Mediators often come across fact patterns at personal injury mediation where the value of the case goes up or down. At the heart of these fact patterns is the damages, and in typical accident cases, these are found in the medicals. It cannot be stressed enough how important medicals are. A medical record that reflects the allegations in the complaint can help increase value of the potential recovery; the medical record that does not reflect complaints alleged will tend to reduce the likelihood of recovery by plaintiff. This could mean the plaintiff failed to tell the doctor about all the injuries for which the plaintiff is making a claim. An example of this is not mentioning back pain in the first month following an accident and then beginning to treat two months after the impact.
Telling the doctors and those taking the medical history about prior injuries and prior accidents can also come back to raise questions that stand in the way of settlement. Similarly, the plaintiff could be horribly hurt and in extreme pain but may want to portray themselves as tough so, as it happens, such plaintiff does not complain about the pain actually presenting at the time of medical examination. They may really be in pain but not state this when the medical history is taken.
Sometimes there is evidence of the exaggeration of the severity of the crash or impact. While it is true that any impact can cause damage to the human body, generally the pictures of the accident, for example, the damage to vehicles, is often consistent with the history provided by the plaintiff. When the adjuster or the defense counsel have a basis to contend the severity of the crash is exaggerated, that also tends to raise questions about the veracity of the witness (meaning the plaintiff).
Near the top of the list is posting on Facebook or other social media photos and accounts of personal activity that reflect not being as injured as claimed. For example, a plaintiff may tell the doctor (and plaintiff’s lawyer) he or she is in excruciating pain and unable to participate in activities of daily living, but then is documented as regularly participating in a Thursday night recreational soccer or basketball game. There may be witness accounts of the plaintiff carrying a multi-gallon bucket of primer or paint up a ladder and actually painting the home’s exterior. Some who are injured can still do these activities with pain, however, this tends to raise credibility questions, much like when the plaintiff is perceived as exaggerating the effects of the injuries. While it is always possible the account of the plaintiff is valid– or is presented in good faith from the perspective of plaintiff– perception by the adjuster is a large chunk of the equation.
Claims about credibility may be raised that the plaintiff shared on social media about how he or she would plan to spend the money from the lawsuit on a lavish trip or buying expensive accessories. Having already spent this money would also be harped on by the defense.
Similarly, another problem that can come up right in front of the mediator, or that could be brought up by defense counsel, is prior injuries, accidents, or claims that were not previously mentioned. This goes to the veracity of the plaintiff as well as the quality of testimony that could be expected at trial. Recorded statements from the plaintiff or the defendant can also come back to have a real impact on the settlement value. Statements may concede liability or damages.
The plaintiff who does not follow doctor’s orders as directed also may be seen by the adjuster or defense counsel as having a weaker claim.
Another question that is raised by the defense or adjuster can involve waiting too long after the accident to seek medical treatment. The cousin of this common concern is gaps in treatment, that is, a plaintiff claiming injury who treats for a period of time, then ceases treatment for a period of time, then begins treatment again. Missed medical appointments such as for MRI, CT Scan, follow up treatment, physical therapy– these all add up to foster an impression of the plaintiff.
Many of these circumstances and others arise out of a plaintiff who goes about making a statement to the insurance company before consulting with an attorney. Everyone has the right to counsel and some opt not to assert this right when discussing how the injury happened or the extent of the injury.
These are just some of the concerns that might be raised. An astute mediator will help both sides by conveying these concerns and responses as relates to them. There can also be factual misunderstandings the mediator can help to resolve. There are many situations where facts come up at mediation that were not known before.
About the author: Andrew Tolchin is an attorney and mediator in the greater Houston area, and founder of 713 Mediator, LLC and Tolchin Law Firm, PLLC.