CORONAVIRUS UPDATE: What We Are Doing to Protect Our Clients

Know What Information to Provide and When

informationThe management of personal injury claims against opposing insurance company adjusters and defense attorneys is primarily a matter of information management – knowing what information to provide (or not provide) and when to provide it to achieve optimum results for a client.  There are many pitfalls in this process, and it’s one of the most likely places where individuals handling their own claims or inexperienced attorneys will run into problems.  There are two key reasons for this.

Accurate and Truthful Information

First, the information provided needs to be accurate and truthful.  There is probably nothing that will create more problems for a personal injury claim than providing information that is not truthful.  An individual handling their own claim who is not truthful will arouse the suspicions of opposing insurance adjusters and defense attorneys and immediately cause them to question anything and everything about the claim.  When sitting down with a client to prepare for a deposition, the first thing that an experienced attorney will advise the client is, “Tell the truth.”  An inexperienced attorney who develops a reputation with the insurance companies and defense attorneys to provide misleading information creates an enormous problem for themself and all their future clients.  Credibility is everything.

That said, not all information is relevant to a personal injury claim, and providing irrelevant information may create landmines for the case that become difficult or impossible to defuse.  Much of the information sought by insurance company adjusters and defense attorneys in an injury claim is sensitive and personal – it always includes medical records describing the claimant’s personal medical history and may also involve employment information, tax records, and other highly personal information.  But the insurance companies and the defense attorneys they hire are not going to voluntarily limit themselves just to the injury claimant’s records that are directly and legally relevant to the current claim.  They are happy to go on “fishing expeditions” to see what embarrassing or contentious information can be turned up to be turned into impediments for the claim.

Know When to Present Information

The second key element is timing – information relevant to a personal injury claim needs to be presented at the best time for each piece of evidence.  For example, at an early stage in a personal injury claim, the insurance company will typically “set its reserves” for the claim – this is an internal accounting and bookkeeping procedure where they try to estimate a “ballpark” value for the claim.  As an accounting procedure, the insurance company can predict future cash flows for claims settlements and run their financial situation more smoothly.  This stage often also influences who the claim is assigned to – a claim that is seen as likely being a large dollar-value claim is more likely to be assigned to a senior, highly-experienced claims adjuster than is a claim seen as having relatively minor value and being straightforward in its details.  For setting its reserves, the insurance company primarily needs to know what injuries the claimant obviously sustained and how they’re currently doing with their treatment and recovery for those injuries.  They don’t need complete copies of medical records and billings at this stage – just an overall idea of the scope and extent of what the damages are likely to be.  Though if an early medical summary report is available describing the primary injuries, or a large hospital bill has already been received for an initial hospital stay, these may be useful to provide to the insurance company as a way of impressing upon them the severity of a serious injury case.

Complete records are more often provided later in a claim, when there has been an opportunity to collect all the records, thoroughly analyze them, and understand how all the pieces of evidence fit together.

Information During Initial Investigation

In addition to generalized descriptions of a personal injury claimant’s physical injuries described above for “setting reserves,” early stages of a personal injury claim will usually involve exchanges of information related to how the injury incident occurred, who the people or companies are that may be legally liable for those injuries, and what insurance policies are available to provide compensation for the damages the claimant sustained.

Evidence that will be available to all the parties is usually exchanged openly.  A police traffic collision report, for example, is going to be equally available to all the people involved in the accident, so it’s common for one party who gets a copy of the report – whether it’s a claimant’s attorney or an insurance adjuster – to share it promptly with others involved in the claim.  Sometimes there may be an advantage to waiting a bit – for example, to first have a private investigator interview independent witnesses listed in the report – but ultimately, this evidence will be available to all parties.

Figuring out who may be legally liable for an injury incident generally involves information about the incident – who was driving, who was negligent -- and the relationship of the people in the incident with other people – who owned the negligent driver’s vehicle, who was the negligent driver employed by at the time of the incident.  Identifying these individuals and perhaps other types of entities – a corporate employer of the negligent driver, a government entity responsible for a defective roadway – then points next to the potential insurance policies and insurance companies who may provide coverage.  Generally, the more quickly this information is shared, the better.  Everyone will eventually know it, and knowing it quickly will keep a claim moving forward.  If there will be legal arguments over the details, it’s usually better to know that sooner than later.

Information During Primary Course of Medical Treatment

For the same reason that it’s important to inform an insurance adjuster on an injury claimant’s injuries and scope of treatment and medical bills – to set reasonable reserves early – it's also important to keep the adjuster advised of updated information during the course of medical treatment.  This is especially true if the injury victim’s condition takes a turn for the worse and/or if their course of medical treatment is taking a direction that wasn’t initially anticipated.

For example, many folks who sustain neck and back sprain injuries in a motor vehicle accident will have an initial course of medical treatment that looks something like:

  • An initial emergency room or urgent care visit;
  • A visit or two with a primary care physician;
  • Some x-rays to rule out serious injury;
  • A course of rehabilitative care such as physical therapy or chiropractic care over several weeks.

Although every client is unique, every injury is unique. Every course of medical care is unique. This would be a common pattern for a mild to moderate neck or back sprain injury’s initial course of medical care.  If an insurance adjuster has been informed that this is the type of injury a victim sustained, then this is more or less the course of care and injury description that will be used to set the claim’s dollar-value reserves.

However, if a personal injury victim who had this initial diagnosis has symptoms that persist or even worsen during this initial course of “conservative” care, their doctors may refer them for additional testing or treatment.  For example, they might be referred for an MRI examination of their spine. If that MRI exam were to identify other problems – such as spinal disc injuries -- then they are very likely to need different or additional medical care.

Since this new diagnosis and likely new medical care may substantially change the final value of the personal injury claim – even if that exact final value isn’t yet known – promptly advising an insurance adjuster of these new diagnoses and treatment plans will allow the adjuster to correspondingly adjust upward the “reserves” that have been set for the claim.  When they eventually receive a settlement demand package that includes medical records and billings with these additional diagnoses and treatment expenses, it will not come as a shock to the adjuster and will increase the likelihood of a prompt and fair settlement.

Information at the Settlement Demand Stage

Sometimes it will become apparent to an experienced personal injury attorney that a claim is almost certain to be headed toward a lawsuit and litigation. It may not be helpful to the case to present a settlement demand before heading in that direction.  But in most personal injury claims, a settlement demand is presented to the insurance company, which is usually the point in time where a complete package of evidence and analysis is presented to the insurance company.

To be useful in achieving a full-value settlement, this “demand package” will usually contain any and all information relevant to an accurate evaluation of the claim.  This is likely to include:

  • Investigative information such as traffic collision reports or other incident reports;
  • DMV or other relevant government records on negligent parties;
  • Witness statements;
  • Photographs of the vehicle damage;
  • Relevant medical records and medical billings;
  • Payroll or employer records establishing wage loss;
  • Business records establishing earnings losses for self-employed injury victims;
  • Photographs of visible injuries, etc.

Some pieces of information may initially be held back for use later in settlement negotiations or anticipated litigation, but most settlement demand packages will “lay all the cards on the table.”

In addition to describing the injuries and medical treatment resulting from the injury incident, a settlement demand will often address issues of pre-existing conditions or unusual susceptibilities.  Insurance companies share data with one another on past injury claims – if an injury victim had another auto accident injury or a workplace injury several years in the past, then the current insurance adjuster is highly-likely to be aware of it now.  It is often best to address these issues head-on and explain why – medically and legally – they don’t apply to the current claim.

Information During Litigation

Unlike at earlier stages, during litigation information must be shared with the defense attorneys hired by the insurance company.  There’s an entire, highly-detailed process for doing this called “discovery.”  This process includes:

  • Form Interrogatories -- “Interrogatories” is just a legal term for written questions. There are court-approved standard interrogatories that come as pre-printed forms, and these are the most commonly used type.
  • Special Interrogatories -- If a plaintiff or defendant believes that the standard form interrogatories don’t adequately cover the bases on questions they want to ask, the parties can also draft their own questions.
  • Requests for Production of Documents -- These “RFPs” ask opposing parties to identify different categories of relevant documents in their possession and provide copies to the requesting party.
  • Demands for Independent Medical Examination -- In most injury claim cases, the defense will have the opportunity to have an injury victim examined by a doctor of their own choice.
  • Subpoenas -- Subpoenas are issued to people and entities who are not parties to the case to appear and testify and/or provide copies of requested documents. Typically, defense attorneys in injury claim cases will use subpoenas to collect copies of a plaintiff’s medical records and billings directly from the medical providers, and sometimes work information or other documents.
  • Party Depositions -- The plaintiff in an injury claim is often deposed to collect their testimony on aspects of how the injury incident occurred and what impact it has had upon them. Sometimes a defendant will be deposed if liability for the injury incident is contested or for other reasons.
  • Witness Depositions -- Witnesses to an injury incident may be deposed to collect their testimony regarding how the accident happened; an injury victim’s spouse may be deposed to provide evidence of the impacts of the injuries on the victim’s life, as well as upon the spouse as relating to a loss of consortium claim.

Many other types of discovery may take place during litigation – these are just the most common types.

Much of the “information management” going on during litigation will make certain that only information legally relevant to the case at hand is being shared.  For example, some interrogatories may request information or documents that are not relevant or admissible and must be objected to upon specific legal grounds.  Defense attorneys may seek to subpoena medical records not relevant to the injuries sustained in the current incident.  It’s common for these situations to result in lengthy, detailed correspondence between the opposing sides before the agreement is reached upon what information will or won’t be shared.  Sometimes, when the plaintiff’s and defendant’s attorney can’t come to an agreement, the matter may be brought before the court, asking for a judge’s order specifying what information must be provided and what information will remain protected.

An experienced personal injury attorney will be fully aware of what information to share, what information to protect, and when information should be provided to achieve a full and fair resolution of a client’s personal injury claim.

See more on insurance companies' claim tactics, and how an experienced lawyer should deal with them:

Photo by Kaleidico on Unsplash

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