Josh and Aaron discuss why clients often struggle to get all the treatment they need following an injury, and how that impacts the case.
Listen here or read the transcript below. FVF’s podcast is available wherever you listen to podcasts including Apple Podcasts, Spotify, iHeart Radio, and more.
0:00:17.3 Josh Fogelman: Hey Aaron.
0:00:17.4 Aaron Von Flatern: Hey Josh.
0:00:19.5 JF: Trick or Treatment.
0:00:20.4 AF: Oh my gosh.
0:00:20.6 JF: I stole it from you. You should have said, “Hey Josh,” but you didn’t. You made me do it and then I stole your joke.
0:00:26.2 AF: It’s a great title for our podcast. I hope that Dave goes in the background and names it that.
0:00:30.2 JF: Yeah, but I’ll always get the credit because I’m the one that said the line.
0:00:34.5 AF: By trick or treatment, what the heck do you mean?
0:00:37.4 JF: Yeah. I think we’re here today because we think that there’s some really important conversation to be had about certain aspects of how we work with our clients to make sure that they’re getting the medical care that they deserve, that they need, the importance of getting that medical care, the options for getting that medical care, and how we’ve seen over time that people can get fatigued from getting medical care because it can be very disruptive to a person’s life, it can be really disruptive to a person’s job and work, and keeping an open line of communication with our clients to make sure that we’re navigating that together.
0:01:24.3 AF: And?
0:01:25.2 JF: And the answer is yes.
0:01:27.3 AF: And?
0:01:29.0 JF: Yeah. It’s…
0:01:29.1 AF: And?
0:01:30.4 JF: And what Aaron?
0:01:31.4 AF: It’s October [chuckle] and it’s Halloween time, so we called it trick or treatment.
0:01:36.3 JF: Yes.
0:01:37.5 AF: So clever of us, of you.
0:01:39.4 JF: That was pretty clever of me to come up with that and then act like you might have come up with it.
0:01:45.3 AF: Have you ever been a client in a personal injury case before?
0:01:49.5 JF: I am fortunate enough to not have ever been a client in a personal injury case before.
0:01:55.2 AF: Same, but I’ve seen it. [laughter]
0:01:58.2 JF: I’ve seen it a lot of times.
0:02:00.6 AF: And from the outside looking in, it looks hard. It’s hard to be a client because the lawyers have big jobs, right? We got a lot going on with opposing counsel, with the court, with motions flying back and forth, with discovery. We’re investigating, we’re talking to cops, we’re going out with accident reconstruction guys, we’re hiring experts. We got a lot on our mind and we’re trying to move that case forward. And the whole time, to us, it seems like just the easiest thing in the world. It’s like, of course, the client is going to get the medical treatment, that’s their only job. And yet it’s pretty tough because people have lives, right? They didn’t ask to be in this, they didn’t interview for this part-time job as it turns out to be. And they’ve got kids, their kids are in sports. They’ve got spouses. They’ve got parents to take care of. They’ve got their exercise routine they’re trying to maintain, and they probably have a boss who wants them to do job work.
0:03:02.4 JF: Yeah. In fact, it’s funny, when I’m talking to clients or potential clients about what their expectations ought to be, a big part of that conversation is usually me explaining to them that they have now been, unfortunately and through no fault of their own, been given a second job above and beyond whatever their primary normal life job is and that job is to treat, the importance of that being twofold. One, if you don’t treat, you don’t get better. And two, by going through the protocol of getting the medical care that you need and thereby getting better or at least getting as good as you’re going to get. It was just an unfortunate outcome many times in the cases that we work. You’re going to put yourself in the best position possible to prove the extent of your injury, to prove the extent of your harms and losses, and therefore put yourself in the best position possible of letting us do our job to maximize your recovery. So kind of walk us through… There’s all spectrum of injuries. You have some that are more or less minor and you have catastrophic fatalities. We tend to see a typical injury being a person who’s sustained some sort of injury to their spine, back or neck of varying degrees of severity. But what have you experienced or seen as kind of a typical protocol that someone should expect to go through for your normal spine injury case?
0:04:42.5 AF: I’m glad you asked. And I think, as we’ve done in this podcast in the past, I think you should get in the car ’cause we’re going to my time machine car.
0:04:49.5 JF: Sure.
0:04:50.4 AF: Now I’m gonna take you back to the year 2000.
0:04:54.3 JF: Your time machine car needs to be vacuumed out, by the way. [chuckle] I meant to tell you that after our last time travel adventure.
0:05:01.4 AF: Hey, can you just turn Britney Spears up and get in? [laughter] Get in loser. Okay. We’re going to the year 2000. I’m in claims school for a regional insurance company in Rhode Island.
0:05:14.2 JF: Because you used to work for an insurance company as a claims adjuster.
0:05:19.3 AF: Correct. Yes. I was on the inside, on the belly of the beast. And I went to this school twice and then they sent me to another school about negotiation in New Jersey. This is pretty intense on the insurance side. They’re trying to figure out, just like we are, what’s the right value for a case. It’s one of the hardest things to figure out when each case is like a snowflake, it’s got its own unique contours and elements to it. In claim school, first thing they tell you is the insurance companies are looking for frequent active and curative treatment, frequent active curative, as opposed to sporadic and palliative. And I learned what palliative meant back then, which was basically getting massages and things like that that make you feel better for a minute and then later you go back to the same baseline of pain that you had or limited function, whatever it is. So the first thing is frequent active curative treatment.
0:06:19.4 AF: What does that look like? Well, you have to have a medical quarterback, someone who is sort of the touchstone, the medical touchstone of the case, who’s looking at you in the beginning and ordering the right diagnostics and referring to the right specialists. Every case that’s valued on the insurance side looks at factors like, is there high level imaging? Are there high level specialists involved? How long was the treatment? How consistent was the treatment? How frequent was it? And what was the progress that was made? And what is the future that’s predicted? And that last point is the one that I don’t think people realize can put an exponential value on a case.
0:07:08.4 JF: Sure.
0:07:09.0 AF: It can multiply the case by an exponent. Because if you take someone who’s gone through some treatment, maybe they have a sore back and they get through three months of physical therapy, maybe they’ve had an MRI that showed there’s some changes in the spine, maybe it’s a little hard to tell whether those were degenerative changes or acute changes. They’ve undergone maybe some cortisone injections or some kind of trigger point injections. They’re not better. It’s still nagging them, but they just say to themselves, “Surely the insurance company knows I’m hurt. I have a job. I’ve got a big deadline at work. My kids, they gotta get to sports practice, whatever.” And they just tell us, “I’m not going back there. I’m not going back there.” So that’s person A.
0:08:05.3 AF: Now, person B keeps the treatment going and the doctors continue to experiment with different therapies. For example, there might be ESIs, there might be RFAs, radiofrequency ablations. I’m sure everybody who’s listening knows what that is. There might be nerve conduction studies to see how fast electricity is going through the nerves that may or may not have been compromised at spine level and may or may not be permanent without surgical intervention. And the doctor has reached the conclusion that this is a structural problem that is either gonna be expensive to fix or is just gonna result in permanent pain or impairment. That person’s case, person B, their case is worth a multiple, a large multiple of the person A. And they both are probably hurt the same.
0:08:56.4 JF: Yeah. And that’s just because a massive part of proving the case requires us to have some sort of qualified expert talk about what a person’s probable long-term injury is gonna be and the treatment that is gonna be required for that injury, the limitations they’re gonna have because of that injury, the costs associated with treating that injury. And person B has done the work to arm the expert, the medical doctor or a medical doctor usually or a life care planner, with the appropriate information where they can competently speak to all of those future harms and losses, whereas person A has abandoned treatment and therefore not armed the medical experts with sufficient information to actually check the legal boxes that are necessary to create risk for the insurance company that a jury can award all of those future expenses and all of those future limitations, which is ultimately the crux of a case where you’re dealing with someone with a permanent impairment.
0:10:09.3 AF: And person A, the reason they’re in that position oftentimes is they think they’re doing the right thing. They think that, “I’m someone who maybe has a high pain tolerance. It is morally right to try to pick up the pieces and do the best you can. It is best not to be a complainer.” These are valid reasons for people to not be treating.
0:10:34.2 JF: Or they’re tired of it.
0:10:35.3 AF: Or they’re just fatigued.
0:10:36.4 JF: They just don’t have the time or they feel like they don’t have the money or they feel like they don’t have the energy to actually go and get the treatment that they need. And we deal with that all the time where people… “I’ve got kids at home,” they’ve got sports. “I’ve got a job from 9:00 to 5:00.” “My boss won’t let me out.” “I can’t afford to lose my job.” There’s a lot of valid, legitimate reasons that people have that preclude them from going through the recommended sort of machinations, the steps that are necessary to put their case in the best position possible. So how do we deal with that when someone just can’t or won’t or doesn’t know how?
0:11:28.5 AF: I think you have to engage them on the real problem because the problem they think they’re trying to solve is pain and the problem that we’re trying to solve is the medical mystery: What exactly is pushing on what exactly that’s structurally different than before the injury happened? What exactly needs to be moved from point A to point B at the molecular level to get that fixed? That’s a medical mystery, and until solved needs to be pushed on. And if you don’t solve the medical mystery, because we have the burden of proof, it runs in the defendant’s favor, it runs in the insurance company’s favor. And so they’re waiting us out a lot of times hoping that the person will get tired. And what they’re really hoping for is poor communication between the lawyer and the client because it comes down to communication, right?
0:12:18.2 JF: Yep. Absolutely.
0:12:19.4 AF: We’ve got to make sure our clients are informed. That’s one of our core values is educating our clients. Make sure that they’re informed of what their mission is, what they’re actually working on.
0:12:32.3 JF: And how we can go about, on an individual basis, removing the roadblock or roadblocks that they’re experiencing, that’s getting in the way of them doing their best job for their case, which in many instances could be a life-changing case for them from a financial perspective, if it were handled appropriately. In this modern era, especially post-COVID with the introduction of, or really the, I guess, widespread acceptance of things like telemedicine, there are always ways that you can make the access to medical care more convenient. Or if there are financial reasons, you don’t have a car because your car was destroyed, or you are afraid that you can’t afford to pay your co-pays or deductibles, or you’re afraid you’re going to miss time from work. There are always gonna be a way to access resources.
0:13:38.4 JF: If the case warrants it, if the case justifies it, there are gonna be ways to access these resources that can help make sure you can continue moving the ball forward for your own health and for the value of the case, but it requires oftentimes some specific individualized tailoring of things in a case that you’re gonna have a hard time getting oftentimes in a big volume mill law firm that you’ll have an easier time getting at a law firm that focuses on maintaining a small docket of cases within the firm so that they can give that attention and really help every single client as best as possible in any given case. So open line of communication, choosing the right lawyer are some of the things that are really critically important for clients to understand, in my experience, in order to help us help them.
0:14:38.2 AF: And you know what happens if you don’t get treatment?
0:14:41.3 JF: You get tricked.
0:14:42.1 AF: You get tricked, [laughter] which is why this title is so good. Great talking to you.
0:14:47.2 JF: Well, thanks for tuning in. Great talking to you too.
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