How do I avoid being accused of malingering in a personal injury case?

The last thing anyone wants after suffering a personal injury is to be accused of lying, faking, or exaggerating their pain. Taking the proper steps to document the accident and resulting injuries helps establish and support your claims. To learn more about how to avoid malingering allegations, read the following counsel from a panel of injury accident experts.

Document your complaints and limitations

Malingering is a technical term for feigning or faking injuries or exaggerating the consequences of an injury. Often, the defendant’s attorney or medical expert will accuse a plaintiff of malingering as a subtle way of insinuating that a plaintiff is not deserving of the compensation she or he seeks because the injuries are not as debilitating as the plaintiff would have people believe.

Most often, claims of malingering are only a tactic employed by the defendants to discredit a plaintiff. If a plaintiff complains of too many pain symptoms, then he or she is malingering. If he or she complains too little, then there is nothing wrong. However, accusations of malingering could potentially be devastating to a plaintiff’s claim if the plaintiff and his or her attorney are not prepared to rebut the often-absurd claims of malingering with credible, objective evidence.

Most often, the best evidence comes from the plaintiff’s medical records, which document both the plaintiff’s subjective complaints, objective limitations on physical examination, and the patient’s plan of care. The medical records also document the plaintiff’s treatment progress or lack thereof.

Therefore, in order to avoid being accused of malingering, it is critical to immediately and diligently take care of your health, as well as to document your complaints and limitations.

Furthermore, maintaining open and continual communication with treating physicians and other medical providers is key. A plaintiff should understand the nature and scope of his or her injuries, physical limitations, and the anticipated length of treatment. In addition, a plaintiff should pay careful attention to the frequency of doctors’ visits and to their progress, including positive or negative responses to treatment and any new or ongoing symptoms.

It is also essential that a plaintiff, and/or the plaintiff’s attorney, obtain any and all medical records and reports relating to their injuries and treatments to ensure all of the complaints are well documented. Finally, a claimant should communicate with his or her physicians about the future, for example, the anticipated frequency of future visits and the necessity of further treatment.

Beyond medical treatment, a plaintiff would be well served to document his or her limitations contemporaneously and to ask their family members to do the same. Presumably, a plaintiff’s life has been meaningfully impacted, with lives often turned upside-down. No one can express those limitations better than the plaintiff herself or her family members who see those limitations first-hand and are also often impacted by these limitations as well.

As always, it is of the utmost importance that a claimant is honest and upfront with his or her attorneys, particularly concerning ongoing medical treatment and the recovery process. Having the resources, experience, and guidance that a personal injury lawyer provides can prove invaluable.

Discuss with your personal injury lawyer

First, accusations of malingering are more important in moderate to serious injury cases such as those that involve surgery, serious injuries like brain injuries, spinal cord injuries, amputations, serious burns, and the like. The higher the potential value of the claim (which usually correlates with more serious injuries), the more likely insurance and corporate defendants will seek evidence of “malingering.”

The best way to know if you are likely to be accused of malingering in your personal injury case is to discuss with your personal injury lawyer. If you might have the type of case where the insurance company is more prone to seek this type of evidence, your lawyer should be willing to give you tailored advice regarding how best to avoid that claim in your case.

While the ways to avoid this claim will necessarily vary from person to person (because each person is involved in different potential activities every day), the most important thing to know is that you need to be honest with your lawyer about your abilities and limitations early in the representation. That way, they can tailor your claim to your actual injuries, which will then be consistent with whatever evidence is uncovered about your activities.

Insurance companies and corporate defendants can send private investigators to surveil your activities and record those on video. For example, they may record you lifting your child in the air in your front yard. Or they may record you moving boxes outside at your place of work. They might also just look at your Facebook feed or any of your online profiles and see pictures or comments that you shared with the world, proving that you are engaging in activities that are inconsistent with your claimed injury or degree of pain & suffering (Their lawyers can subpoena private messages too). This can continue throughout the pendency of your personal injury case (On average, litigated PI cases last 18 months to 2 years). Or they could ask witnesses questions about your activities and capabilities.

Since the defense can access a potentially wide range of evidence regarding your physical capabilities, the best approach is simple. Be honest with your lawyer, your doctors, and during the litigation when questioned by the defense. A truly and seriously injured person is less likely to be falsely accused of malingering since they truly can’t do many activities.

However, [plaintiffs] can sometimes do things for which there is an honest explanation. For example, they choose to lift their child against doctor’s orders and in great pain. So, they need to be mindful of particularly public or outdoor activities, or anything where there is a witness, throughout the pendency of their personal injury case. This warning is more important with more serious injury cases because insurance companies and corporate defendants are less likely to put the same effort into a lower value case.

Seek consistent medical treatment

The most important thing to do to avoid being accused of malingering is to seek consistent medical treatment. If you’ve really been injured, find a doctor as soon as possible because they’ll be the ones documenting your injuries. Be open and honest about your pain so that your doctor can keep complete records. Insurance adjusters and juries are looking for documentation. Without that, you don’t have a case. You need a written record of the doctor’s diagnosis, the recommended treatment, your treatment progress, and the doctor’s final opinion.

Remember that your doctor is the expert on your health. If they give you a diagnosis and recommend treatment, follow their advice. If your case goes before a jury and they see that you didn’t take your treatment seriously, they’ll likely believe that your injury should not be taken seriously either. Keep visiting your doctor and take their advice. It will pay off when the jury decides in your favor.