Can delay of treatment impact your claim?

Far too many individuals fail to seek immediate medical attention in the aftermath of a motor vehicle collision. Whether it be optimism that injuries will heal on their own,  demands of a busy schedule, fear of the doctor’s office, or a lack of health insurance, individuals who wait to seek medical attention for their injuries create an obstacle that they may not be able to overcome when subsequently attempting to resolve their personal injury claim with insurance carriers.


The personal injury process can be difficult enough to navigate without adding additional complications. Once a personal injury claim is filed, insurance adjusters attempt to identify problems or inconsistencies within the claim to justify denial or payment of a lower settlement amount. If there is a question about who was at fault in causing the collision, insurance companies will either deny the claim pending “further investigation” or will ask for a “liability-related discount” in the settlement value. If the property damage is insignificant or not readily visible in the photographs of the involved vehicles, insurance companies will often say “it was not possible for someone to be injured in this minimal impact collision.” If the medical bills are significant, insurance companies may reduce the compensation offered for them claiming that they are not “customary and appropriate for the geographical area in which the services were rendered.”

At Allen & Allen, we deal with these issues every day and, as advocates, we recognize that successfully navigating problems wholly outside of our client’s control is critical to obtaining a favorable result.

Concurrently, the decisions that are within our control and are made from the moment of collision through completion of the claim are equally important to ensure a successful resolution. Any delay in treatment will be cited by the insurance company as evidence that the claimant was not seriously injured in the collision or alternatively that the injury that is ultimately reported was caused by something else. Waiting weeks or even months to see a physician can make it difficult, if not impossible, to prove that the injuries originated from the crash and are thus financially compensable. If you are injured through no fault of your own, it is essential that you seek immediate medical treatment to corroborate your injury and establish a causal connection to the traumatic event as quickly as possible.

In addition to seeking treatment quickly, it is equally important to return for all scheduled follow-up visits and follow your treating medical provider’s advice throughout the duration of your recovery. If there are significant “gaps” in medical treatment, or periods of time in which no treatment is rendered, the insurance company can use them as a justification to “cut off” the claim on a certain date or lower their offer based on a “failure to mitigate damages.” Virginia law requires an injured person to take reasonable steps to seek medical treatment for their injuries and to follow the medical advice they receive.  If the injured person does not follow a reasonable treatment protocol and as a result the injuries last longer and are more expensive or more difficult to treat it can adversely affect the value of the claim. [1]

If a lawsuit is filed and the claim proceeds into litigation, Virginia law permits the insurance company to hire a physician of their choosing to review a personal injury claimant’s medical records from before and after the collision and to perform a physical examination of the claimant to determine the nature and extent of the injuries that resulted from the collision. [2]. Delay in seeking treatment, gaps in the treatment regimen, or failure to follow a medical provider’s treatment recommendations will be identified by the defense doctor and subsequently used as a basis for an expert opinion that the plaintiff was not injured in the subject crash or that the injuries resolved in a relatively short period of time. Avoiding this battle of the experts whenever possible saves both time and money and ultimately increases case value.

Insurance companies have spent millions of dollars trying to convince the general public that personal injury claimants are asking for more money than they deserve through fabrication or exaggeration of their injuries. Establishing the true nature and extent of an injury by seeking immediate medical treatment, returning for regular follow up examinations, and following your doctor’s orders is essential in overcoming this unfortunate misconception.     

At Allen & Allen, we advise all of our clients to seek immediate medical care to solidify  a direct link to the traumatic event. Thereafter, corroborating the duration of pain, suffering, and inconvenience with contemporaneously documented medical records is essential. Many providers will treat uninsured patients on a lien against their personal injury recovery or through an assignment of benefits to the personal injury case. If an appointment must be cancelled, calling the provider to provide an explanation and reschedule immediately is vitally important. Following these simple steps is essential to maximizing the financial compensation to which you are entitled. If you or someone you know is injured through no fault of your own, call us for a free consultation.

[1] In Virginia, this duty to mitigate damages is contained in the Virginia Model Jury Instructions No. 9.020 and reads as follows: “The plaintiff has a duty to minimize his damages.  If you find that the plaintiff did not act reasonably to minimize his damages and that, as a result, they increased, then he cannot recover the amount by which they increased.”

[2] Rule 4:10 of the Rules of Supreme Court of Virginia permits a defense attorney to request this.