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On the Importance of Being Proactive in Getting Better

Posted by Benjamin P. Melnick | Jan 04, 2019 | 0 Comments

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“Training Day” is one of my all-time favorite movies. Denzel Washington's performance was totally deserving of his Oscar win. It also gave me a line to help explain to my clients why communication with medical providers is so important, and following through with a medical treatment plan is absolutely crucial.

Denzel Washington's character, Alonzo, is a corrupt narcotics officer. He supervised Ethan Hawke's character on his training day. Alonzo arranged a series of events to put Ethan Hawke's altruistic character—through intimidation, peer pressure, and literally a gun to his head—in an incredibly compromising situation. Alonzo played him for a fool.

Ethan Hawke's character is forced to choose between becoming a crooked cop himself—complicit in horrendous acts, including murder, theft, and police brutality—or potentially losing his career and his ability to feed and care for his family. When he finally realizes just how much of a mess he is in, he protests that things are not what they look like. Alonzo tells him, probably my favorite line in the movie, “It's not what you know. It's what you can prove.”

That line, “It's not what you know. It's what you can prove,” is one I often recite to my clients. They may know they are injured. They may know their injuries are from the crash. They may know the effects the crash had on their lives. Unfortunately, insurance companies and juries will not just take their word on it. They want proof.

To most people, proof can look like just about anything. A witness can tell a story; an MRI can show a bulging or herniated disc; or a doctor can describe the injuries.

To an insurance company and its lawyers, proof means medical treatment. If you do not go to the doctor for a few days after the crash, they may consider that proof you were not that injured. If you cannot consistently attend your treatment, they may consider that proof you were better than the records say. If you stop going to treatment, they will say it means you are all healed.

This narrative is something juries are quick to accept, even if you have witnesses testifying otherwise. Juries are typically fairly about conservative awarding damages for personal injuries. There is a powerful and pervasive notion that personal injury plaintiffs just want to get rich. One powerful way to combat this notion is to get medical treatment, follow the treatment plan, and try to get better.

For better or worse, medical records become the “truth” of the case. Putting your injuries in writing and having them verified by a person with medical training can help to bring things from the realm of what you know into what you can prove.

In my experience, people do not want to just hand out money. They want you to prove that you are worthy of the money. If you got rear-ended sitting at a red light, they will know the collision was not your fault. They will know you did nothing wrong to be injured. Still, they want to see that you tried to get better.

Perhaps most importantly, if you do not follow the treatment plan, if you do not prove your injuries through medical records, the insurance company can reduce your damages. There is a legal concept called “mitigation of damages.” A person who is harmed, economically or physically, is required to try to do what they can to keep to a minimum the amount of damage they are going to claim. The idea is that one person's wrongdoing does not give the injured person a one-way ticket aboard a gravy train.

If you do not seek medical care that could have helped you, if you do not attend treatment as prescribed, or if you do not follow through with medical or other activities that could help you, the insurance company may be entitled to ask a jury to find you did not mitigate your damages. And if the court instructs the jury a person is required to mitigate damages, your records say you should have seen a specialist, and you never went, the jury may well find you did not mitigate your damages.

Now be careful. This is not a license to go seek excessive medical treatment and take the nuclear option on your medical treatment if it is not warranted.

You have to find a balance. You need to seek medical treatment to be able prove your damages. You need to follow your provider's orders and follow through with treatment that they recommend within reason. You may also however need to consider whether the treatment is helping you, and whether you need to seek alternative treatment.

It is a difficult balance to strike. If you get it wrong, it might hurt your case. But if you get it right, it can help overcome a pervasive and misguided bias that you are asking for a handout. Instead of knowing that you were hurt and it had a profound impact on your life, you will have the tools to prove it.

About the Author

Benjamin P. Melnick

Ben Melnick joined the firm in 2018. He graduated from Washington State University with a Bachelor's degree in 2010, and went on to earn his Juris Doctorate from Gonzaga University School of Law. In 2016, he was named as the Clark County Bar Association's Rising Star. His practice focuses on personal injury, auto accidents, biking accidents, wrongful death, and insurance disputes. Outside work, Ben likes spend time with his wife outdoors—mostly running, hiking, and skiing—and playing soccer.

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