer what you can’t do and why.  Ultimately, frank and honest disclosure of the extent of your injury is always to your benefit, and will generally help your lawyer obtain a fair and full settlement for you.

Settlement Update: $285,000 For Injured Hospital Worker Attacked by Insane Patient — The Case of the Harried Hospital

THE SETTLEMENT: MALIS|LAW, hired as trial approached, working with Attorney Dean Brunel,  has obtained a $285,000 settlement from a mental hospital on behalf of a cleaning contractor with a significant knee injury.  The cleaning contractor’s knee was significantly injured when he was assaulted by a psychotic patient who was allowed to walk freely in the corridors of a mental hospital while being admitted.

THE HOSPITAL’S NEGLIGENCE: The patient was being transferred from the open unit of the institution to the ‘closed’ unit on an involuntary admission, with a known history of violence, especially towards people of color.  The institution had few formalized guidelines for such transfers, developing them after the patient attempted to strangle my client as he cleaned the hallway.  As a result of the assault, my client suffered a stretched and torn ACL (anterior cruciate ligament) of his left knee, which an orthopedic surgeon addressed by reattaching and treating the fibers with heat.

CREATING A WINNER: Attorney Brunel approached me to try the case about one month before trial.  The client had not treated with a physician for several years, although he had complaints of knee pain.  Given the imminent trial, we mounted a ‘full court press’ to make the case trial ready.  I approached his original surgeon, who ordered a newMRI of his knee and found that the surgical repair, which had been performed with an experimental technique that has since been abandoned, had again failed, requiring additional procedures.  Within that month, I also developed expert psychiatric testimony of the hospital’s failure to follow proper procedures for communication of information about a committed patient between outpatient and inpatient wings of the hospital, which accounted for the lack of proper security and the patient’s being allowed in the vicinity of other persons at the hospital.  Literally on the eve of trial, I was contacted by the institution’s insurer, which agreed to settle.  The settlement was paid by the insurers for the institution; the admitting psychiatrist, who was sued for negligence; and the facility’s security company for negligent security.

Trial Update: Five Years, Two Trials, An Appeal, A Victory — The Case of the Revised Report

THE JUDGMENT:  MALIS|LAW recently obtained a final judgment of over $80,000 against a major supermarket chain for a shopper injured on a wet floor, prevailing despite five years of questionable tactics and an attempt to ‘rewrite’ a favorable medical report by a defendant expert witness.

THE FACTS OF THE CASE: In this slip and fall case, the shopper slipped and fell on water coming out from under a green mat placed up against the base of a refrigeration case.  Claiming supermarket negligence, we contended that the store’s employees had placed the mat over the leaking area either to conceal or absorb the leak rather than repairing the refrigerator.   The supermarket chain asserted that there was no negligence and disputed the causation of the plaintiff’s fall and the extent of her injuries.

THE HERNIATED DISK: As a result of the fall my client sustained what was initially believed to be a back sprain. However, an MRI conducted by Shields MRI revealed a lumbar disc herniation which compressed the nerve root which carried signals to her leg, causing radiating leg pain. My client complained of ongoing back pain which has not resolved, aggravated by exertion,  and causing interrupted sleep. She was assigned a permanent loss of function of 10-15% of her whole person by her treating physician.

PROVING THE CASE: During discovery the store’s attorney initially refused to produce an incident report prepared by the defendant’s store manager, which he had  used to prepare the manager for deposition.  We immediately filed a  Motion to Compel Production which also sought sanctions, and the attorney, to avoid a court order, voluntarily produced the report.    The report revealed that the store manager had observed water from an unknown source on the floor where the plaintiff fell at the time of her injury.  Despite this disclosure, the defendant insisted that there was no water on the floor; that if there was water the defendant was not responsible; that any water was not present long enough for the defendant to have notice of it; that the water did not cause the plaintiff’s fall; and that the plaintiff had suffered no real injury.

THE ATTEMPTED REVISION: Shortly before trial the defendant presented as an expert  the owner and supervisor of the facility where the MRI which confirmed Plaintiff’s disk herniation was taken .  The owner was the employer of the  radiologist who read the film and produced the report.  The owner was produced to testify that there was no abnormality which had been caused by the fall shown on the plaintiff’s MRI.  At the same time, the store and its attorney produced a report which was supposedly an ‘addendum’ to the plaintiff’s MRI original results.  This report, allegedly issued by the plaintiff’s radiologist, contradicted his prior findings, indicating no focal disc herniation and indicating that the Plaintiff was suffering only from, essentially,  ‘degenerative changes’.  The store did not call the original examining radiologist to contradict his earlier findings.  Nevertheless, we were ready for this tactic at trial, as it had been deployed by this same Defendant in another previous case. Despite the store having requested mediation at the commencement of litigation, the store only offered $3,000 in settlement and refused to negotiate further, and the matter proceeded to trial.

UNPRESERVED EVIDENCE OF THE EVENT: The case was tried over the course of two years on non-consecutive days due to conflicts in the presiding judge’s trial schedule in the Boston Municipal Court. At trial, Plaintiff produced a witness who verified that she saw the Plaintiff immediately following the fall adjacent to a refrigerator case lying in a large puddle of water coming out from under a green mat. The defendant’s store manager testified that the floor was regularly cleaned every hour, and that the water indicated in his report was in a different location than where the plaintiff fell.  However, on cross examination, the manager admitted that he had absolutely no memory of the event; that the described location was within a few feet of where the Plaintiff alleged falling; that the store has a camera provided to document such situations; and that he had decided not to take a photo of the area where the plaintiff fell.  We argued that the reason that the manager didn’t take the photograph was because he didn’t want to prove that his store was negligent, thus deliberately failing to preserve evidence.

MEDICAL EXPERT TESTIMONY: As to the victim’s injury, her treating neurologist testified over two half days of court time concerning the Plaintiff’s disk herniation, opining that it was causally related to the slip and fall accident, insisting, in the face of many hours of cross examination, that the abnormality was not the result of congenital or degenerative factors.  The neurologist also rejected Defendant’s spurious claims that her back pain was caused by an earlier incident in which the Plaintiff complained of leg pain in an isolated incident lifting luggage years before, or from an earlier accident in which she injured her back, treated for a few months, and was discharged.

THE WRONGFUL REVISION: As to the ‘correction’ to the MRI from Shields, the neurologist rejected the ‘newer’ addendum, noting that he himself had observed the herniation in review of the Plaintiff’s actual MRI films. The neurologist also observed that the ordinary practice in providing such ‘addenda’ is to provide them to the treating doctor within 30-60 days of an initial report.  The ‘addendum’ in question was prepared more than two years after the initial report, and was never provided to him by Shields MRI. This supported our argument’s contention that the amended report was a contrivance that was created after the defendant’s hiring of the radiologist’s employer, the owner of the facility, as an expert in the case.

JUSTICE PREVAILS: The trial judge rejected the Defendant’s expert testimony, and  found for the plaintiff in the amount of $35,000, with significant accumulated interest, for a total judgment of $65,000.  The defendant appealed the finding to the District Court Appellate Division, and the appeal was denied.  Defense counsel then sought a de novo trial before a jury in the Superior Court. One month before the re-trial, the supermarket chain’s in-house attorney directly contacted me and agreed to pay my client the amount of  the judgment, with accumulated interest, which by then was $85,000.

Settlement Update: $1 million+ For Victim of Botched Circumcision — The Case of the Suspended Surgeon

Our office has obtained a settlement of over $1 million in present and future payouts  for scarring caused by a negligent surgeon who botched a child’s circumcision and then attempted to conceal his error.

The case involved a relatively inexperienced family practitioner who, during an otherwise routine circumcision of an infant, removed almost all of the skin covering the shaft of the child’s member.  The physician had apparently become confused and disoriented during the procedure and improperly re-adjusted a clamp which would have prevented this drastic mistake.  He stopped bleeding by extensively using a chemical agent to cauterize the bleeding and traumatized skin, and covered the wound with an over-large bandage.  He also reassured the child’s parents, who were concerned about their child’s appearance, that the seeping wound was ‘normal’ and would be ‘fine’ in a later visit.  The ‘overly aggressive’ circumcision was discovered by a supervising physician from the physician’s practice on the day after the circumcision, and the child was rushed to a consultation with a pediatric urologist, who eventually repaired the damage with a skin graft. The doctor later apologized to the child’s parents.

The defendant physician’s counsel insisted that the error in practice was not malpractice, but an ‘unfortunate result’, despite the physician’s subsequent termination from the family practice which hired him based upon the incident, as well as critical comments made by the head of the physician’s practice and the doctor who discovered his malpractice.  The insurer maintained this position virtually up to the time of trial, despite evidence which showed that the physician’s description of the manner in which the clamp was used was hopelessly confused and incorrect at deposition, and his attempt to distance himself from his apology to the child’s parents by claiming that it was not motivated by guilt but by a desire to avoid a malpractice suit.  Further evidence that the physician had appeared to become distracted while making comments to nursing students observing the procedure provided more proof of the physician’s failure to use due care.

The physician’s attorney also (correctly) argued that the scarring caused by the malpractice had been corrected within six months of the procedure and that the child had no observable medical problems and preserved function.  The physician’s insurer claimed that damages were therefore minimal.  We countered this argument with extensive medical research and psychiatric expert opinion concerning the likely psychological effects on child and mother caused by such a  disfigurement.  The case went to mediation one week before trial, and was successfullly settled for a structured payout worth $350,000 present value, with a stream of payments worth in excess of $1 million over the life of the child.

Settlement Update: $4.1 Million Settlement For Construction Worker’s Spinal Injury After Staircase Falls — The Case of the Slumping Staircase

 

The "$4 Million Dollar Stairs"

Attorney Daniel Malis of MALIS|LAW, with the assistance of  Attorney Frederick Fairburn of Fairburn & Dyke in Lawrence, announced the culmination last week of five years of litigation involving the collapse of a stairway on a construction project in Hampton, NH which injured a Massachusetts plumber, though a settlement from various defendants totalling $4.1 million.

SERIOUS INJURY ON CONSTRUCTION SITE: The wood framed, 17 stair staircase collapsed after framing contractors, under the instruction of the general contractor, disconnected the stairs from side supports to insert fireproof drywall, but left the stairs in that disconnected fashion for a period of time between 1 day and more than two weeks depending upon which witness was believed.  My client, a plumber, was climbing the staircase when it collapsed.  When the staircase struck the landing below, the small of his back struck the edge of the stairs, crushing one of his vertebrae.  Following the collapse, the general contractor immediately re-erected the stairway; secured all stairways at the sides with extra nailers; and did not disclose the accident to local inspectors or the project engineer during a site visit the following day.

Demonstrative Evidence Showing the Damage to Client's Spine

MY CLIENT’S SPINAL INJURY: My client, a married 35 year old Massachusetts apprentice plumber, suffered a crush injury to his L1 vertebra when a 17 stair wood frame staircase gave way.  He was med-evacuated from a NH hospital to Beth Israel Hospital where he underwent the first of three surgeries over 5 years to stabilize his back, including, by the time of the final surgery, a four level lumbar fusion, with fixating steel rods extending over 7 vertebrae, and with additional surgery likely in the future.   While his motor functions were preserved, the employee remained in chronic, debilitating pain, with narcotic pain relief as his only medical recourse, and, according to Plaintiff’s vocational expert, was permanently totally disabled.  Plaintiff’s vocational expert and economist calculated the present value of his earnings loss over his career at $1.7 million which, with his $400,000 in medical expenses to date and continuing, presented special damages in excess of $2.1 million.

FINDING THE BEST FORUM FOR MY CLIENT: Rather than bringing suit in New Hampshire, we brought suit under diversity jurisdiction in federal court in Massachusetts against the engineer, architect and general contractor.  The New Hampshire-based design professionals claimed that Massachusetts had no jurisdiction over the case, and that the lawsuit belonged in New Hampshire, with a local judge to decide my client’s fate.  Despite the presentation of carefully worded affidavits from the architect and engineer which distanced the ‘design team’ from Massachusetts, our own investigation showed that both professionals were licensed in Massachusetts and had substantial contacts with this state, and the court denied their motion.

BUILDING A STRONG CASE: Vigorous discovery disclosed the identity of a Massachusetts –based framing supplier who had contracted to perform the framing, along with two NH-based framing subcontractors hired by that company to do the actual work.  These companies were joined as third party defendants.  The general contractor blamed the framers for the collapse; the framers claimed that they destabilized the staircase at the general contractor’s instruction.

THE CONTRACTORS’ NEGLIGENCE: Depositions of witnesses and other site contractors revealed that the staircases were not built according to plan or specification.  Testimony and post-accident photographs taken by a separate plumbing contractor who was first on the scene revealed that the subcontracting framers had sloppily  ‘toenailed’ the bottom of the stringers at an angle into plywood on the platform, instead of using a cleat or nailer which would have allowed the stringers to be nailed straight through the plywood platform securely into the carrying  beam. This substandard bottom connection of the staircase,  allowed the stair bottom to slip and kick out over time once the general contractor ordered the staircase to be disconnected for drywall installation, and was a major contributing cause of the staircase collapse..  The framing contractors’ departure from site plans and use of substandard attachment methods were not detected by the general contractor; the framing supplier, who contractually agreed to supervise the framing work; or the architect and engineer, who had contracted to inspect the site.

During a day-long deposition, the framing contractor who disconnected the stairs at their sides for drywall installation finally admitted that he knew that he had rendered the staircases unstable.  He admitted that while he would normally block off stairs left in this precarious shape, he could not explain why he did not do so on the stairs at this site.  These admissions established clear liability on the framing subcontractors, as well as confirmed the general contractor’s negligence for ordering the disconnection and failing to observe the improper staircase installation.     .

THE DEFENDANTS TRY TO EVADE LIABILITY: While the Plaintiff had established uncontroverted evidence of a drastic injury, the extent of his disability was disputed by the Defendants with a vocational assessment which, despite the Plaintiff’s dependence on narcotic painkillers, alleged that he still had the ability to consistently perform light duty work.  This was rebutted not only by the Plaintiff’s sympathetic appearance and supporting opinions from two orthopedic surgeons, as well as a vocational expert, but also by the graphic evidence shown above demonstrating that his seven level spinal fusion was unstable, with the securing screws shifting in his vertebral bodies and eroding the bone in which they were secured.

Following discovery, the parties attended a day long mediation, which was initially sought by the Defendants to settle the claim.  However, negotiations were reduced to a full day of finger pointing among the Defendants, with no real offers made.   We took advantage of this apparent disaster by sending demand letters under c.93A to the insurers for the general contractor and the framing supplier, based upon their complete failure to promptly evaluate the Plaintiffs’ claim and accurately address their exposures.

Eventually, on the date that responses to Plaintiff’s demand letters were due, the dispute (which at end turned out to be an argument over legal fees between the Defendants) was tabled between the insurers, and the general contractor and framing supplier tendered their full policy limits of $2 million to resolve both parties’ liability.  This opened a window to settle with the erring framing joint venture for $1.6 million, leaving the so-called ‘design professionals’, the architect and engineer, who had yet to tender an offer.

THE ARCHITECT AND ENGINEER’S NEGLIGENCE: The so-called ‘design team’ initially declined to settle, and presented a vigorous defense, despite admissions from the architect that the project engineer should have detected the improper staircase installation.  Counsel for the designers sought summary judgment, alleging that the entire cause of collapse was the building contractors’ negligence, and that the architect and engineer played no role in the staircase’s collapse.  Plaintiff presented countering affidavits from a construction expert and design experts initially presented by the settling Defendants and then retained by Plaintiff.  Summary Judgment was denied, and the case scheduled for trial in early 2010.

Plaintiffs further sought an order from the Court pending trial seeking to prevent offset of the settlement against any jury award, based upon New Hampshire’s ‘hybrid’ contribution statute, which awards damages based upon a contributing defendant’s percentage of negligent contribution to an accident (so-called ‘pure contribution’) but does not credit the settlement contributions of other settling parties.   While this motion was pending, the parties attended a half day mediation session with the previous mediator, Attorney Mulvey, and, over the strenuous objections of the architect and engineer, their insurers settled the remaining claims for $500,000, bringing the my client and his wife’s total recovery to just over $4.1 million.

The Case of the Marketplace Myth — Why Product Manufacturers Have to Be Regulated

While I’m debunking myths, here’s a morality tale, as they say on TV, ‘ripped from today’s headlines’ . . .

“Boston Scientific to pay $22M in payment inquiry
By MARLEY SEAMAN
The Associated Press
Wednesday, December 23, 2009; 4:53 PM
NEW YORK — U.S. attorneys in Boston said Wednesday heart device maker Boston Scientific will pay $22 million to resolve allegations its Guidant division paid kickbacks to doctors to get them to use its heart devices.
The U.S. Department of Justice said Guidant paid physicians $1,000 to $1,500 each in 2003 and 2004 to participate in four studies, called RaCE, RaCE II, RaCE III, and MERITS. It said the studies were designed to increase sales of pacemakers and defibrillators.
Federal officials said the company targeted doctors who favored products made by other companies, hoping the payments would induce them to use Guidant devices more often. They said Guidant submitted claims for payment on the devices to Medicare.
Boston Scientific did not admit wrongdoing as part of the civil settlement. Under the agreement, its cardiac rhythm management division will have to publicly disclose payments to physicians on a Web site. Boston Scientific also entered into a corporate integrity agreement.
The studies were conducted after the Food and Drug Administration had cleared the products for sale. Post-approval studies are often used to further evaluate medical devices or compare their performance.
Boston Scientific bought Guidant in 2006. The company is based in Natick, Mass.
Its shares rose 2 cents to close at $8.82 Wednesday. “

The Case of the Prior Pain — The Fact and Fiction of Earlier Injuries

Many insurers (and, sometimes, even lawyers who represent injury victims) would have you believe that if you’ve had a prior injury or case, it will severely harm your present case, or limit or eliminate your damages. In my experience, in the hands of a good trial attorney, that ‘weakness’ can often be turned into a ‘strength’.

If you take the right steps, reveal your history to your lawyer, and retain a properly skilled and diligent trial attorney, you can reverse the myth and maximize your recovery.

Here’s two great examples of how we can deal with medical history and complications here at MALIS|LAW, from past cases:

1. The Classic ‘Bad Back Made Worse” — I had a client who was injured on a construction site, who’d had a bad back that was so troublesome that he was seeing a chiropractor and orthopedic surgeon on a monthly basis before he had the fall that led him to hire me.

At trial, we demonstrated graphically with before-and-after Xrays and MRIs that his fall had tremendously accelerated the rate of deterioration of his spine. His treating doctor testified that his pre-existing degenerative condition made his spine far more vulnerable to trauma like that caused by his fall. His wife testified that while he had given up many of his favorite sports activities, his one source of pride as a man was his ability to work and earn, and that this accident was, literally, the ‘straw that broke the camel’s back’.

A jury awarded him well over a million dollars for his claim.

2. Drug Addiction — Insurers love to put an injured person’s illegal drug use in front of a jury to ‘tar’ a claimant. In one case in my office, however, we were able to turn that potential weakness into a strength:

A client came to my office with an awful injury. During his recovery from surgery, his need to take opiate pain killers to deaden his pain brought back an old ‘street’ addiction to illegal narcotics. Eventually, his family had to have him hospitalized to rehabilitate. Massachusetts law, however, prevents admitting evidence of addiction or illegal narcotic use as damages.

We were still able to use my client’s dramatic story, however, to underscore the extent of his damages. I was able to demonstrate, through family and physician testimony, the depths of his pain; the complications from his addiction; and the completeness of his rehabiltation, and the help he received from his wife ad his family. Even though we couldn’t introduce evidence of accident related addiction, we still retained an expert in the field of addiction who would be prepared to testify that his accident related opiate use ‘triggered his addiction’. This presented the insurers with a dilemma; if THEY introduced the evidence of my client’s drug addiction to lessen my client’s reputation with the jury, they faced potential admissibility of his addiction as a damage.

Despite this potentially ‘lethal’ complication in my client’s treatment, the case settled for many millions of dollars (and, I’m pleased to say, the client has successfully warded off his addiction).

Here’s a few general rules of how to deal with your medical history in YOUR case . . .

1. BE HONEST WITH YOUR LAWYER.

Disclose your prior medical history in detail to your lawyer when you hire them. Don’t hold back information because you think it will discourage the attorney, or prevent them from working hard for you. The lawyer’s worst enemy in a personal injury case is an undisclosed prior injury. However, if you disclose your past history, the lawyer may well find ways to maximize your recovery, as you’ll see below.

2. UNDERSTAND THE LEGAL STANDARD.

The law in virtually every state will compensate an injury victim for the extent that an injury worsens a prior condition, even if the nature of the trauma wouldn’t have ordinarily injured a hale and healthy ‘victim’. The law ‘takes victims as they find them’. For example, if a prior trauma worsened a kneecap so much that another trauma, even if light, fractured it, the victim’s entitled to recover for damages for the fractured knee. However, in awarding or assessing damages the jury (or insurer) can take into account the fact that the knee was already not 100% to begin with.

3. TELL YOUR DOCTORS YOUR ENTIRE HISTORY.

Just as with your attorneys, don’t hold back details from your medical doctors. Most physicians will tell you that ‘patient history’ during interviews is a critical diagnostic and treatment tool. Just as with your attorneys, your doctors need to know about your past to give accurate appraisals of your present and future condition. If something troubled you before the accident, even if it was previously resolved, let your doctor know (even if they don’t come out and asked). If you had an ongoing problem, make sure the doctor knows about it, and also knows whether it’s different or worsened now. A full and accurate medical history will help you get the maximum recovery from medical treatment (which should always be your goal, as no personal injury settlement will make up for your loss of health).

4. DON’T DECIDE WHAT’S IMPORTANT OR WHAT’S NOT — DISCLOSE EVERYTHING.

Obviously, the first question about a prior injury or claim is: are they not at all related? A prior knee injury will likely have nothing to do with hurting your shoulder. A chronic problem with your finger has little effect on a brain trauma. While these are obvious exaggerations, they still can be used by a skilfull defense lawyer to hurt your credibility if they aren’t disclosed up front. This might seem counter-logical — why create a record that could hurt your case? However, understand that insurers conduct thorough investigations of claimants, through attorneys and, during litigation, using the formal tools of discovery. Assume that the insurer will not find out, and trust me, they will, and will use your non-disclosure as an excuse for not paying you fairly for your injury. Assume that they will, and you take this weapon away from them, and allow your lawyer to tell the story that benefits you best from the real facts at hand.

5. DON’T EXAGGERATE OR MINIMIZE A PRIOR INJURY.

Often, orthopedic injuries heal in a relatively short time. Sometimes, they don’t, presenting nagging injuries that last for years. In either case, the insurer’s best strategy is to get an injured person to distort or lie about their past, ‘trying the lie’. Since a jury tends to distrust injured persons seeking compensation anyhow, the insurers and their attorneys try to make the injured person less credible, suggesting that a misstatement about something years ago amounts to a lie being told today. The best way to frustrate that strategy is to look back, honestly, at your injury ‘past’, and make sure your attorney knows about it. Review the records with them when he or she obtains them, and refresh your memory about the prior history, especially prior to answering interrogatories (questions under oath) or to giving a deposition (a sworn statement under oath).

6. LOOK FOR CONNECTIONS

So you’ve injured the same part of your body twice. Any orthopedic doctor would tell you that a prior trauma to an area creates a greater likelihood that a second trauma will cause more or worsened damage. It makes sense — if you’ve damaged ligaments or tendons, these injuries can weaken the support structure so that another trauma rips far more. Think about how differently a healthy tree and a damage tree weather a storm. So reflect a little bit about your medical condition before describing your history to your attorney. Were you truly fully recovered, or did you have a residual twinge that’s now out of control? Let him or her know.

7. KNOW YOUR PAST — DON’T MEMORIZE IT.

In this process, you aren’t required to remember every detail of your past; no one’s that smart, or lives their life as a notetaker. Disclose everything as best you can, but don’t get so tied up in dates or times that you come off as ‘scripted’. Give your best, honest recount of your medical history, and rely on your lawyer to help you over any factual bumps.

8. TRUST YOUR LAWYER TO TELL YOUR STORY.

Since few of us escape life without getting nicked up, almost all of us would have to deal with a prior injury as part of our medical history, and as part of presenting the claim. The area of ‘prior claims history’ or injury history is probably the greatest reason that your lawyer will add value to your claim. They’ll scour your record and, if reasonably skilled, will try to either minimize the effect of a prior injury by distinguishing it; demonstrating that it had already been well resolved; or, even better, using it to explain how the trauma of your current accident created so much damage to you or your life.

The Case of the Girlfriend’s Grief — What Should a Client Worry About When an Accident Happens?

Boyfriend Hit Someone Crossing Against the Light

My boyfriend who is on my insurance hit a woman crossing against the light. Two witnesses verified that she was crossing against the light on the police report. She was able to get up and walk, but how bad is this going to be for us?

Daniel Malis Says:

Dear ‘Chicago’,

While I’m not a licensed attorney in Illinois, you’ve posed a common general question, so here goes:

1) The bad news: As to your boyfriend’s responsibility for the accident, while it is helpful that the woman was crossing against the light, it’s not determinative of her or your boyfriend’s relative fault for the accident. I don’t know of any state where crossing against the light provides an automatic defense for a driver to striking a pedestrian; or, phrased another way, it’s never lawful to strike a pedestrian who’s crossing a road. However, the pedestrian’s failure to comply with traffic laws by crossing against the light may be a factor a jury or judge would consider in apportioning blame, either by finding your boyfriend not responsible or by allocating a share of the blame to the pedestrian. Other factors will play a part; such as, had the pedestrian just stepped off into the curb or was she well across the street and in plain view of your boyfriend when he struck her? Was she running or walking at a normal pace? Were there obstructions to your boyfriend’s view that might have prevented him from seeing her before it’s too late?

2) The good news: the reason you carry insurance on your car is for circumstances like these. Your insurer will investigate the accident and the injury, and provide you and your boyfriend with an attorney to present your defenses. Hopefully, if her injury is not severe and your coverage adequate, this will be only an inconvenience as to your time, and will not be ‘bad’ at all. The vast majority of these cases settle without anybody but the insurer paying, and well before any trial of the case occurs.

3) As a personal injury attorney who does much more work for injured parties than for negligent parties, I can tell you that it is very rare for a plaintiff (the injured person) to seek or obtain judgments for damages beyond insurance coverage limits of the driver and owner of the vehicle. Such ‘private’ judgments are time consuming, delay payment of insurance proceeds unduly, and difficult to enforce.

You can learn more about how these factors play out in your case by discussing these issues with the adjuster whom the insurer selects to handle your case, and, if necessary, Make sure that the insurer has all of your information so that it can start your investigation.

Sleep easy, and good luck.

The Case of the Indignant Insured — Does an Uninsured Driver Have a Right to Sue?

Does an insured driver have to pay for the damage of an uninsured if I was hit from the rear.

I was charged with failing to yield. I stopped at the stop sign and then preceded to merge into the median when I was hit. The driver of the other car was only charged with no insurance.
I do no see how I failded to yield when I did stop and make sure there was nothing coming. The other driver had to be driving too fast or was doing something other than looking not to be able to see me. Both of us was taken to the hospital and I was told at the hospital that I was charged with failure to yield. Will I be responsibe to pay for the other drivers damages? This happened in South Carolina.

Daniel Malis Says:

The short answer is that your, or the other driver’s, insurance status does not dictate whether or not you are legally responsible for causing damage to another’s car. Your liability is not dependent upon insurance, but upon whether or not you (and the other driver) drove your car with care appropriate for the circumstances (otherwise called ‘reasonable care’ or, when not shown, ‘negligence’).

Fortunately for you, you are covered, which means that your property damage will be paid for; you will receive an attorney to defend you paid by the insurer; they will present your defenses (and, from your recounting, it’s clear that you feel that you have some); and, if your defenses do not prevail, will pay for the damages suffered by the other party up to the limits of your insurance policy.

If you haven’t done so already, put your insurer ‘on notice’ of this accident by contacting them. They’ll take the lead from there.

The Case of the Drunkard’s Damages — What Goes Into a Settlement?

I was hit from behind by a drunk driver in his company truck.my car was totaled and my arm and back was injured.

what is the minimum amount of settlement i should expect?

Daniel Malis Says:

Dear Shreveport,

I’m sorry for your injury and the pain and change of lifestyle you’re probably already experiencing. While it’s a business to myself and my brethren, it’s important for us to remember that for you this is not first an economic issue but one of irreplaceable health.

You’d be surprised how often I hear this question, or the equally important question: ‘what’s my case worth’?

My joking answer, which of course is based in reality, is ‘the maximum amount that an insurer will offer you, and not a penny more.’ The actual answer is far more complex and can’t be answered simply, There are many factors that enter into the value of a case, some obvious, some not.

The obvious ones: you are entitled, in a case of clear liability such as the one you’ve posed, to reimbursement for your past and likely future medical expenses; your past and likely future lost earnings; and out of pocket monetary losses.

You are also entitled to reimbursement for ‘hedonic’ damages, such as the impact the pain of your injury and any resulting temporary or permanent disability and restrictions impose on your lifestyle. You are entitled to the value of services others must render for you if you are unable to carry them out. You are also entitled to receive an award for ‘pain and suffering’, the impossible-to-specifically-calculate value of what you’ve gone through and can expect to go through. The ‘price’ of these items is very difficult to specifically quantify, and will depend upon the extent of your injury; the permanency of your injury and limitations; the objective or subjective medical evidence of your injury (how ‘provable’ your condition is); the relative state of your health before the accident, as compared to after; the kind of work you do, and whether this injury will temporarily or permanently disrupt that work; and many, many other factors.

Having said that there’s no way to quantify these things, experienced trial lawyers do value these claims all the time once the information’s collected, based upon verdict reports; past settlement history; amount of insurance coverage available to pay for your injury; and their own past settlement and trial experience. Valuing a case is awfully tricky business, but a good trial lawyer develops a ‘nose’ for these things, and for emphasizing strengths and weaknesses of your and your opponents’ cases that can be developed, emphasized, or turned to your advantage.

Ultimately, ‘case valuation’ is the ultimate reason why, from a historical perspective, lawyers add far more to the value of a case than their contingency fee reduces your recovery. Get yourself a smart, skilled trial attorney who will advocate your interest and develop this evidence.

Another point to emphasize; if it’s early in the case, there’s almost no way any competent lawyer can ‘value’ your injury in the way you seek, and it’s often counterproductive for you and your life to do so. Often clients ‘suspend’ their life awaiting a big verdict or settlement that may never arrive. Focus your energies not on your expectant settlement, but on treating consistently with your medical providers and getting as recovered as you can, because no settlement can make up for your health.

Best of luck.

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FAQs, Interesting News and Law-Related Rants

Daniel Malis uses this blog to publish answers to frequently asked questions, convey interesting news and make the occasional law-related rant. If you have any questions or want to contact Daniel Malis, please see the Contact page of the MALIS|LAW Website.