PERSONAL INJURY LAWSUITS - CHAPTERS SIX, SEVEN AND EIGHT
INDEPENDENT MEDICAL EXAM
In any litigation where a plaintiff is claiming medical injuries, the defense is entitled to what is called an Independent Medical Exam (IME). The defense hires a doctor of their choosing, who they pay to review the plaintiff’s medical records and perform an examination. The term “independent” is a misnomer. There is nothing independent about it. There are known “defense doctors” who are complete frauds. There is no doctor-patient relationship, no right to confidentiality, and the IME doctor cannot be sued for malpractice, no matter how outrageous his diagnosis may be.
As you might expect, the vast majority of these reports claim the plaintiff is not injured, or at least not as injured as he claims. They will always find a preexisting injury to blame for your discomfort or claim the collision was incapable of causing the plaintiff’s injuries. Some of these doctors only testify for the defense and have been paid millions of dollars over the years to testify for insurance companies.
We represented a young lady who was struck by a wrecker that drove into the lobby of a tire store. The defense hired a doctor to say she did not have a serious head injury because the impact was not sufficient to cause the injuries we were claiming. I had a photo of the front of the wrecker with a huge shank of my clients blonde hair stuck to the crumpled hood. I also had a photo of the chair she was sitting in when this happened. Unfortunately for the insurance carrier, the chair was out in the parking lot with pooled blood all around it. The shattered window showed the violence that occurred when she was launched through the air on impact and landed in the parking lot. I guess they forgot to show their good doctor the scene photos before he wrote his “independent” medical opinion.
They sometimes watch you through a one way mirror before entering the room to see if you limp, or show signs of being able to move normally. Then when they are in the room they claim the plaintiff acted as though he was injured and is clearly faking. Since they record nothing you are at their mercy. One doctor was so dishonest that I got a court order requiring the IME to be videotaped in its entirety by my camera crew. What could possibly be wrong with filming the IME? The doctor has nothing to hide, right. I mean after all, he is a doctor, right. This practitioner of the healing arts refused to see my client and the defense had to declare a different doctor to perform the IME. He would not allow himself to be videotaped while performing an examination.
I had another IME doctor who claimed my client did not have a serious back injury. This was an auto pedestrian collision where my client was literally knocked out of his shoes when struck by a car. He had chronic back pain from that day on. When cross examining the doctor, in front of a jury, it came out that he specialized in acupuncture. I confronted him with his own literature he published where he claimed he could cure all kinds of maladies by sticking a needle in your head. He had no specialty with the human spine but he felt quite comfortable rendering opinions to try and destroy the man’s case.
The IME is a necessary evil in our system to maintain balance. In Texas, a person can record his or her own conversations without the consent of the other person. For people who are not in Texas a word of caution. In some states it is against the law to record a conversation without informing the other person you are doing so. Each state has its own penal code. You need to consult an attorney in your state before recording a conversation without someone’s knowledge. In Texas, having your cell phone on record while being interviewed is one way to protect yourself. Make sure you are prepared before meeting with the other side’s doctor.
DO PRE-EXISTING INJURIES AFFECT A DAMAGES CLAIM?
Prior to being involved in a catastrophic accident, most normal people have suffered some kind of injury while growing up. If you broke your arm as a child but break your ankle in an accident, that prior injury should be irrelevant. Most adjusters will try to use it to reduce the damages for your broken ankle. A good lawyer will push through that nonsense, but that is the reality of the civil litigation environment. What if you tore your medial meniscus in a football injury and now have a torn medial meniscus in the same knee, years later, from a car accident? Logic and fundamental fairness would dictate that if it was addressed and cured several years ago, it should have nothing to do with the new injury.
Fairness and logic, unfortunately, are not a priority of most insurance adjusters. They will claim they do not owe anything because the injury was preexisting. While a carrier legally does not have to pay for a preexisting injury, exacerbation of a preexisting injury is recoverable. If someone has suffered back pain for years and is hit from behind, causing the pain to increase, that increase in pain is a damage. Defense doctors are notorious for claiming the plaintiff’s spinal injury was preexisting and not caused by the accident.
BEWARE OF PREDATORY LENDERS
There is a shameful industry that will lend money on a personal injury case and charge you obscene amounts of interest. They get around the usury statutes by giving loans with no recourse. What that means is if you do not recover on your personal injury case, they do not get their money back. If you do recover, they get huge amounts of your settlement.
I kept a client from borrowing $10,000 against his case on one occasion. At time of settlement, they would have been entitled to $53,000. A bank loan at 7% would have cost him $700. If he had put that same $10,000 on a credit card, at 24% interest, he would have paid $2,400. For them to receive $53,000 for a $10,000 loan he had for a little over a year is outrageous. They would have gotten the equivalent of roughly a 430% return on their money. Do not borrow from this predatory system, ever.
On all our large recoveries, we insist the client put their money in a tax free annuity that guarantees them an income for life. To just hand someone a million dollars will only end in heartache. Everyone thinks they are different. Everyone thinks they are too smart to lose their money the way everyone else did. I have never seen anyone receive a large award, lump sum, that they did not eventually lose. The financial people joke that with an annuity “you can only go broke one month at a time.”
There is another group of predators who prey on people with annuities. They pay you a lump sum for your annuity. Now you are getting about 66 cents on the dollar and have no protection. These people who abuse victims in such a calloused way have no soul. Once you lose your money, there is no going back. You cannot sue these predators because you made a bad decision.