The following are what I consider to be 7 most costly mistakes that can ruin your Colorado injury case. With the exception of failing to call the cops, these costly mistakes apply to all injury cases. This is based on my years of experience in handling these cases, litigating hundreds of cases, and experience and conversations with defense lawyers, judges and jurors.
1. FAILING TO OBTAIN MEDICAL CARE QUICKLY
Many accident victims think they can ‘shake it off’ when they get clobbered by a careless driver or slip and fall. This is especially true in a more minor impact where there isn’t a lot of damage to the vehicles. Between the adrenaline pumping in their veins, the drama, surprise, and wreckage, they do not focus on their injuries. They aren’t dying or covered in blood so they honestly feel that they are or will be “OK” (for more on this here: WHAT YOU SHOULD DO IMMEDIATELY FOLLOWING A WRECK).Men hate to admit that they have been hurt. This is a big mistake.
You should be seen by a health care provider as soon as possible after a car crash or premises incident. Many serious injuries, especially to the structures of the back and neck such as facet joints and discs, might not be apparent for many hours, and sometimes days, after a collision. You need doctors to begin documenting your injuries or pain complaints right away. If you are experiencing dizziness, nausea, confusion, memory loss, or vision problems, you might have a brain injury. Seek help from a professional, experienced in treating accident trauma, as soon as possible.
Coloradoans pride themselves on being tough. It’s not the Wild West anymore but most of us have the ‘buck up” attitude quietly taking pain and getting back on the horse. Many wait until they can’t take the pain any longer before finally getting medical care. Insurance companies, their claims adjusters, and defense lawyers will do their best (or worst) to make you out to be a liar and a fraud to a jury. They will argue that if you were really hurt you would have gotten medical attention right away. Unfortunately, many jurors are strongly biased against injury victims and will use this argument as a reason to minimize any damages award.
Failing to get help right away, or waiting days or weeks, will make it nearly impossible to convince a jury that you have a serious injury. Your health is the most important thing you possess. Get help! If you have a substantial injury not apparent to you, it’s critical that it be diagnosed and treated as soon as possible.
Get medical attention before you go to a lawyer. Obviously your health is more important than any legal claim. It can be the kiss of death for a jury to hear that an injured person’s first act following an accident was to go to his or her lawyer rather than a doctor. If the jury isn’t already thinking, “Which came first, the injury or the lawyer?”, you can be sure the defense lawyer will plant that seed. Regarding medical referrals by a lawyer, they can hurt your case. It is reasonable and appropriate for your lawyer to offer suggestions for a doctor with a particular expertise. However, some large injury law firms and settlement mills refer every client to a particular doctor, surgeon, or chiropractor. This is a problem. Beware the attorney that pressures you to see a particular doctor. Ask what the business relationship is between the lawyer and the particular doctor. Defense lawyers will call attention to any “lawyer directed medical care” as well as the number and frequency of referrals between the law firm and doctor. When the jury concludes that the relationship between your lawyer and doctor doesn’t pass the smell test, they may ignore your legitimate injury claim.
2. FAILING TO CALL THE COPS
There is never a good reason to not call the police when you have been in an accident. More importantly, in Colorado it is against the law to not call the police when a collision involves injuries.
Sometimes the negligent party that caused the crash will plead with the victim not to call the police. They will profess their fault for causing the accident, tell you how sorry they are and that they have plenty of insurance. They might throw in some additional reasons to get your sympathy to convince you to simply exchange information and go your separate ways. No matter how tempted you might be to help them out of whatever jam or consequences result from their careless driving – don’t do it. Consider the possibility that the wrongdoer gives you false information. Or when it comes time to make a claim, they’ve lied to their insurance company about how the collision occurred. Also, it is not unusual for the at fault driver to deny negligence and assert groundless defenses, especially after the insurance defense lawyer gets a hold of them. By having the wreck properly investigated by a police officer, you can discourage this kind of behavior and give your lawyer an expert witness in the form of a police officer to help destroy frivolous defenses.
An accident report prepared by the police is a critical tool your lawyer will use to begin preparing your case. There is never a good reason not to call the police.
3. HIDING PRIOR ACCIDENTS FROM YOUR LAWYER OR DOCTOR
Your lawyer needs to know everything about your case in order to succeed. This includes facts that hurt as well as facts that help. If your lawyer knows the bad facts that you feel might hurt your case, he or she can determine how to deal with them and present them in the most favorable light or at least minimize the damage.
You must tell your lawyer if you have been in prior car accidents. It is a virtual guarantee that the insurance company will know. Few people are aware that the insurance companies maintain huge databases of information that they share with each other regarding prior accidents and injuries. Your lawyer does not have this luxury and must depend on your word. If you fail to tell your lawyer or worse, misrepresent your history, and your lawyer relays false information to the insurance company or defense lawyer, yours and your lawyer’s credibility is shot. Credibility is king. Without it, the insurance company will devalue your claim for settlement purposes because it is virtually guaranteed that a jury will discount the damages of someone the feel is dishonest.
This holds true for your treating doctors as well. Lawyers and juries need to rely on medical testimony that your injuries were caused by this collision. Don’t withhold information from your treating doctors because you think it is unimportant, irrelevant, or won’t come up later. It is a favorite tactic of defense lawyers cross-examining claimants and their doctors about prior accidents not mentioned in the patient’s medical history. Several things are likely to happen: the doctor’s opinion on the collision causing your injuries will be ignored, the doctor will appear foolish or mislead, and you will appear dishonest.
It is worth stating again and underlining for emphasis. Credibility is king. Any decent trial lawyer is an honest person and will not misrepresent anything to defense lawyers, judges, or juries. More importantly, a decent trial lawyer, upon discovering that you have mislead or lied to him or her, will not represent you any further. Doctors and lawyers can do their best to help you if you are absolutely truthful about your accident and your history.
4. HIDING OR MISREPRESENTING YOUR MEDICAL HISTORY, PRIOR INJURIES OR OTHER HEALTH PROBLEMS
You must be honest with your treating physicians and lawyer about your medical history. Being up front and honest about your injuries prior to the accident is crucial. Everything that was stated in #3 is applicable here. Give complete and accurate medical history to your treating physician. Most importantly, they should have a complete picture of your health history to treat you properly. Again, your doctor is going to be called upon to provide accurate diagnoses and causation to prove your case. Bring an accurate history that’s typed, written or burned onto a CD to your treating medical provider’s office so he or she can put it in your file. This will help to destroy any defense argument that you aren’t honest. In addition, your doctor’s opinions gain credibility.
Most doctors, especially busy surgeons, are more concerned with treating your injuries than in helping you prove your case. Here’s a wrinkle on the issue of being honest about your history. Some doctors keep lousy medical records and or leave out medical history information that you may have told them. The result for causation testimony and credibility is the same. Everyone knows that doctors are perfect! So if it’s not in their records you never told them. I have yet to see a doctor admit in front of a jury that he or she missed an important piece of a patient’s medical history. Many doctors would rather leave the impression with the jury that their patient was not completely honest and that they are as aggrieved as the jury that certain information wasn’t forthcoming. A trial lawyer is then placed in the unenviable position of attempting to get his own expert witness to allow that he or she may be mistaken about the history. The result? The doctor admits imperfection in which case the strength of his or her opinions is diminished or doctor doesn’t admit imperfection and you appear incredible. Avoid this no win situation, bring a complete history.
Being honest includes being accurate on the medical office intake forms as well. Defense lawyers, in the legal equivalent of death by a thousand cuts, point out inaccuracies here and there. When inaccuracies, innocent or not, start to add up – your credibility suffers. Some intake forms leave a little to be desired. For instance, a form may ask for prior accidents and not prior injuries. You may have prior injuries to the same part of your body but haven’t had any prior accidents. You fill out the form truthfully. Your effort to be completely honest and accurate results in what appears to be an attempt to hide your prior injury. You want the focus of your case to be your legitimate accident related injuries. The more you have to explain, the more difficult it is for the jury to find in your favor. Bring a copy of your complete history that you can leave with the doctor’s office.
Be truthful with your lawyer about your medical history. Don’t get situational amnesia. Having prior injuries doesn’t mean that you are not entitled to a full recovery for the harm done to you. Assuming your claim goes to court, the defense will have complete copies of your medical records for the past 5 or 10 years. Your lawyer needs to know about your past injuries so they can be effectively dealt with.
5. EXAGERRATING YOUR INJURIES
Pain and suffering. In a case involving substantial injuries this can be the biggest element of damages. Complaining, whining, or pretending you are hurt worse than you really are is a serious mistake. An injury victim who is less than completely truthful and honest is unlikely to fool the insurance company and certainly will not fool a jury. A favorite of specially retained defense doctors is to claim that injured claimants are magnifying symptoms. Dealing with these hired gun doctors who often twist facts and use junk science to bolster the defense is one of the most difficult tasks your attorney may face. Many of these defense doctors earn hundreds of thousands of dollars per year providing medical-legal opinions for the defense. In addition, they are not bound by the Hippocratic Oath. Present them with a genuine symptom magnification case and they will be off to the races. They will make sure that the jury knows you are exaggerating your symptoms for “secondary gain” i.e. you are lying to get money.
Although rare, insurance companies do hire private investigators to follow claimants around with a video camera. Take for example Mr. X who claims that his back injury prevents him from lifting and playing with his infant children. Life is not a dress rehearsal and this can be devastating for a parent. However, Mr. X is captured on video at the grocery store lifting large bags of dog food in and out of his cart without difficulty. His case, although he has legitimate injuries and pain and suffering – is likely destroyed. Why? His credibility for all of his claims is at best questionable and more likely than not zero.
Most accomplished, ethical personal injury trial lawyers will not represent someone who they feel is less than truthful and honest. Bottom line, do not pretend or exaggerate the extent of your injuries with your lawyer or your treating physicians.
6. FAILING TO RETURN TO WORK WHEN ABLE
The reality is that most injured people return to work sooner than they should because they have bills to pay. However, if your doctor has advised you to stay out of work then you should do so. Injury victims, who stay out of work when they have not been told by their doctor to do so, will have an uphill battle proving they should be compensated for their time off. If you feel that you cannot work but you haven’t talked about it with your doctor, you must have this conversation. Make sure you explain to the doctor what your job requires and why you feel unable to work. If the doctor agrees that you should be off work, insist on a note. Whether or not you need it for your employer, you will likely need it for your case. Sometimes the doctor will allow you to return to work with restrictions. In some instances the employer won’t allow folks to work with the restrictions. Make sure you let your doctor know if this situation arises. If the doctor disagrees with you, than you should do your best to work. If you return to work and just can’t do it or strongly feel that your doctor is wrong, get a second opinion.
Injury victims who disagree with their doctor’s opinion on their capabilities are in a tough position. Insurance companies, of course, and juries in the vast majority of cases will agree with the doctor. Staying out of work without clear indication from your doctor that you can’t work, and you will most likely be unable to recover lost wages.
7. FAILING TO KEEP RECORDS, RECEIPTS AND A JOURNAL
Your lawyer will collect your medical records and bills and, when appropriate, submit them to the appropriate insurance company with your settlement demands. He or she will do everything they can to make sure that the list is complete. However, it is important that you keep copies of your bills and send them to your lawyer. Keep track of the name, address, phone, and specialty of all medical providers. Also, make sure you keep receipts for any injury related expenses such as prescriptions. It’s a good idea to record your mileage to and from medical offices as well. You and your lawyer want to make sure that nothing falls through the cracks.
Sometimes its difficult to figure out from the medical records alone all of the health professionals you were seen by. You and your lawyer should communicate regularly and compare lists of doctors and bills. A lawsuit can be summarized by describing it as a series of deadlines with penalties attached. Judges can strike claims for failing to disclose all of your doctors, records, and bills by certain deadlines. You, your lawyer, and your lawyer’s malpractice carrier don’t want this to happen.
In addition to putting all your records and receipts in a dedicated folder, you should keep a detailed journal. A spiral notebook works best. For at least several weeks following your accident, record how you are feeling and how your injuries affect every aspect of your life on a daily basis. Resolution of your claims can take many months or even years. As time goes by folks sometimes forget the extent of their pain, suffering, and limitations their injuries have placed on them. For example, Mrs. X has a shoulder injured in a t-bone car accident. After a year and half of conservative care, she finally gets shoulder surgery to repair her torn rotator cuff and reduce her pain. Fortunately for her, she has a good result and has little pain or limitations after surgery. When her case finally gets to trial two and a half years after the collision, she has forgotten how she couldn’t use her arm to wash her hair or sleep on her side. Had she kept a journal, she would be able to remind herself of the pain and limitations – and better present the harm done to her to the jury.
Journals kept at the insistence of a lawyer, and addressed to him or her, are protected by privilege. They can be invaluable for you to refresh your memory and for your attorney to truly understand how your injuries have affected you. Keep #5 in mind when making entries and don’t exaggerate.
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Seven Costly Mistakesthat Can Ruin YourColorado Injury Case "
Law Office of D.J. Banovitz, L.L.C. 7887 E. Belleview, Ave., STE 1100 Englewood, CO 80111 Tel: 303-300-5060 Fax: 303-997-1900