Brain Injury

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.

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.