Do Gaps in Treatment Lead to More Injury Trials?

One of the duties of a lawyer is to tell people the truth, even when it hurts. To tell people that their actions, however well-intentioned and justifiable, may have certain unfair consequences. No lawyer enjoys it, but it is part of our job. So don’t shoot the messenger.

Let me give you an example of one such hard truth.

We got an email recently that I wish everyone would read when they get into an accident. The email was from a woman who was rear-ended and suffered a whiplash injury, which outlines her experience with a personal injury case. She did not go to doctors’ appointments constantly for two very good reasons: first, her physical therapist suggested she continue with home exercises for a while, which she did, and so she had a “gap in treatment” while she exercised at home; second, her husband had recently been diagnosed with Parkinson’s Disease, which understandably took up a lot of her time and may have seemed more important at times than her neck pain.

This happens all the time: An honest, well-meaning person, for completely understandable reasons, gets intermittent and inconsistent treatment for very real injuries. This is referred to as a “gap” in treatment.

Here’s what happens next: the insurance company suspects the person of fraud, or of exaggerating her symptoms, or of simply being a hypochondriac/whiner. And so the settlement they are willing to offer goes way, way down. A big gap in treatment can reduce your settlement by a lot more than you would think.

The insurance company’s argument sounds reasonable: “If you were really hurt, you would be getting treatment regularly. If there is a month-long gap between treatments, how do we even know that this new treatment is related to the car crash? Maybe you fell down your steps in the meantime.”

The problem is that honest people (who did NOT fall down the steps in the meantime) sometimes have gaps in their treatment, as the writer of the email that prompted this post can attest. So what’s the solution? Well, insurance companies could talk to people, read medical records, and make reasonable offers. And that happens about 5% of the time. But for all the rest, the solution is a jury trial, or at least the threat of it. A jury can hear your story about the gap in treatment, and hear the insurance company’s lawyer tell them all the reasons they think you’re faking, and then the jury can decide who is telling the truth (or at least who’s version seems most likely).

A jury trial is not always necessary. Sometimes the insurance company will come around after an arbitration, or even merely after depositions. But you can’t count on that. If you have a big gap in treatment, you likely won’t get full compensation unless you go all the way to trial (or at least do all the work necessary to get very close to trial). And even then, the gap in treatment will likely result in a lower verdict than if you treated regularly.

Moral of the story: if there is any way to keep your treatment regular, do it. By the way, this consistency will also help with something that is way more important than getting the settlement you deserve: it will help you heal faster. And if you really have to have a gap in treatment, for example, if you are dealing with your husband’s Parkinson’s, then unfortunately, part of the sacrifice you will be making is that your settlement will be lowered.

Editorial comment: This is crazy. The insurance company is supposedly concerned about fraud? Someone fell down the stairs in the meantime? And got the exact same injury that they got a few months earlier in a car crash? Absurd. The insurance company isn’t really concerned with fraud; really, they are concerned with their bottom line, and to protect that bottom line, they are willing to deny perfectly reasonable car insurance claims on any pretext. They are even willing to clog the courts with trials on cases that ought to be settled.

I wish this changed the moral of the story, but it doesn’t. If you have a big gap in your treatment, you will likely get less money or be forced to go to trial.

Don’t shoot the messenger.