Bodily Injury (Nature And Extent)
The single most significant component of compensatory damages will usually be the nature and extend of the bodily injury. This will usually be determined from the medical records.
Practice Pointer: You must read every word of the medical reports and records. Many attorneys fail to take the time needed to understand the nature and extent of injury. A good lawyer will make every effort to secure and then read every record generated by the client's treatment.
The claims adjusters will have the medical records reviewed by someone with a medical background. The claims adjuster will likely have a detailed memorandum prepared by this medical reviewer. You must be able to discuss the injuries and treatment in detail. In most cases, this should not present a problem, as you can look up medical terms online, and you can seek clarification from your client's physicians.
You must also ask the treating physicians if your client's injuries are probably permanent. If it is "more likely than not" (50.1% likely) that the injury is permanent, the physician should write a report describing the nature and extent of the permanent injury.
Be sure to look for errors in the medical records. Unfortunately, it is not uncommon for the medical history to omit any reference to the incident causing injury, to include an incorrect date of injury, or to refer to the wrong part of the body as being injured, such as referring to the client's right arm when it was the he left arm that was injured.
Practice Pointer: Under HIPAA, the patient has the right to demand his
physician correct an error, or insert the patient's statement of fact into the record. This provision in HIPAA does not pertain to the opinions of the physician. 45 C.F.R. §164.526 et. seq.
Pre-existing conditions and prior claims are fertile grounds for the defense bar. Inquire about prior injuries, prior claims and pre-existing conditions. It is important to ask at the initial interview to what extent the client has seen healthcare providers and/or made prior claims which might diminish the value of your claim. Most prior claims are entered into a master data bank maintained by the insurance industry. The claims adjuster with whom you will attempt to negotiate a settlement will have access to this data. You need to know at least as much about your client's history of prior injuries and claims as the claims adjuster.
Practice Pointer: Many people obtain regular care, also known as
"maintenance" from chiropractors and other practitioners. This can reduce the value of a claim, especially if the maintenance was close in time to the collision and involved the same body part injured in the collision. This is particularly important if suit is filed as the defense has subpoena power to secure these records.
Be aware that in the absence of an opposing expert, or in a case of straightforward injury, the plaintiff may testify to the causal connection between an automobile accident and injury even when medical testimony fails to establish causal connection expressly. Todt v. Shaw, 223 Va. 123; 286 S.E.2d 211 (1982). This tactic would likely fail if the defendant were to call an expert to testify that there is no causal connection. The need for the plaintiff to hire a medical expert is also necessary where the case is medically complex. McMunn v Tatum, 237 Va. 558 (1989).