How Overtreating Can Hurt the Value of Your Injury Claim

overtreating injuries after the accidentOne of the most critical elements in any legal claim, whether civil or criminal, is the credibility of the testifying witness or claimant.  Injury claims are not an exception to this rule, and any good personal injury lawyer should urge his or her client to not get more treatment than they need, or not to continue getting the treatment whcih is clearly ineffective and does not help their pain.

An honest, reasonable victim will likely recover more and sooner for his injuries. This is exactly why it is so important to make sure that you do not receive more treatment than you should. Some doctors and especially the chiropractors are tempted to provide more treatment than necessary to the injured patients, especially if these doctors work on the lien basis, so that they can receive a larger chunk of the settlement at the end. The problem is that once the claims adjuster receives an unreasonably high bill from a doctor or a chiropractor, he will necessarily suspect fraud or as they call it in the insurance industry “orchestrating” more treatment than reasonable and necessary, and he will submit the records received to their own medical expert for evaluation. This will result in significant delay of the settlement process of an injury claim and will likely cast doubt on your entire claim – something that an injured person should avoid when dealing with insurance companies.

Being reasonable and honest about your injuries and your pain, without exaggerating your symptoms is the best strategy to recover a fair compensation for the injury accident that you were involved in, whether you settle your case early on, or at mediation, or right before trial, or whether you have to testify at trial in front of the jury.

California Injury Law: Medical Billing and Settlement Damages

Since the Hanif v. Housing Authority (1988) and Nishihama v. City and County of San Francisco (2001) cases have been decided, the insurance companies have successfully argued over and over that the personal injury claimants should not be entitled to recover damages based on the actual charges for the necessary medical services received, but only for those actually billed to the private health insurer.

In other words, if you have been injured in an accident, have received emergency room care and other medical care totalling $20,000 in medical expenses, but your health insurance provider (such as Blue Cross) that has a special arrangement with the hospital, reduced the bill to $8,000, the third party insurance company for the driver at fault would normally argue that your damages should be based on the latter figure of $8,000 rather than actual billing charges.

However, this argument on reduction of damages might not have much validity any longer. In a recent case Olsen v. Reid, filed on 6/23/2008, the above case decisions and their logic has been condemned and practically shattered by the fourth district appellate court. The court passionately supported the rationale of the long standing “collateral source rule” in California, which states that the recovery of the victim in an injury case should not be reduced just because some of the damages were coverd by a collateral source (such as health insurance company).  The court criticized Hanif and Nishihama decisions, insisting that it is appropriate for the jury at an injury case trial to hear evidence as to the full amount of the injured claimant’s damages and not the reduced amount that was billed.

The forth district emphasized that the more recent cases held that if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor (for example, the driver at fault), such payment should not be deducted from the damages which the plaintif would otherwise collect from the defendant.

This recent decision significantly weakens if not eradicates, at least for now – until and unless the California Supreme Court makes a ruling on this issue, the Hanif/Nishihama argument that the insurance companies like to use to reduce their settlement offers.

Releases of Liability for Injuries in California

Many gymnasiums and other facilities where there is a risk that  customer will suffer an injury, have those customers sign a release of liability which is supposed to release the business from any and all liability for injuries and damages sustained by the customer/visitors while on premises. However, not all releases are valid and enforceable as the power of the release to preclude and injury claim depends on the scope of the release and its applicability to the particular incident.

Generally, in order for a release of liabilty to be held enforceable and prevent an injured from having a legal action for personal injuries (1) the release must be clear, unambiguous and explicit in expressing the intent of the parties; (2) the act of negligence that results in injury must be reasonable related to the object or prupose for which the release is given; and (3) the release must not contravene public policy.

The second element is the one that is subject of contention and litigation. To illustrate, in one case the court considered a situation where a vistor of a car race signed a release that purported to release the facility from any injuries sustained by the viewers as a result of the automobile racing. One visitor was injured when one monitor located in the area fell on his head after he tried to adjust it. The court concluded that because the release was not intended to release the premises form this kind of injuries and was only limited to injuries related to the automobile race and the dangers that the race cars directly pose to the viewer, the release did not apply to the claimant’s injuries, and he was allowed to proceed to recover damages.

However, in other case, a gym customer was not allowed to recoverfor injuries sustained when he slipped and fell in the shower, because, as the court pointed out, the release executed by the customer with that gym, provided that the customer releases the facility from liability for any and all injuries, whether related to exercising or not, while on premises.