Fine Print And Impersonal Injury: Analyzing Tactics Insurance Companies Use To Deny Car Accident Claims
We pay insurance companies regularly to cover our expenses in case of accidents or injuries. When accidents occur, however, they often let us down by refusing to pay the full amount of damages or even denying a claim outright. This article dives into the tactics they use to do so and what you can do to stop them. It discusses:
- How insurance companies get away with blaming injured victims to deny their claims.
- Three types of “evidence” (or the lack thereof) that insurance companies will use to deny claims.
- How past, present, and future injuries will be used against you by greedy insurance companies.
What Are Some Common Defense Strategies Employed By Insurance Companies In Car Accident Cases?
Any time someone is hurt in an accident, they should, in theory, be able to turn to their insurance or the at-fault driver’s insurance company for compensation. You can do so by filing a personal injury claim for the economic and non-economic damages, of which the most important is usually the medical costs. It is also where most insurance companies will find some way to try to wriggle out of paying some or all of the claim.
Defense 1: Put The Blame On The Victim Or Injured Party
The defense many insurance companies will turn to is to blame the injured driver by saying they could have avoided the crash if they had reacted differently.
This is an affirmative defense, meaning the insurance company must prove it. This will be difficult as they are trying to pass the blame off onto the driver based on how they reacted to a sudden and unexpected emergency that was created by their defendant or their insured.
For the defense to meet its burden of proof in such an affirmative defense, it is not sufficient to criticize any evasive action or lack thereof. It is not enough for them to say that the victim could have hit their brakes harder or swerved to the right or left. It is not enough to say that someone else would have done something differently. What the defense has to prove is that the injured party actually did something wrong.
They must prove that what he or she did was unreasonable. The law does not require a driver to react perfectly to the mess that was created by the other driver, only reasonably. Certainly, it is not fair for the person who created the problem on the road to then turn around and blame the person who was hurt by criticizing his or her reaction.
Ideally, the jury will bring back a verdict that says the victim did not do anything wrong. A verdict that says that the defense is responsible for all the harms and losses caused by the sudden, unexpected emergency that they created. A verdict that recognizes the magnitude of that fallout over a lifetime.
Defense 2: Insufficient Property Damage
Another defense often claimed by insurance companies occurs when there is not a lot of visible property damage. The defense will claim, using a photograph of the property damage with only a small dent, and insinuate that the victim is not actually hurt.
They will use terms like “low impact” to suggest that something is harmless. But it is more honest to refer to it as not a lot of visible property damage. It accurately leaves open the possibility that there may be more significant damage than meets the eye. Lots of people have taken their car into the shop after a crash, and it ends up looking fine but never runs the same.
The defense team needs to be reminded that injuries are not all about the crush but also jarring. It may seem less important, but being shoved from behind unexpectedly and awkwardly can hurt a grown-up spine. Also, there is no real scientific evidence suggesting that a car’s industrial frames must be torn up for the occupant to be hurt. It is easy to understand how a crash can cause a herniated disc because it’s not the crushing of the frame that causes that type of injury. It is that whiplash: that sudden, unexpected, and awkward jarring.
Defense 3: Insufficient Medical Visits Or Late Discovered Injuries
Sometimes, insurance companies will criticize clients for not going to the doctor immediately following a crash. They will try to argue that not going to the doctor right after a crash suggests that the person actually was not hurt.
The circumstances obviously matter, however, both in terms of the nature of an injury and the demands of life. If someone had shattered their leg, not going to the doctor for a couple of weeks would certainly suggest that it did not happen from that crash. That kind of injury is unbearable. If you are cut open or bleeding profusely, urgent medical care will be required. But a herniated disc is not something that is necessarily unbearable.
In fact, herniated discs seem, at least at the start, to be similar to a sprain or strain. You might think you are just waking up with a stiff neck after sleeping wrong. It aches, it throbs, and it feels stiff and tender, and that is why defense doctors always refer to it as a sprain and strain. Even if someone goes to the emergency room, the diagnosis is almost always a sprain and strain. Without an MRI, the diagnosis of a herniated disc really cannot be made.
You cannot pick up a herniated disc on an X-ray and, sometimes, a CT scan won’t pick it up either. And MRIs are not usually ordered at the emergency room. They are generally reserved for someone who’s in immediate life-threatening danger. So, after a typical car crash, they’re not going to order an MRI at the hospital. You’d have to get that later down the road.
Herniations aren’t life and death situations either. They are treated in doctor’s offices, not emergency rooms, and that basically explains why people don’t go to the ER when it feels like a sprain and strain. It is not unbearable. They think it will go away, and they know going to the ER will be a long, frustrating, and expensive process, and they have other responsibilities to deal with. They have to go to pick up kids from school, take them to baseball practice, or get the groceries home before the ice cream melts. Their car drives fine, after all, with only a dent, so they get on their way as soon as the police department is done with the paperwork.
Making a non-emergency room doctor appointment also takes time and costs money, especially post-COVID. It is very difficult to get into some of these doctors right away. It sometimes takes a few days before they have an opening for you, and by then, hopefully, the pain will go away. So, under those circumstances, going to the ER right away doesn’t add up to not being hurt, but that will not stop the insurance company from trying to use the defense.
After all, the pain is bearable. It’s not scary, crazy like chest pain or gushing blood, or being unable to walk. When people go to the ER for a herniated disc, it’s usually more about being rattled from the crash. But that does not make the injury, or the claim for compensation, any less valid.
Defense 4: Pointing Out A Treatment Gap
A common and frequent defense that comes up repeatedly is the gap in treatment defense. When a victim gets medical treatment after an injury and then stops going to the doctor, whether they never go back or eventually go back for treatment later, insurance companies will point to this gap when building their defense.
They will use the gap to make a victim seem shady or call into doubt their injury because they are not going to the doctor. But it is a fallacy, and an unfair one at that, akin to a cruel magic trick. The gap in treatment defense starts with the false premise that if someone does not keep going to the doctor, they must not be in pain. Anyone who has ever had chronic back or neck pain knows that no doctor does not necessarily mean no pain. You can’t rule out pain just because the person’s not going to the doctor.
In most cases, the true explanation for not going to a doctor really comes from their real-life circumstances. When you hope to get better or find a cure, you go to the doctor regularly. You might even go a couple of times a week even though it takes half a day. When there is a chance of getting better that the doctor could fix the problem, that major inconvenience or loss of time is still worth it. But as soon as you find out you are not getting better, that there is no cure, then there is no point going back. When you have reached the maximum medical improvement and have a permanent injury, you tend to just do your best to get on with the business of life and not bother returning to the doctor.
So why do victims of long-term injuries eventually return, causing that so-called gap? Usually, it is because the pain is taking a severe toll, and the person needs a little bit of relief, even if it is only temporary. Other times, it is because they read some new research about a new treatment and hope or wish it might finally offer a solution. Finally, though, sometimes they will go back just because they are in litigation and are responsible for bringing current information to the jury.
Since the treating physicians will need to testify about the injuries, it is important that the treating physician who will testify has an updated history and has recently examined the client so they can provide the most current information. It can even take a year or more to get to the jury trial from when the injury happened or even longer, which means going back to the doctor for that information.
Defense 5: Prior Injuries
A frequent defense involves insurance companies pointing to prior injuries suffered by the victim and blaming those for the symptoms or injuries they attribute to the crash. But prior injuries are just part of life and cannot entirely be avoided.
Insurance companies may even use these prior injuries to suggest that the injury matters less when the person is not in prime condition or health. After all, most people have had some kind of neck or back problem after a certain age. Adult spines get banged up from time to time. But contrary to what certain insurance companies might try to convince you of in their effort to avoid a trial, those priors are not a bad thing for your case. They may actually help it.
This is thanks to something called susceptibility. The crash may cause less damage to the car’s metal structure than to the spine, especially when your spine is already healing from something in the past. Thus, A past injury does not mean that a later injury to that area will cause less harm. In fact, it can be just the opposite. It may mean that the outcome is going to be a lot worse, that the injury will be more severe because you are more susceptible to harm there.
In many cases, the new accident can build on an old one, maybe causing a herniation from what was previously a sprain or strain. Why should the insurance companies get a discount when their insured client was the one to exacerbate this injury or cause it to become permanent? Like almost everybody else, a client having had a crash or episodes of neck and back pain in the past is no reason for a discount on this injury.
Insurance companies think they have a right to shortchange a client of what they are owed, but Florida law does not give them such a discount. In fact, Florida law states that negligence need not be the sole cause of the injury so long as it contributes substantially to the outcome. Florida law recognizes, enshrined in jury instructions, that justice is not reserved for people with perfect health. People who are not in the prime of their physical life should not be treated like second-class citizens who can only receive discount justice.
People with wear and tear, bumps and bruises, and people who have been hurt in the past or had health problems deserve full justice, too. After all, equal justice and justice for all are enshrined in the US Constitution.
Defense 6: Aggravation Defense
Insurance companies will make up these false discount factors to try to pay less than what the case is worth, and they’ll make it seem valid and argue that it is commonly accepted. A good example is that as an aggravation of a pre-existing condition case. Which is similar, but not quite the same, as prior injury defense.
The prior injury defense applies when you’ve completely healed and gotten better. An aggravation of a pre-existing condition is when you have a permanent injury and it never goes away but becomes worse from the crash. Insurance companies want us to believe that those cases are compromised and have less value than a new onset injury case. They will argue that people with long-standing back or neck problems have adjusted and learned to live with it. This has become part of their life, sometimes called their “new baseline” (a popular buzzword).
When someone negligently causes that baseline to suddenly and permanently drop to a much lower level, that loss is great, profound even. That person has to start all over again in the long process of adapting and adjusting. Even if the end result is their new normal, their experience of life is lessened forever. The amount of that change is what is recoverable, and the level of health they had before the crash is to be treasured and valued even if life is hard.
When something aggravates that pre-existing condition, that is a huge loss and must be measured accordingly. To make matters worse, the person who has the pre-existing condition in their spine has less “reserve” to lose. When there’s less to start with, the net effect is more impactful. Taking the same amount of mobility away from someone with half the mobility means twice the penalty.
Defense 7: Delayed Surgery
The last of the main insurance company defenses against personal injury claims occurs when surgery has been recommended, but the person does not have the surgery right away. They will argue that the delay suggests it was not necessary or serious enough to deserve compensation. But not all injuries are like cancer, which must be cut out or you die. Fixing a hernia, for example, is an elective procedure.
It is a surgery that can be put off as long as the person can handle the pain. Everyone knows somebody or has experienced someone in their family who has a bad back or neck that probably needs surgery but does not want to go through all the hassle, cost, or rehab required. If the pain is not currently unbearable, it is not unreasonable to hold off on the surgery, especially when the risks are high.
Any spinal surgery is serious, especially if you’re over the age of 50. There is a real risk of paralysis, and the failure rate is high. It may not help, it may not work, or it may even make things worse. So, when waiting is an option, and it will not be too late to do the surgery later, that might be the wiser choice.
Nevertheless, the defense will try to discount the value of the claim or will make the point that if you did not yet have the surgery, they would not help pay for it because they do not know what will happen. But that is not the standard in Florida. It is what is reasonably likely to happen, not what will happen. The standard is what is reasonably foreseeable, and context matters. And when you talk about and think about the context of why a person is putting off the surgery, their decision often makes sense.
The rehab time alone for spinal fusion surgery, for example, is several weeks or months, and you would have to take time off work for that. Often with unpaid leave under the Family Medical Leave Act. The banks, the electric company, and the grocery store do not care that you had an accident or injury. They expect to be paid every week, and if you are not working and earning, how are you supposed to survive while recovering?
That is, no doubt, why so many people just grin and bear it and keep going forward even though they are in extreme pain through no fault of their own. Even when insurance companies have received a report from a doctor saying that the victim is scheduled for surgery, some will still wait until the surgery is done before they will pay the full policy limits because they just do not believe these clients.
But there is no reason not to believe the person other than insurance companies effectively calling them a liar, a thief, and a cheat. It is an outrageous claim that deserves to be highlighted in a trial. Under the law, a surgical recommendation, as long as it can be proven that it is reasonably foreseeable that the surgery will happen or is needed, then it should be compensated.
How To Stop Pre-Existing Conditions Being Used Against You By An Insurance Company?
As you can see from the final set of defenses, prior injuries and pre-existing conditions are often a source of argumentation for insurance companies. Luckily, however, each argument they can make about them has its own valid counterargument that a skilled attorney can use to make sure the insurance company does not get away with it.
That is why you should never take the initial offer from an insurance company but always discuss your case, your conditions, and your needs with a personal injury attorney.
For more information on Defense Strategies Employed By Insurance Companies, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (954) 546-7608 today.