Personal injury damages must be proved to an insurance company during settlement negotiations, to an arbitrator or mediator during an arbitration or mediation hearing, or to a judge or jury at trial.  

 

Medical Records:  

  • The main proof of personal injuries are medical records, which the attorney obtains from every treating doctor or medical provider. These records reflect symptoms such as pain, numbness, and physical limitations, as well as the doctor’s observations, such as bruising, damaged skin, and tenderness to touch.

  • The doctor's diagnosis and any prognosis are also contained in the medical records. The records will also indicate the results of any tests or radiology results, such as an MRI report, CAT scan or X-Ray results; and other treatments, such as physical therapy, chiropractic care, and any medications or medical devices prescribed.

 

Medical Expenses:  

  • The total cost of all medical treatments "reasonably necessary" for treatment of the injuries sustained in the accident will be one component of damages of the personal injury claim.

 

Pain & Suffering:  

  • Another component of damages is the length of the treatment period, which is typically used to determine the period of “pain and suffering” damages. Thus, ordinarily the treatments will need to be completed before the attorney can properly evaluate the claim.

  • For a permanent injury, the “pain and suffering” component can be extended to the estimated life expectancy of the injured person. The extent of any claimed permanent injury is ordinarily proved by obtaining a doctor’s opinion as to permanency.

 

Loss Wages & Other "Specials":  

  • Other components of a personal injury claim include loss wages, the cost of necessary homemaker or home aide services during the recovery period, and “loss of consortium” damages claimed by a spouse or minor child. 

  • (In an auto accident case, the cost to repair or replace a damaged vehicle, as well as towing and car rental charges, are part of the property damage claim that is almost always resolved soon after the accident and should not require the services of an attorney. These damages have nothing to do with the personal injury claim.)

 

Consistent Treatment Records:  

  • Since the medical records are the primary proof of personal injuries, it is crucial for the injured party to have regular treatments and to fully inform each doctor of all symptoms and physical limitations experienced. If the doctor takes proper notes, then the medical records obtained by the attorney will provide the best evidence of the extent of the injuries.

 

Settlement of Personal Injury Claim: 

  • Once medical treatments end and copies of all medical records and other exhibits are obtained, a “settlement package” is then prepared by the attorney and sent to the insurance company adjuster.

  • The settlement package contains copies of all medical records, billing records, prescription drug records, any medical opinion as to permanent injury, loss wage records, as well as exhibits (such as accident report or pictures depicting injuries, vehicle damage, the scene of the accident, etc.).

  • Statements of witnesses to an accident are ordinarily obtained by a responding police officer or retail store personnel and are part of the incident report and can also be obtained by the attorney.

  • This settlement package is then sent along with a “demand letter” which summarizes all damages of the injured party and then demands a dollar amount -- which is always approved by the client -- in exchange for full settlement of the client’s claims. 

 

Insurance Company Review of Settlement Package:

  • Once the settlement package is received by the insurance company, the medical records are then reviewed by the insurance company’s medical experts so that an evaluation of the injuries can be made. Any other records, such as loss wage records, are also fully reviewed to determine any discrepancies.

  • Insurance companies always check any and all social media sites that you are connected to in order to try and find information that is inconsistent with the injuries that you are claiming and the symptoms that you told your doctors and that are mentioned in your medical records. Social media sites--such as Facebook, Twitter, Linked-In, Instagram, Pinterest, and others--contain data posted by you or by a friend, co-worker or others that you have been in contact with. Thus, be very, very careful about any social media postings while you have any insurance claim outstanding. Even seemingly innocent postings can be taken out of context at trial or during settlement negotiations to try and undermine your claim for personal injury damages.

  • After a full evaluation of the claim is made, a response to the demand is sent to the attorney, which often consists of a counter offer of a lesser amount. Further negotiations either end in settlement or the filing of a lawsuit, which will ultimately result in mediation, arbitration and/or trial. 

  • The goal of any insurance company is to pay as little as possible for any claim made against it's insured person or company. Thus, it will perform a complete review of the medical records and other exhibits in order to uncover any “red flags” that may diminish the value of the claim. An important function of the attorney is to advise the client on how to avoid any red flags; or, if any red flags exist, to minimize the impact of any red flags.  

 
Proving a Personal Injury Claim

       For informational purposes only. Always consult an attorney to obtain competent legal advice.

Examples of Proof in Personal Injury Claims:

No "Red Flags" Case:

  • Following an auto accident, the driver or a passenger of the car that was struck by the at-fault vehicle is taken by ambulance to an emergency room for treatment; had prompt follow-up treatments with his or her own doctors; was referred to one or more specialists for further treatment, testing, physical therapy and/or chiropractic care; had prescriptions for any medications promptly filled and refilled during the course of treatment; and took time out of work when recommended by the treating physician. So far, so good.

  • The records further suggest that the claimant did not miss any doctor visits, and was seen by his or her medical providers at a frequency that is normal for the injuries claimed. Thus, no “gaps in treatment” and no “over-treating” issues.

  • In addition, at each visit the claimant described his or her symptoms to each medical provider and the symptoms were consistent with the injuries diagnosed by the doctor.

  • Assume also that the patient had no medical history of similar injuries nor any "pre-existing condition".

  • Such a record would be consistent as to symptoms, treatments, medications, and compliance with doctors’ orders. Basically, no “red flags” and the settlement value for this loss is maximized.

Some "Red Flags" Case

  • Compare the above example to a case where the injured person treated for a period of several months, during which time symptoms not mentioned immediately or soon after the accident were brought up weeks or months after the accident; had gaps in treatment that extended for weeks or months; failed to follow-up with treatments such as physical therapy or testing that was prescribed by the treating physician; and/or failed to fill prescriptions for prescribed medications.

  • Obviously this case presents several garden-variety “red flags” that will greatly reduce the settlement value of this claim -- even if the claimant was truly hurt in the accident. 

Avoid Gaps in Treatment

  • Any injuries must be properly documented by medical records. For example, if following an automobile accident the person injured by the at-fault driver promptly receives treatment at an emergency room or walk-in clinic but does not thereafter follow up with medical treatments, it will be difficult to prove the length of injury and any insurance company defending the at-fault driver will refuse to pay a substantial amount for such a claim. 

  • However, if the injured person receives prompt medical care following an accident, then undergoes follow up care at regular intervals with appropriate medical providers until all injuries are fully healed without any “gaps” in treatment, and fully explains all symptoms to his or her doctors, the claim should be fully documented by the medical records and a settlement for full value should be expected.

  • Keep in mind, however, that medical records sometime contain incomplete or illegible notes that can adversely affect the settlement value of a claim. In such a case, the attorney will need to determine how to best address any deficiencies in the medical documentation of the client's claim.