I just got off the telephone with a client of mine who was quite upset over how her personal injury case was progressing. It wasn’t her attorney, she explained. What bothered her was that the accident occurred more than four years ago and the case was still going on. A lawsuit had been filed two years ago, and the trial date had been continued again because of a late motion filed by the defense.
Why was this client of mine upset? Well, there was no dispute that the defendant caused the accident, a fairly significant rear-end accident. And there was largely no disputed that my client sustained a severe injury to her neck, where now two surgeons are recommending surgery to re-stabilize the disc herniation and deformity that is now present on her MRI scan.
Yet, the insurance company for the other driver continued to cling to the argument that this was only a minor soft tissue injury that should have healed within 3 to 4 months. Understandably, my client was livid that the carrier was pursuing this line of defense. What also infuriated my client was that the insurance company was trying to argue that she had a pre-existing neck condition so the auto accident in question was not the cause of her ongoing problems and the more than $40,000 in past medical charges so far.
The at-fault carrier was relying on a single notation in my client’s medical records. A chart entry made 3 years before the accident by my client’s family doctor where my client complained of neck pain and some hand numbness after suffering a minor strain picking up boxes at work. It did not matter that my client stated this injury healed fully and that she had no neck pain complaints for 2 years before the accident. My client simply could not believe that the insurance company was taking this route since it seemed so preposterous to her. In my client’s view, this defense also inferred that my client was lying about her prior injury. And this infuriated her even more.
To support its defense, the insurance company hired a well-known neurologist who examined my client, reviewed her records and proclaimed that yes indeed she had a pre-existing condition and it was this condition that was causing her current problems. This defense neurologist also stated quite convincingly in his deposition that the neck injury my client received in the auto accident should have cleared up within 4 months because most people heal within this time fram. So if my client was still having problems beyond 4 mos. following the crash, it was her pre-existing condition and not the accident that was causing it.
So I found myself again explaining to a client that this defense asserted by the at-fault insurance company was so common in my practice that I have taken the liberty of drafting a stock letter that explains basically what I’m saying here. The insurance company will use ANYTHING in your prior history to minimize or defeat your claim. It will hire any doctor (and believe you me, there are a number of well-credentialed doctors who will gladly help) to help it convince a jury that the accident victim’s symptoms or problems are not the result of THIS accident, but a prior one, or a prior condition, or a ….. You get the point.
But when it’s your case, and you’re the one who has gone into debt and lost a significant time from work, and your pain is unremitting and constant, and it won’t go away…. it’s hard NOT to take the insurance company’s tactics personally. I would be angry too. Very, very angry.
It took me some time and effort to calm my client down. I had to explain that her case was not unusual and that the only thing we must do is continue preparing for trial. That is the only thing that is in our control. I told the client that I will do everything I can to defeat the carrier’s arguments, but there is significant cost and risk involved. Of course, I will do everything I can to try and settle the case for a fair sum, but often times that is not possible. Especially, if the carrier takes a very aggressive approach to defending the case (which is happening to my client’s case here). But that is our system of justice. Even the insurance company has a right to have this case decided by a jury. And a big part of my job is to make sure that insurance company ultimately regrets that decision.
Related posts: