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Pandemic Fallout: Opportunities & Risks for Personal Injury Claims

Posted on behalf of RizkLaw on May 26, 2020 in Personal Injury

stethoscope and penEveryone has, and will continue to, adjust to accommodate COVID-19 realities. Personal injury claimants must also adjust. Those who pivot effectively could be pleasantly surprised. Those who don't may end up without the treatment needed and empty-handed. Which end of the spectrum your claim lands will depend, in large part, on whether a claimant can harness pandemic opportunities or become swept away in its' whirlwind.

What Do “Damages” Mean?

Damages are monetary compensation for injuries caused by another. Damages fall into two categories, economic and non-economic. Economic damages, as the name implies, are economic losses. In the personal injury setting, economic damages usually consist of medical expenses, wages lost from missing work, and loss of future earning capacity.

Let's take a closer look at the wage loss portion of economic damages. Time away from work isn’t enough to justify a compensatory wage loss award.  A treating physician's written authorization for time off work for a specific period of time is also required. When that note expires, if you’re still unable to work, it’s your responsibility to obtain another before the insurer, paying wage loss, cuts off reimbursement. If you’re considering working through pain or returning to work early to make ends meet, it’s critical to tell that to your doctor. At very least there will be a record in the charting to back up your story. That’ll be very helpful if your case goes to trial when the other side tries to argue that you worked because you were fully able to work. 

Turn your attention to the second main damage category--non-economic, or as they’re commonly known, “pain and suffering” damages. Non- economic damages are less tangible than economic damages and thus harder to prove. Plus, many jurors and even judges harbor a secret bias against awarding pain and suffering damages. To those decision-makers, “pain and suffering” is code for malingering, or "getting something for nothing". To counter the elusive nature of pain and suffering, and to help inoculate it from decision-maker bias, transform "pain and suffering" into a medical diagnosis supported by testing and real-time chart notes. First, see your most trusted primary care doctor. Explain your symptoms and ask for a treatment plan tailored to lessen pain and suffering symptoms. Then ask for a referral to a clinical psychologist with expertise treating the type of symptoms you experience (e.g. PTSD, Anxiety, Depression). A diagnosis from a psychologist helps bring pain and suffering damages “out of the mist” and makes them scientific. Corroboration from a psychologist helps courts objectively recognize the non-economic damage you suffered from your injury.

Pandemic: + or - ?

The pandemic has reduced access to health care after an injurious event. Less health care leads to worsening injuries. And worsened injuries, theoretically, should lead to higher awards and settlements. But there is more to consider.

While lack of treatment can severely undermine recovery, insurance defense lawyers and claims professionals will blame the lack of treatment on you citing your duty to “mitigate", or lessen damages, to the extent reasonably possible to do so. And, untreated injuries necessarily lack documentation needed to prove physical harm related to the injury incident. In addition, decision-makers frequently see medical bills and chart notes as a touchstone for how much to award in non-economic damages.  Pandemic realities increase the importance of real-time documentation and treatment to preserve your injury claims, but how?  

Preserving Your Claims During A Pandemic Era

Preserving your case during this pandemic requires medical self-advocacy. Your word alone is not enough. In personal injury cases, the burden of proof is on the plaintiff to prove injuries and damages by a "preponderance of the evidence” (i.e. more than 50% likely your account is the truth). You can help this effort by journaling your personal progress throughout the injury, so you have a written record of it in real-time. Address each diary entry to your attorney so any unfavorable entries may be kept private if needed (as attorney-client communications).

Obviously, documenting injuries with a health care provider is the gold standard. But getting traditional, in-person doctor’s appointments have become more challenging during the pandemic, but things are changing. More and more healthcare providers are offering virtual appointments via Zoom, or other forms of telemedicine. In many cases, the stress and time required to be examined by an M.D has been greatly reduced. The key is to consistently seek appropriate medical treatment in whatever way available, keeping in mind the pitfalls of virtual appointments. It’s on the patient to fill the gaps created by virtual medicine by telling the doctor how the injury has affected your life in ways that may not be obvious. Whether it’s not being able to walk your dog or an inability to sleep, these little details are crucial for painting a bigger picture of how this injury has disrupted your life.

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