Month: April 2024

How to address a defense of malingering in a Vermont personal injury suit

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Be prepared to address a malingering defense head on

Malingering is defined as a falsification or profound exaggeration of an illness to gain an external benefit. In a Vermont personal injury lawsuit, the defense will often point to evidence of malingering to argue that the damages claimed are not credible. Although there may be cases where a malingering defense can pose a real and substantial hurdle to receiving a fair monetary award, it is important to understand how one can combat this defense if the matter is to go to trial before a VT judge or jury.

Collateral witnesses

One convincing way to argue against a malingering defense is to have witnesses testify that knew the plaintiff both before and after the injury occurred. Co-workers, friends, religious leaders, and many others can provide credible testimony as to the changes the individual exhibited in response to the injury. These witnesses can also provide evidence as to the credibility of the plaintiff to show that they would not lie about their medical condition.

Instances where the plaintiff endured other illness or injury are especially relevant. Testimony that the plaintiff “fought through” discomfort to get a job done, or to meet their family obligations can be impactful in showing that the injury sustained in this case is real and substantial.

Lack of prior medical history

If there is a lack of prior medical history in similar circumstances, it is important to present this evidence. If, in years past, the only medical treatment a plaintiff received was for basic health maintenance, having your primary care provider testify to such facts will show that there is no pattern of seeking unnecessary medical treatment, only someone who is focused on their general health and well-being.

Malingering tests

Although there are no diagnostic tests that can specifically identify a patient who is malingering, there is a battery of tests that are used by medical professionals to identify the common symptoms. These tests, according to the National Library of Medicine include:

Lab Studies

  • Complete blood cell (CBC) count
  • Serum electrolytes.
  • Renal function tests
  • Liver function tests (LFTs)
  • Blood alcohol level
  • Blood and urine toxicology screen (may also rule in malingering in case of drug abusers seeking opioids)
  • Computed tomography (CT) scanning or magnetic resonance imaging (MRI) of the brain should be considered to rule out organic brain disorders

Other Tests

  • The Minnesota Multiphasic Personality Inventory (MMPI)
  • The F-scale
  • Test of memory malingering
  • The negative impression management scale
  • Rey 15-item test
  • The temporal memory sequence test
  • Symptom and Disposition Interview (SDI)

It may be prudent for a patient to have a conversation with their medical providers about these tests to see if any of them have been used during their treatment. These tests are often designed to be feathered into the course of normal treatment in a way that does not tip off the patient that the tests are designed to identify malingering. This method can be the most credible way to establish through medical testimony the lack of malingering.

Using malingering against the defense

Alleging that a patient is lying about their condition to gain a benefit can be a tricky proposition. In some cases, this defense can be turned back on the defendant when the testimony of lay witnesses and medical professionals proves otherwise. In those cases, it can be pointed out that the defense is attempting to avoid responsibility for causing an injury by calling the victim a liar. This can be pointed out to the jury at trial, which can further enhance the damage that has been done to the plaintiff and further entice a Vermont jury to increase a damages award.

The content above is for informational purposes only and should not be considered legal advice. Readers with specific legal questions should consult with their own private counsel.

Negotiating a Vermont personal injury settlement

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You only get one shot at settling your claim. Make it count.

There is no hard and fast rule when it comes time to discuss the settlement of your personal injury claim with an insurance adjuster. However, rushing to these negotiations without an understanding of how the insurer is valuing your claim is not an efficient way to reach an acceptable number. If you have suffered an injury in Vermont and an insurance adjuster is rushing to have you agree to a settlement, it may be prudent to take a step back and consider the following:

Have I reached end medical result?

You may be feeling better and, as a result, feel that it is time to put this matter behind you and conclude your claim. It is important not to rush this. If your care providers recommend follow-up tests or care following through on these recommendations is key to ensuring your recovery is complete. Keep in mind, that once you settle the case, you can’t go back if new symptoms arise. This can especially be true in brain injury cases, where the full extent of the severity of the injury may take weeks to fully understand, and months to years depending on the grade to fully treat.

Is there a risk of my insurance seeking reimbursement (a.k.a. a subrogation claim)?

One of the trickiest hurdles in reaching a personal injury settlement is determining who will be responsible for the medical bills associated with treatment. When a settlement is reached, the insurer is often paying a lump sum that settles all of their liability, including medical bills.

In most cases, a subrogation claim will be filed by your insurance company onto the responsible party’s carrier. However, if you have already settled your claim and signed a general release, freeing the carrier from any further liability, you may be on the hook for this claim. Medicare and Medicaid are especially thorough in issuing these claims. It is important to understand that should you be covered by government insurance, there is often an obligation to inform them of your potential settlement and to allow them to claim reimbursement that will need to be settled before you receive your cut of the settlement proceeds.

Do I know the limits of the responsible party’s coverage?

The minimum auto insurance coverage limits in Vermont are $25,000 per individual and $50,000 per incident with $10,000 in property damage coverage. Many drivers carry much higher limits. You have a right to know this information before you begin negotiating a settlement. If the injuries are severe and the coverage is low, you may need to look beyond the offending party’s coverage to seek full compensation for your injuries. This may be accomplished if you carry underinsured coverage on your auto policy, which allows you to seek reimbursement from your insurance company for amounts that exceed the policy limit of the liable party.

Take your time when evaluating whether to settle or litigate a Vermont PI claim

Just because an insurance adjuster wants to settle a case and is waiving around a quick payment to you in exchange for a release of your claim, does not mean you need to jump in immediately to negotiations. Taking your time, to fully understand the degree of your injuries, the risk of a subrogation claim, and understanding the policy limits of the liable party are all prudent steps in ensuring you get a just result in your Vermont PI claim.

The foregoing is for informational purposes only and should not be considered legal advice. Readers of this content who have specific legal questions should seek advice from their personal attorney.

Does a traffic citation equate to liability in a VT car accident?

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Only a judge or jury can decide who ultimately is at fault.

There are circumstances where a car accident in Vermont may also lead to a criminal or civil citation. DUIs, driving too fast for conditions or negligent operation are a few of the most common citations a motorist can receive that stem from a collision between two or more vehicles. Although these citations may play a significant factor in the determination of who was at fault for the Vermont car accident, they are not the end-all when it comes to litigation.

How does a Judge or Jury Decide Liability?

12 VSA § 1036 states that “[C]ontributory negligence shall not bar recovery in an action by any plaintiff, or his or her legal representative, to recover damages for negligence resulting in death, personal injury, or property damage, if the negligence was not greater than the causal total negligence of the defendant or defendants,…”

To provide context to this, consider if a Jury finds that one driver was 60 percent liable for a car accident, while the other driver was found to be 40 percent at fault. If the damages sustained by the 40 percent liable party were found to be $100,000, the end result would be an award in that party’s favor of $20,000 (the difference between 60k and 40k or 60% and 40%).

How does a traffic ticket or criminal citation play into this calculation

In most instances, a personal injury case will take a back seat to any criminal prosecution and will only be heard after the criminal case has been resolved. This procedure is based on a criminal defendant’s 5th Amendment right to remain silent, which they do not enjoy in a personal injury action.

Certainly, the outcome of the criminal case will play a role in liability and, in some cases, may be fatal to a claim.

A traffic infraction does not enjoy such protections and, in most cases, will be resolved before the personal injury case. This legal realm will provide a bit of a preview for the larger PI case and is an important step in evaluating liability. If a defendant is found not guilty of their traffic violation, this can help bolster the case that the other party is liable for the accident.

Even if the driver is found guilty of the offense, this may not, in all cases lead to a liability determination. A judge or jury would still need to evaluate all of the other factors surrounding the accident before they dole out the percentage they feel each party was responsible for in creating the circumstances surrounding the accident.

Just because you’re charged does not mean you are liable

Evaluating the strength of a personal injury claim in Vermont can be a complicated matter when there are companion criminal or traffic ticket charges. However, each case is unique and must be reviewed independently of others to truly make such a determination. The result of this review may just surprise you when it is ultimately determined who remains at fault for this unfortunate event.

This content is for informational purposes only and should not be considered legal advice. Readers who have question about their own legal matter should consult with their personal attorney.

How to evaluate the degree of a brain injury after a Vermont car accident

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You cannot “walk off” a brain injury. Have the symptoms? Get checked out ASAP!

The science of traumatic brain injuries (TBI for short) continues to evolve as new studies release the long term impacts these injuries can have. What was simply classified years ago as “having your bell rung”, it has now been uncovered that the potential long term consequences of a TBI can be drastic if untreated. For those who have suffered an injury as a result of a car accident in Vermont, it is important to know how medical professionals commonly assess the presence and degree of a TBI.

Glasgow Coma Scale

The Glasgow Coma Scale is a 15 point test that can measure the degree of a TBI by asking measuring a patients ability to follow instructions and their fluency in moving their limbs after impact. Abilities are measured on a scale from 3-15. The higher the score, the less severe the TBI.

Question and Answer

Valuable information can be obtained simply by asking specific questions as to the patients response to the trauma and what they can and cannot remember. It is essential that the patient recall as accurately as possible what symptoms they felt, including lose of consciousness, lack of memory, and any describing factors that can explain how the injury was sustained.

Is Imaging Needed?

If there is concern that structural damage has been sustained to the brain, a CT scan or MRI may be necessary. This imaging may not pick up a TBI, as many of these injuries are not visible even with a more intensive MRI scan. However, if serious damage has been done, such as a brain bleed, this scan be be crucial in minimizing the overall damage of the TBI.

Pressure Monitoring

In some more serious cases, the swelling of the brain can cause significant pressure as it presses against the skull that can increase the damage sustained. In these cases, a monitoring device, known as a Intracranial pressure monitor, can be inserted to evaluate the degree of this pressure.

That headache after a VT Car accident may be something more

Often times, victims of a car accident in Vermont will attempt to self treat themselves, thinking that over a period of time they can “walk off” any injury they sustained. However, when it comes to the brain, it is important not to simply believe that it will heal with rest. With the improvements in medical treatment, TBI’s can be diagnosed and treated more effectively then in year’s past, if you take that initial step of accurately reporting all the symptoms to your medical provider.

The content contained in this post is for informational purposes only. If you need specific legal advice about your injury, consult with your own private attorney.

The importance of journaling during your personal injury recovery

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Your story awaits

Journaling is a great way to memorialize your thoughts. From what you ate, to vacation ideas, to how you feel when you roll out of bed, a journal can provide a great reference point when you are trying to refresh your recollection. If you have suffered an injury as a result of a Vermont car accident or other type of personal injury, a disciplined journal of your treatment and symptoms can be key in properly advocating for a just resolution of your claim against the responsible party.

Tell your whole story not just your story of pain

A personal journal should not just surround your injury and treatment, it should cover all aspects of your life. This provides more context for how you have lived your life both before and after the injury, which can be used to compare the new limitations you may suffer as a result of the injury. A narrative form of journaling can also add authenticity to the limitations you may suffer (Ex. “before the incident, I was playing golf 3 days a week and taking 60 minutes of Yoga. After the incident, I am unable to walk more than 9 holes and my Yoga classes are non existent because of the pain in my back”).

Describe how things feel

Journaling is a great way to put into words the type of feeling you are experiencing not just its existence. “A burning sensation that runs down my leg, forcing me to sit down” provides far more context then simply stating “pain in my leg”.

Articulate your response to the pain

Pain is not simply the existence of discomfort, it is also the response to it. If dizzy spells have forced you to stop reading, or you have had to sit down while playing in your yard with your kids because of a sudden back spasm, it is important to note this. The fact that your life has changed due to this injury can be as, or more important, then the pain itself.

Journal every day

Don’t let excuses get in the way of your spending at least a couple minutes each day reducing your thoughts and feelings to paper. Studies have found that journaling can have a substantial positive effect on your emotional well being.

If you are also enduring a personal injury, the positive impact can be even further enhanced. Ensuring that you are able to recount the entire recovery progress in a way that is both credible and expansive well greatly assist you in advocating for a fair resolution of your personal injury claim.

This article is for informational purposes only. If you need specific legal advice, seek out your own private attorney.

Involved in a car accident? The narrative of the accident report can wait

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Beware of Page 2

The Vermont DMV has strict timelines on the filing of a uniform accident report by a motorist who is involved in a car accident where damage has been sustained. However, if there is an ongoing investigation into an accident, or if a motorist has been cited for a criminal offense, such as DUI or Negligent Operation, there are several complicated considerations that should be evaluated before submitting this report.

23 VSA  § 1129 states:

“The operator of a motor vehicle involved in a crash in which someone is injured or there is total property damage of $3,000.00 or more shall make a written report concerning the crash to the Commissioner on forms furnished by the Commissioner. The written report shall be mailed to the Commissioner within 72 hours after the crash. The Commissioner may require further facts concerning the crash be provided upon forms he or she furnishes (emphasis added).”

The Details of the Report

Much of the information requested in this report is not prejudicial to the defense of any claim that is brought against the motorist. Information such as the make and model of the car, policy number for insurance and your name and date of birth should be freely provided in a timely fashion. However, on page two of the Uniform Crash Report, there is a section that requests that you, in your own words, provide a narrative of what happened.

Filing a False Report

First off, it should be made clear that filing any type of false information in this report can be considered a crime under 13 V.S.A. § 1754.

Providing an Accurate Narrative

Further, if you provide an accurate detailed description of the events that led up to the accident, this information, which you are required to swear to the truth of, could be used against you in a criminal prosecution.

Does the 5th Amendment Apply?

All defendants in criminal actions have a right to not incriminate themselves under the 5th Amendment of the US Constitution. Since the DMV is requesting just that in their Uniform Accident Report, declining to answer may be a viable option after you have consulted with your attorney.

What are the consequences of not filing any report?

The Vermont DMV can move to suspend your license should you fail to fill out any accident report. As stated above, the basic identifying information should not provide too much risk of self incrimination. However, consulting with the appropriate legal professionals before submitting this report may be the best course of action before you ultimately determine how detailed you want to be in responding to the DMV’s request for information.

The information contained in this post is for general information only. Should you need specific legal advice concerning any matter, consult with your personal attorney.

What is required of me to have my license reinstated after a DUI conviction?

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If an individual is convicted of a DUI either in the criminal or civil context, there are certain requirements that must be met in order for their driver’s license to be reinstated. What is important for most people, is that these tasks are completed efficiently so there is no “dead time”, where a suspension is prolonged merely because the convicted individual has been unable to complete all the steps required during the initial suspension period.

Impaired Driver Rehabilitation Program (IDRP) Screening

The first step in license reinstatement is to complete an initial screening with the IDRP coordinator. This screening will determine whether there are alcohol or drug dependency issues that increase the likelihood of reoffending.

IDRP Class

After the screening has been completed, an individual convicted of DUI must then complete the class portion of the IDRP program. This class, requires regular attendance at group sessions (most are held via Zoom at this time). There are two options for DUI offenders. Participate in a once a week class for four weeks, or complete an overnight weekend intensive class. To see where these classes are held and on what dates, visit the IDRP calendar page.

Counseling

One of the major reasons for an initial screening is to determine whether an individual needs to engage in alcohol or drug counseling as a result of the findings in the screening report. For a DUI-First, there is customarily a requirement of at least four counseling sessions with a Licensed Drug and Alcohol Counselor (LADC). DUI-Second offenses carry enhanced counseling requirements. LADCs are in high demand throughout Vermont and can be difficult to connect with to set up an initial appointment. If you do not have a personnel connection with an LADC, a good place to start looking can be found HERE.

The Certificate of Completion

Once both the IDRP class and, if necessary, counseling sessions have been completed, IDRP should send a completion certificate to the Vermont DMV, notifying them that this requirement has been complete.

Unfortunately, this certificate does not always automatically get sent after completion. It is important to conduct the necessary follow up with both the DMV and the IDRP program to ensure that the two agencies are communicating in a timely manner. Otherwise, your license could be held in limbo while the slow wheels of bureaucracy grind along at a snail’s pace.

SR-22 Certificate

Vermont requires that all individuals convicted of a DUI must obtain an SR-22 certificate from their insurance company, certifying that they are providing at least the mandated minimum coverage. Vermont’s minimum coverage currently sits at $25,000 per person, $50,000 per accident and $10,000 in property damage. For more information on the SR-22 process visit the Vermont Department of Financial Regulation website.

Paying Reinstatement Fee

An often forgotten phase of the license reinstatement is paying the necessary license reinstatement fee to the Vermont DMV. Currently the fee is $98.00 and can be paid by visiting the DMV website.

If you do not pay this fee, your license will not be reinstated. I have seen numerous cases throughout the year where a motorist has been pulled over and arrested for Criminal Driving While License is Suspended merely because they never paid the reinstatement fee.

Your License is Not Reinstated Until You Receive Notice from the Vermont DMV

Do not assume that you are reinstated because you have completed the necessary steps. In order to be considered legally reinstated you must receive written notice from the DMV.

The DUI process carries with it many legal hurdles in order to get your life back on track. Although the criminal side of things bring potential financial penalties as well as the risk of a period of incarceration, the license suspension process can also be ripe with potential peril. Ensuring you understand and are able to navigate both in the most efficient manner possible is key to ensuring that the DUI become a distant memory in as short a time as possible.

Auto insurance rises by nearly 26 percent nationwide

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Combat the risk by contesting the violation

For all of those who have been following the Federal Reserve’s decisions on when and if to cut interest rates, one of the major factors in this decision was the inflation gague determined by the Consumer Price Index (CPI). The recent release of higher then expected numbers has cast serious doubt as to the timing of any interest rate cuts.

Auto Insurance Continues to Skyrocket

A recent report by Bankrate showed that in the past year, U.S. auto insurance rates have risen by nearly 26%. This increase alone contributed a half a percentage point to the recent CPI.

The causes of this rise are several fold, including increases in repair costs and natural disasters. However, driver behavior continues to be one of the leading causes of insurance rate increases.

Risky Driver Behavior

The National High Traffic Safety Association (NHTSA) reported that there were 7,000 more traffic deaths in 2022 as compared to prior years. This has led to an increase in high level claims with insurance, resulting in a 27 percent loss for these companies.

Much of this rate increase was attributed to a rise in risky driver behavior, such as speeding, texting while driving or drowsy driving. It was also found the the rate of operators driving under the influence of alcohol or cannabis also increased.

Any driving behavior that an insurance company can deem to be “risky” can have drastic effects on one’s insurance rate. In certain circumstances, the degree and number of risky acts can cause an insurance company to decline to continue coverage for a driver who insurance executives have deemed to be too high a risk. This reality places an increased importance on taking the necessary steps to mitigate or eliminate this risk, through the Vermont Judicial Bureau process.