Tales From the “Dark Side” – Secrets from a Former Insurance Defense Attorney

Bad Faith by Insurance Company | Insurance Defense

By Arthur D. Leritz

May 21, 2017

Having recently ended an eleven year tenure as an insurance defense attorney, I can now share how I identified potential weaknesses in an injured party’s case by noting mistakes that he or she would   unwittingly make during treatment.

Now that I have left the “dark side,” and started with Adler Giersch I want to share these secrets with you so that you will be better prepared, if and when you find yourself in this situation.  Any one of these can turn your case from a good one into one that could be coded “SIU”[1] by the insurance company, thereby making a case more difficult to settle.

Not Following the Treatment Plan

It seems obvious, doesn’t it? If your doctor recommends a specific course of treatment, then follow it. I used to often read through medical records and see recommendations made by healthcare providers that were not followed by the patient. For example, things like “patient referred for MRI two months ago, has yet to set appointment” or my absolute favorite: “patient is not complying with treatment recommendations.” Upon seeing this, the insurance defense attorney is now free to argue that you must have healed from your injuries and any treatment after the date of the chart note is not necessary. Alternatively, it will be argued that if you had complied with treatment recommendations you would have been done treating sooner and your injuries, if any, would have resolved sooner. These are all ways to reduce the reasonableness of the compensation claim.

Accurately Report Your Injuries

Getting involved in an automobile collision can be a very traumatic experience. All of a sudden, you will have to deal with doctors, insurance companies, bills and more correspondence than you are used to. In addition, patients can feel rushed, especially in an Emergency Room setting, with doctor appointments, but it remains very important to accurately report to your healthcare provider all of your injuries, even if some of your symptoms seem minor in  comparison.

For example, I once had a case involving an injured motorcycle rider.  He had a neck, mid back, and a right shoulder strain/sprain. He also had a sore ankle, but apparently figured that it would resolve on its own. So, he did not report the ankle problem to any of his medical providers. Unfortunately for the motorcycle rider, his ankle did not resolve on its own. In fact, the other injuries resolved 2-3 months later, but the ankle turned into a persistent problem. The first time he mentioned the ankle problem to his doctor was four months after the collision. Eventually, the ankle became such a  problem that he needed surgery. The main defense to this ankle injury case was that the motorcycle rider did not sustain the ankle injury in the collision – otherwise he would have reported it to the ER doctor immediately after the traumatic incident and then his subsequent medical providers. At the deposition of his primary care provider, even his own doctor could not relate the ankle injury to the motorcycle collision, because of the gap of time from the collision to the first time the ankle injury showed up in the records. As a result, the motorcycle rider’s attorney was unable to pursue that part of his claim and all medical bills relating to that ankle injury were not recovered.

Unfortunately for the motorcycle rider, since he downplayed his symptoms and did not report it, it looked to the insurance company that the ankle was not injured in the collision. The lesson here is simple: be accurate and thorough in reporting all your injuries, major and minor.

–  Additional insights from Mr. Leritz can be found in chapter 24 of From Injury to Action: Navigating Your Personal Injury Claim, by attorney and Adler Giersch PS managing attorney Richard H. Adler.  Click here for a link to order your copy today!

[1] “SIU” stands for Special Investigations Unit. It is a special section within an insurance company’s organization that handles cases with elements of fraud. Any one of these subtopics within this chapter could put your case into SIU.