Pam: One mistake you mention, is signing a blank medical authorization. How can that be a mistake?
Barry: Well, insurance companies really do have a legitimate interest in getting your medical records to investigate what kind of injuries you have and how that’s related to the accident. And the problem that comes in, is that when you send them a blank authorization with your signature on it, you really give them carte blanche to go digging through your medical history. And it’s really not limited very specifically to the care that you’re claiming is related to the accident. They have the ability, then, to go looking into medical care that you think is unrelated or that really pre-dates the accident.
Not too long ago, I was representing a gentleman who was rear-ended in a car accident, and had injuries to his neck. And when I sent my letter of representation off to the insurance company, I got a response back which referenced his history of low-back pain.
Now my client wasn’t saying that his low back was hurting in this accident, just his neck. But he had been working on the case himself, he’d signed an authorization, and very clearly the insurance adjuster had gotten some medical records which made clear that he had a history of lower back pain, even though that’s really not the issue that we’re pursuing in the case.
At this point, I’m dealing at a little bit of a disadvantage to the insurance company because they’ve had this authorization, and I don’t know what they’ve used it for to go investigate my client’s past medical history. So it’s really created a tremendous amount of difficulty that’s, unfortunately, a little unnecessary in this case.
Pam: Another mistake you mention is failure to preserve key physical evidence. What do you mean by that, and how can that be a mistake?
Barry: So what key physical evidence is, is some item that is related to the accident in some way. If you get bit by a dog, it might be the clothing that you wore that has the dog’s teeth marks on it. It may be, if you slipped and fell on oil, it may be the coat that you were wearing that still has the oil stains on it.
When you have items like that, they can really be things that help you prove your case in a powerful kind of way. And if they’re gone, you have to keep in mind that you have the burden of proof, in any kind of civil case, and it makes it that much more difficult for you to carry your burden if the evidence is gone.
So if you try to handle the case on your own, you don’t necessarily know to hang on to these things and as the case matures and eventually you find yourself in court, you may find yourself having problems you wouldn’t have otherwise have because the evidence is gone, and you just didn’t know, you didn’t think to hang on to it.
Pam: Okay Barry, here’s one that you call the ‘single worse thing that you can do’ to harm your case. And that is exaggerating injuries. Why is that?
Barry: At that point you really fall into the stereotype that insurance companies have tried to build regarding people that have been involved in accidents and for making claims and filing lawsuits. And that’s you’re out to get something for nothing, that you’re exaggerating, you know, how bad things were, and it really becomes a kiss of death.
In these kinds of cases, your credibility is always going to be a critical, critical item because nobody has got to walk a mile in your shoes, in terms of how badly you were hurt and how this has impacted your life. But if you start exaggerating about that, your credibility goes out of the window.
And people don’t necessarily do it deliberately, in the sense of telling lies for a specific advantage to gain something. A lot of times people feel like they need to impress upon people just how bad something was when they don’t get a reaction to them that acknowledges that.
So if you do this in the context of a recorded statement to an insurance adjuster, it becomes part of the record of the case. And it can really be very damaging to the case.
To a greater or lesser extent, it’s even worse in your doctor’s office because if you start exaggerating how badly you’re hurt and how much you’ve been impacted to your doctor, your doctor actually has ways of testing and verifying the kinds of claims that you’re making. And they are very wary of people being involved in these kinds of cases and exaggerating what’s happened to them. And if they think you’re doing it, they’ll note it in the records. And believe me, the insurance company’s going to find that. And it’s going to be just devastating, devastating to your case.
Beyond just what’s in the medical records. Insurance companies also have the ability to do surveillance on you. I call it spying on you. That involves actually hiring an investigator to follow you around and videotape you. And if you’re caught doing something on videotape that you try and tell the insurance adjuster ‘I can’t do’ it’s going to be fatal to your case. I mean really, really devastating.