Here are ten effective strategies that doctors and attorneys can employ in a personal injury case to ensure settlement amounts fairly reflect what their mutual patients and clients have experienced.
1. Accurate Patient Notes
Thorough documentation is the backbone of any personal injury case.
Doctors should maintain detailed patient notes that capture the patient’s medical history, specifics of the injuries, and the progression of treatment.
This documentation should include an accurate patient history, complaints of injury, the treatment provided, and the response to that treatment. Failure to maintain accurate records can severely damage the patient’s claims during negotiations or litigation.
For example, the failure to document prior accidents or injuries is often used by the insurers and their attorneys to question causation and both the patient’s and doctor’s credibility.
2. Ongoing Treatment Justification
It is important to accurately document the patient’s prognosis upon discharge. Even if the patient is reporting ‘zero out of 10’ at the last visit, this could change with time.
If symptoms can potentially return with nothing more than daily living, then the record should reflect this and potential future care should be identified. By documenting this prognosis, any pain the patient later testifies to, or expense the patient incurs, is not contradicted by his or her own medical records.
3. Documenting Lost Income
If the patient has missed work due to his or her injuries, this must be clearly documented. Patient notes need to include the dates the patient was unable to work and the reasons and medical justification for the absence.
Insurers will not consider lost income claims that do not include this documentation. It is essential for the patient’s attorney to have this documentation when presenting a lost wage claim in court.
4. Consistent Records Sharing
During litigation, defense counsel will send a Request for Production of Documents to Non-Party Healthcare Providers. With some minor exceptions, they are entitled to the full medical file. This includes any documents filled out by the patient, such as the initial health questionnaire.
It is essential that the patient’s attorney receive the same information and patient records as other parties involved in the litigation. Many times, the patient’s attorney is only provided with the bills and records while the insurance company’s attorneys receive additional documentation. Consistency is key; discrepancies and information can lead to complications that weaken the case.
5. Monitoring Treatment Costs
Awareness of treatment costs is essential if the patient is being treated on a lien. It is important to monitor these costs in relation to the available liability insurance limits to avoid any surprises later.
The minimum liability insurance coverage in Georgia is $25,000 per person / $50,000 per occurrence. This is the extent of coverage that many Georgians carry. Therefore, unless the patient has Underinsured Motorist Coverage (UM), this is the maximum available regardless of the cost of treatment.
Understanding this financial landscape allows the attorney to negotiate a settlement that will satisfy all the parties to the case.
6. Setting Clear Expectations
It is critical for an attorney to set realistic expectations with the client regarding the potential outcome of the case and the time the case will take to settle. This counseling will prevent misunderstanding and frustration down the road.
It is generally best to do this in stages, so the client is not overwhelmed. On the other hand, you do not want to have the first discussion about case value at the time of settlement.
Discussing timelines, possible outcomes, and the factors that influence settlement amounts will keep clients engaged in the process and create trust in the relationship.
7. Caution Regarding Social Media
Social media can pose a significant risk to personal injury claims.
Attorneys should advise clients to refrain from discussing the accident or their injuries online. Any posts can potentially be used against them in court, undermining their credibility and the strength of their case.
8. Discouraging Litigation Loans
While litigation loans may seem like an easy solution for clients and financial distress, they can complicate the settlement process and impair the client’s ultimate recovery.
Attorneys should educate clients on the potential pitfalls, including high interest rates and the possibility that these loans will count against their net recovery at the time of settlement.
Clients are almost universally surprised about how much interest they owe at the end of the case. A clear understanding of the terms can empower clients to make good financial decisions that will affect their ultimate recovery.
9. Empowering Client Choice
A common strategy used by insurance companies attorneys is to argue that the patient’s care is “litigation driven.” It is important for an attorney to educate his or her client about the choices they have available to them and empower them to make their own healthcare choices.
Attorneys should encourage clients to research recommended healthcare providers and seek treatment based on their own comfort and trust. Clients can, and should, seek counsel from their attorneys regarding their healthcare choices, but attorneys should leave the medical decision making to the client and their doctors.
10. Willingness to Litigate
If settlement negotiations do not result in a satisfactory offer, in the next ethical step is to counsel the client regarding the option of litigation.
If personal injury litigation is not a part of your practice, you can engage an experienced litigation firm under a fee sharing agreement that does not result in any additional cost to the client.
Litigation almost always increases the value of a case. During litigation, facts are often discovered about the defendant that increase the value of the case. A willingness to pursue the case through trial also demonstrates to the insurance company that the case is serious and often leads to higher settlement offers.
