Jeff Marion | October 4, 2023 | Personal Injury
There’s a saying in auto racing: “The race is not won at the end of the first turn, but it certainly can be lost.” The same is true for personal injury claims.
Even if you do everything right, winning a personal injury claim can still take an agonizingly long time. It takes time to investigate a car accident (or slip and fall, or other kind of personal injury), prove liability, calculate damages, and negotiate with an insurance company. If you need to file a personal injury lawsuit, it might take you 18 months just to get a court date in Western New York where I practice.
And if you don’t do everything right? The truth is, sometimes a simple, understandable, innocent mistake—even one made in the first few hours or days after you’ve been injured—can severely complicate or even ruin your case.
In this blog post, I’m going to share the top 10 common mistakes that I’ve seen personal injury victims make in their cases.
1. Not Seeking Medical Help as Soon as Possible
Don’t wait a week, or even a couple of days, to see your doctor. Don’t try to “tough it out” or expect everything will just get better if you wait.
Any delay you take in seeking medical attention will be used against you by the insurance company. They will hammer you on it. At the bare minimum, they’ll say it must mean you weren’t really that badly hurt. If you wait long enough, they might even claim your symptoms have nothing to do with the crash or injury at all. And if you don’t have any medical records dating from the first few days or weeks after the crash, they could very well get away with it.
I don’t only see this in settlement negotiations or court arguments. I see it in focus groups, too. Jurors are extremely skeptical when injury victims don’t seek medical help right away. No matter what the other facts are, no matter what other scientific or medical evidence you provide, delaying treatment almost always causes juries to underestimate and undervalue injury severity. The result could be a much lower verdict or settlement, even if liability is crystal clear.
2. Not Following Up on Treatment
If your doctor gives you a treatment plan, follow it. If you’re referred to a specialist, go see that specialist. If you’re ordered to do physical therapy, do physical therapy. If your medical team gives you any restrictions about how much you can carry or how much walking you can do, obey them. And if for any reason any of that isn’t possible, don’t wait until your next appointment to say something. Reach out to your medical team right away.
Look, I get it—recovering and rehabbing from personal injuries is rarely fun. And there are several reasons why you might be tempted to ignore your doctor’s medical advice. Maybe you’re feeling depressed and just don’t see the point. Maybe you’re in too much pain. Or maybe you’re having a really great day and you feel like you really can walk, bend, and lift beyond the restrictions you’ve been given.
But if the insurance company finds out you aren’t following up with treatment and obeying your recovery plan (and they will), they are going to jump all over you for the same reasons as the point above. It makes you look dishonest (or at least unserious), and it gives the impression that your injuries must not be all that bad.
3. Not Knowing What Insurance Coverage Is Available
In practice, the maximum amount of compensation you can get from your case depends on which insurance policies apply and what the coverage limits are for those policies. If you’ve suffered a serious injury, it’s incredibly important to find all these sources of compensation. Otherwise, you might be leaving a whole lot of money you deserve (and are entitled to) on the table.
For car accidents, more than one source of insurance coverage frequently is available. It won’t necessarily be just the other driver’s car insurance. For example:
- Was the at-fault driver driving for work? Their employer might have a policy that applies.
- Was the car owned by a person other than the driver? The car owner’s insurance might apply.
- Do your damages exceed the at-fault driver’s regular auto insurance coverage limits? They might have an umbrella policy that provides extra insurance coverage.
- Are other parties potentially responsible, such as a bar that knowingly overserved a driver or a mechanic that provided shoddy repair work? They could also be held liable.
And it’s not just car accidents. For a slip and fall case, depending on where it took place, multiple policies might be in place. A store owner, the landlord of the building, or even the company that maintains the parking lot could be involved.
4. Not Preserving Evidence
In New York, you have up to two years to file a personal injury lawsuit. But the evidence you need to actually prove your case will start to disappear much sooner than that—sometimes just hours or days after the incident.
Let’s work through some quick examples:
- In a car accident case, make sure you take pictures of the car damage, the accident scene, and your injuries. Call 911 and get a police report. Get contact information from witnesses. See if there’s any existing dash cam or security camera footage showing the accident and ask for it before it gets deleted. Don’t junk your car before an expert can look at it.
- In a truck accident case, trucking companies are legally allowed to destroy logbooks and other records after a period of time unless you demand they preserve them.
- In a product liability case – such as with an exploded appliance, shredded tire, or failed seatbelt – don’t get rid of the product before an expert can look at it. (If you do, a judge can even instruct a jury to interpret that action negatively against you.)
5. Not Hiring an Expert When You Need One
I work closely with experts all the time, particularly when a case involves technical details or complexities that require specialized knowledge to prove liability or damages.
For example, if you were in a car accident, an accident reconstructionist can piece together the evidence from a crash scene to estimate how fast cars were going, when brakes were applied, and who was likely at fault.
Experts are especially crucial when dealing with any kind of injury caused by an unsafe product or equipment. For example, I hired an expert engineer to examine a hydraulic boom lift that failed and severely injured my client. Getting an expert on board as quickly as possible helped ensure that I could get all the details I needed before the evidence disappeared.
Medical professionals, life care planners, vocational specialists, and other experts are also used to estimate an injury victim’s future damages, including medical treatment costs, long-term care needs, reduced earning capacity, and more.
One additional thing to note is that, in drawn-out personal injury cases, the insurance company will also have its own paid “experts” who will—surprise!—be all too eager to tell any jury exactly what the insurance company wants them to hear. Hiring the right experts of your own won’t just help you make a stronger case—it may be necessary to help you refute whatever nonsense is argued by the other side.
Realistically, injury victims will probably not be able to do this on their own. An experienced personal injury lawyer will have existing connections with experts around the region (and even the country) and know how to make new ones when necessary.
6. Trying to Negotiate with the Carrier
Insurance carriers know at the outset how much coverage is available and how much the insurance adjuster is authorized to pay to settle your claim. (It’s usually not a lot.) They may have their own internal rules about who needs to give approval to settle a case. They might have a policy of never offering over a certain amount unless they’ve been sued. And if they do, they’re certainly not going to tell you about it.
In my experience, an insurance company will never settle a case quickly and fairly. The best you can hope for is one or the other—never both. That’s also why you should be immediately suspicious of a quick initial settlement offer. Most likely it means the insurer knows they could lose a whole lot more if the case goes to trial and hopes you won’t try.
The insurance adjuster is going to be well trained. They will be listening for any inconsistencies or mistakes you make that they could use against you. The best way to protect yourself is to not talk to the adjuster at all and let your attorney handle the discussions. But if you do end up fielding those calls yourself, check out my recent blog for tips on how to navigate these tricky conversations. A few quick pointers: stay calm, stick to the facts, don’t guess or speculate, and ask lots of open questions.
7. Giving a Recorded Statement
This dovetails with the last point, but here’s an extra special note: never give a “recorded statement” to the insurance adjuster. They’ll probably ask and you should always say no. You don’t have to do it and it can only hurt your case. If your case goes to court, you and your attorney will have the opportunity to lay out all the evidence in the most favorable possible light. The only reason the insurer wants you on the record before that is so they can use your words against you.
You might think, “I have nothing to hide. I’m an honest person, I tell the truth, and I did nothing wrong.” And that may all be true! But even honest people make mistakes, forget details, or try to soften the blow of hard truths—especially if they’ve just been through a highly stressful and traumatic experience.
For example, let’s say the adjuster asks about your injuries and you talk about your back, but forget to talk about your shoulder pain. Later, it turns out that your shoulder is hurt worse than you thought and you need surgery. Because you didn’t mention your shoulder at the time you gave your statement, the insurance company will almost certainly say that your shoulder injury must not have been caused by the crash.
You might think that sort of scenario is unlikely, but it happens more often than you’d think. The smartest choice is simply to not take chances and don’t give recorded statements in the first place.
8. Giving Up After Your Claim Is Denied
Insurance companies deny legitimate claims all the time. That doesn’t mean you don’t have a personal injury case.
Denying claims is how the insurance company makes money. They’re going to look for any justification they can to minimize what they pay out to you. And they will discourage you from taking the next step—sometimes especially if they know you probably have a decent case. They don’t really want to spend time and money fighting a legal battle; they just want you to go away.
Even if the insurance company tells you that it isn’t liable or absolutely won’t go above a certain settlement amount, don’t take it at face value. In my practice, I have taken many cases where the insurance company denied the initial claim, only to settle for a significant amount of money later (or lose big at trial). Just about every experienced personal injury attorney out there could tell you similar stories.
The insurance company is not your friend. Don’t automatically believe what they say.
9. Blaming Yourself
When something bad happens, it’s easy to start doubting yourself and blaming yourself for what happened, even if it wasn’t your fault.
There’s more. I hear potential clients say things like, “I’m not the suing type” all the time. People have a lot of negative stereotypes about personal injury cases and attorneys. There’s a sense that filing a personal injury claim is just “ambulance chasing.” Or that suing somebody automatically makes you a “bad person.”
But please understand: you were a victim of someone’s carelessness. A driver was speeding or distracted. A company knew that a product was unsafe. A store knew that they had to take care of snow and ice and didn’t do it. And as a result, you are now out of work and have medical bills you have to pay.
You should not have to pay the price for someone else’s mistake. The system exists so you can get fair compensation that balances out, as best as possible, what’s been taken from you through no fault of your own. You should not feel bad or ashamed to use it for its intended purpose.
10. Representing Yourself
After reading the first 9 items on this list, you might be wondering how anyone manages to avoid all these mistakes and handle their claim on their own.
It’s a good thing to wonder, because frankly it’s ridiculous to expect any victim of a serious injury, with no legal experience whatsoever, to take on an insurance company alone. Even if you think you have the “facts” on your side, you will be at an extreme disadvantage in every conceivable way: legal knowledge, access to information, access to experts… you get the idea.
People often choose to represent themselves (at least initially) because they’re overconfident about their chances of success or because they think they’ll get more money in the end if they don’t have to pay an attorney fee. That might be true if you’ve been in a very minor accident that only caused minor, temporary, fully healed injuries that kept you out of work for no more than a few days.
But if you’ve taken on thousands in medical bills, missed several days (or more) of work, or suffered a permanent disability or disfigurement, hiring an attorney is strongly recommended. Your lawyer will not only save you a whole bunch of time and stress but fight for a truly fair settlement.
And even if you’re not quite sure what category your case falls into, call a personal injury lawyer anyway and ask for a free case review. When I talk to a potential client and realize they don’t really need to hire me, I’m happy to tell them so and advise them about what to do next.
Hurt by Someone Else’s Negligence? I Can Help
If you’ve suffered a personal injury in Buffalo or anywhere in Western New York and you need experienced legal help, give me a call.
I’ve been representing victims of car crashes, falls, defective products, and other personal injury matters for more than 25 years. I’d be happy to set up a free consultation to talk with you about your accident, your injury, and your legal options. If you hire me, I’ll fight aggressively to see that you get a favorable outcome.
Give me a call at (716) 589-6655 or use the contact form on this website to get started.
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