Too often when individuals have been injured in a car crash, they fail to get immediate care, which causes problems resolving their personal injury claims with the insurance company. Usually this delay is a combination of a common dislike to seek medical treatment for problems, a hope that the injuries will heal on their own, not wanting to take the time from a busy life to go wait in a doctor’s office to be seen, and the natural reaction of denial that anything serious could be wrong. Whatever the reason, some delay in seeking medical treatment is quite common. If you think you are injured, however, you should get checked out as soon as possible.
Insurance adjusters will look for any reason not to pay the true value of a case. If there is a question of who is at fault or exactly what happened (what attorneys call a “liability question”), insurance companies can drag the case out for a long time, particularly if the injured person doesn’t have medical insurance or medical payments coverage. As a result, some injured claimants will not seek medical care until liability has been established. When there is a delay, the adjuster and the defense attorney will argue that if a person is “really” injured, that person would get medical treatment as soon as possible. There are, after all, some hospitals that will treat injured persons in the absence of any type of insurance.
In addition to seeking immediate medical care for injuries sustained in an accident, it is also important to return for follow-up visits and, if released but symptoms persist, to follow the doctor’s advice and return for further evaluation. If there are significant “gaps” in medical treatment, the insurance company will use this as a reason to make a lower offer. The law in Virginia, as in most states, 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, and the injury therefore last longer or is more expensive or difficult to treat, the law says that is the fault of the injured person and not the person who caused the injury, so the negligent person (and their insurance company) are not responsible. This is called the “duty to mitigate damages.”
At Allen and Allen, we advise our clients that when you have an injury, you should be diligent and seek immediate care, whether it is the hospital emergency room or your primary care physician. If your primary care physician refers you for further testing or to physical therapy, it is very important these appointments kept. If an appointment cannot be kept because of transportation or other issues, the client needs to contact the facility and let them know the reason why they are not coming that day, and reschedule. This is both courteous and also shows continued medical treatment.
Adjusters and defense attorneys have a field day when an injured claimant does not follow the doctor’s instructions. They argue that if the person was “really” injured and in pain, and was limited in their activities by their injuries, then that person would want to get well and would be compliant with all the doctor’s recommendations. In addition, when cases go into litigation, if there has been a significant gap in treatment, insurance companies will generally have their attorneys request a medical examination conducted by their doctor. Often this doctor will give an opinion that soft tissue injuries only take a certain number weeks or months to heal, that the claimant appears to have recovered by that time as evidenced by the termination of treatment at the beginning of the gap, and that no more treatment was indicated or necessary after that time.
Furthermore, insurance companies have spent millions of dollars trying to convince the general public that many if not most people who bring personal injury claims are exaggerating if not outright faking, that there is something wrong or greedy about bringing a claim for injuries and losses someone else has caused you, and that “runaway juries” award too much money to people who are hurt by someone else. This propaganda the insurance companies have used to “brainwash” the public is hard enough to overcome when trying to settle personal injury claims. (All settlements are based on what is likely to happen at trial, and this propaganda affects the verdicts of people who are on juries). When a client does not even follow the doctor’s recommendations and instructions, it lends credibility to the insurance company’s argument that the client’s soft tissue injuries are not that significant, and that these types of injuries and excessive treatment are the reason insurance premiums are so high.
In order for us to represent them well, our clients are instructed to keep their appointments and follow their doctor’s instructions. Hopefully, by getting proper care, their injuries will not linger. We emphasize to our clients that, in order for us to negotiate a timely settlement which reflects the true value of their claim, we will need proper medical documentation. The medical records will need to reflect their complaints about what was injured, that they sought prompt medical attention, and that they cooperated with their doctors and treatment in hopes of achieving the best recovery in the shortest amount of time.
 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.” Most other states and federal courts have similar requirements; for instance, in the United States District Courts, 9th Circuit, the requirement in “Instruction No. 5.3 Damages-Mitigation” is worded as follows: “The plaintiff has a duty to use reasonable efforts to mitigate damages. To mitigate means to avoid or reduce damages.”
 Rule 4:10 of the Rules of Supreme Court of Virginia permits a defense attorney to request this.