A “gap in treatment” is a period of time when you do not go to the doctor. Gaps in treatment reduce the full value of your injury case. But not always. The two most common reasons why people have delayed medical treatment in an injury case are:
1. Their pain is not greater than the “inconvenience” in getting medical treatment.
Many clients who I have settled cases for have told me that they did not have the time to see or follow-up with a doctor. I try to be as sympathetic to this as possible because I know how difficult it is to make a living. The skeptical side of me says that my client’s pain was not great enough to want to get medical help.
2. They do not have health insurance.
You may still be able to get medical treatment from a doctor who treats people injured in accidents in Florida even if you do not have health insurance. One option is to sign a document called a letter of protection (“LOP”), which would authorize your attorney, should there be a settlement, to pay the entire outstanding balance with the medical provider before you get any settlement money. If you cannot get a settlement, then the bill would become your responsibility.
An LOP may be more beneficial to you if you do not have health insurance.
If you have health insurance, then I generally do not like LOPs for a couple of reasons:
a. It may allow a medical provider to get paid more than the amount your health insurance would pay them for the same treatment.
You may have to pay the medical provider – who treated you on an LOP – more than you would have to repay your health insurance company. This means that your net settlement may possibly be reduced.
b. Claims adjusters may argue that you are in “cahoots” with the medical provider.
The liability insurer may argue that your case is a “lawyer driven” lawsuit if you treat on an LOP. This is why an LOP is best when you have no other option to get medical treatment. Many juries are already skeptical of personal injury claims. A LOP can make this worse.
The Effect of a Delay in Treatment
1. How Gaps In Treatment Can Lower A Possible Settlement.
All other things equal, someone who treats with a doctor 1 day after an accident has a stronger (worth more) case than someone who waits a longer period of time before seeing a doctor.
If you wait a long time to see a doctor again following a prior medical visit, this can also lower the value of your case. It is difficult to argue that you have a lot of pain and suffering when you are not going to the doctor or following the doctor’s recommendations.
I settled a case for $75,000 where my client complained of knee pain, neck pain and back pain (bulging disc). The case would have probably been worth more if she had a herniated disc instead of a bulging disc. One of the arguments that the claims adjuster for the underinsured motorist (UIM) carrier (Allstate) made was that there are issues of causality surrounding my client’s injury and treatment. There were delays in treatment and times where my client did not complain of knee pain.
I consulted an independent orthopedic doctor who said he wanted to know whether my client complained of knee pain immediately following the accident. He said that the knee issues and surgery may not be related if there were no complaints of knee pain shortly after the car crash.
In a separate case, I spoke with a third party adjuster (TPA) who is handling the case for a self-insured company that caused my client’s injuries. The claims adjuster has made an offer but before I make a counter-offer I wanted to know what she thought were the weaknesses in my client’s case. I also wanted to confirm that she had all the medical bills and records that I previously sent her.
She said that her 2nd biggest problem with my client’s personal injury case is that the medical records that – she has – show that there was about a 9 month gap in medical treatment. Her 3rd biggest problem with my client’s case is that he did not follow the doctor’s instructions (e.g. not wearing a brace that the orthopedic doctor recommends, not getting physical therapy if recommended, etc.) but I will not get into that here.
I replied by saying that the health insurance payout log – which I previously sent her – shows there were dates whereupon my client received medical treatment within that time frame that the adjuster said that she does not have medical records for. A health insurance itemized payout log is a document that your health insurer – or a company that they hire to subrogate – will send you that shows the itemized payments they have made arising from your accident.
You may need to request this document from the health insurance company or the company that they hire to subrogate for them. The claims adjuster acknowledged that the health insurance payout log shows that my client was treated for an ankle injury (sprain/strain) during the gap in treatment that she doesn’t have medical records for. But she said that she cannot assume that the ankle sprain was related to this accident.
Although I believe that we previously sent her the medical records that she claims to have not received, I told her that we would send her the medical records that she said that she did not have. I believe that, although there are no guarantees, once she receives these medical records she will increase her offer. So what can be learned from this case?
b. Ask the claims adjuster what issues, if any, she has with your case.
Once you do this you will have a better understanding of arguments that can possibly reduce the value of your case. Why not get information for free? You can also learn whether the claims adjuster has all the medical records and bills in her file. You can then provide the adjuster with documentation that can help her evaluate your case. Insurance companies want to settle cases.
c. You may not want to make a demand until you confirm that the adjuster has all the documentation.
This should be done on a case by case basis. If you are not very familiar with personal injury cases, then you may miss out on requesting records, bills and/or other many other documents that may help increase the value of your case. Insurance companies can only pay you for items that they have documented in their file.
2. When delayed treatment may not affect a settlement in your case?
A delay in treatment may not affect your settlement if the value of your case, after all reductions, is greater than the available liability insurance coverage. I settled a case involved in a herniated disc for $16,500 (gross) with Geico.
Let’s assume that the settlement value was $16,500 and my client had a little delayed treatment. Although this was not true in my case, for illustrative purposes we’ll assume that the only available liability coverage is $10,000. We’ll assume that a little delay in treats reduces the value of his case to $13,000.
In this scenario, perhaps a minor delay in treatment may not affect the settlement because he may still have received the $10,000, whether or not he had a delay in treatment.
A delay in treatment is more likely to affect your case if the available liability insurance is greater than the value of your case after reductions, such as comparative fault and other issues.
Over 68 Important factors may affect the settlement value of a Florida injury case.
Delays in treatment are just one (1) of the more than 68 important factors may affect the settlement value of a Florida injury case. Most people only know a couple of these factors. You need to know all of them so that you can be sure that the insurance company is not shortchanging you.
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Editor’s Note: This post was originally published in January 2014 and has been completely revamped and updated.