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.
Daniel G. Ecker
Daniel G. Ecker is a founding member of Lever & Ecker, PLLC, a plaintiff’s personal injury law firm located in White Plains, New York. Dan and his firm represent individuals who have been seriously injured through the negligence of others, such as in motor vehicle accidents, falls, construction accidents, etc.
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.
Truthful about pain levels at all times
The only way to avoid malingering accusations in a personal injury (PI) case is to be truthful about pain levels AT ALL TIMES when treated by medical providers. The truth shall set you free. Defense counsel will argue that all plaintiffs are guilty of malingering in PI cases. The truth is cars are big. Commercial [vehicles] are even larger. All cars are made of metal and can cause a great deal of pain and destruction when a collision occurs.
A common point harped on by defense counsel throughout a personal injury case is a gap or gaps in treatment. Gaps in treatment will bring with them accusations of malingering. If there are large gaps of time between a plaintiff’s medical treatments, the defense will claim the plaintiff is not hurt and is being disingenuous. Even though there are many instances where a gap in treatment is unavoidable (i.e., work schedule; contracting covid/flu symptoms), it is critical to stick with a treatment plan laid out by a medical provider when possible.
Lingering treatment will also bring malingering accusations. If a plaintiff is demanding more treatment than prescribed, and the treatment goes longer than objectively reasonable, defense counsel will question the necessity of that treatment. Every scenario or injury in our industry is viewed on a case-by-case basis. Several factors are taken into account when evaluating the veracity of a claim: collision impact severity (if a car wreck); treatment gaps, if any; when did the client begin treatment; how long did treatment continue, and is the treatment reasonable given the circumstances?
For example, in a car collision, if there is minor damage to the car(s) and the plaintiff has three surgeries stemming from the collision, the defense counsel will call all treatment into question. At that point, the plaintiff’s prior medical history is essential (i.e., was the plaintiff predisposed to injury (“Eggshell Client”)) to determine the need for that treatment. Only the injured party knows if they are hurting or feigning an injury. Ultimately, honesty is the only way to combat accusations of malingering in PI cases.
Ms. Tina Willis
Ms. Tina Willis handles serious injury, accident & death cases in Orlando, Florida. She is a former law professor and big firm defense lawyer, who fights hard to recover every penny her clients deserve. Find her at Orlando personal injury lawyer.
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.
Try to Work
Immediate cessation of work, especially all work. Most people prefer or have to work. Cessation of part or all work, especially in the face of a limited injury is a telltale sign of malingering. It’s easier to do this when an injured person has worker’s compensation, short or long-term disability, legal assistance, or some other means of support. Otherwise, most patients try to work in some capacity as soon as possible to avoid being accused of malingering. So, if able, try to work in some capacity, as soon as possible after an injury, in order to avoid being considered a malingerer.
Don’t Do Other Activities
If a person can’t work because of their injury, then they shouldn’t be able to do other activities, such as a shop, clean house, exercise, go to bars, and travel. To avoid being considered a malingerer, don’t do other activities which also require the same physical exertion which keeps you from working.
Continued disability, in the face of a relatively minor, or limited injury can give the appearance of malingering.
Seeking out opinions from multiple physicians in order to gain further work restrictions. When the doctor indicates it’s a reasonable time to return to work, it’s best to return to work to avoid being considered a malingerer.
Barbara Bergin, M.D.
Barbara Bergin, M.D. Board Certified Orthopedic Surgeon Austin, Texas. Find her at Drbarbarabergin.com
Stephen K. Brooks
Stephen K. Brooks is an attorney with Brooks Law Group in Tampa and Winter Haven, FL. Steve devotes all of his current practice to “people problems:” personal injury, wrongful death, and Social Security Disability. He is a people-first lawyer dedicated to helping people get the legal representation they deserve.
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.
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