• David Omer

Overdisclosure: How Much Should You Tell the Adjuster?

This article pertains to you if you are pursuing a personal injury claim through the liability insurance policy of another person who has negligently injured you. If you're pursuing a claim through your own insurance, a different set of rules apply. If that's the situation you find yourself in, stay tuned. That article is coming soon.

I'm handling my own personal injury claim. What do I need to know?

I hear a lot of horror stories about people who decided to handle their own personal injury claim. Let me be clear here; I'm not saying that it can't be done. Under certain circumstances, it might actually be more beneficial to handle your own claim rather than paying an attorney to do it. What you have to keep in mind is that personal injury claims have a lot of moving parts. They implicate a lot of different law, involve a vast amount of minute details, and as such it's really easy for an unpracticed hand to make mistakes. If you don't play your cards right, those missteps could be fatal to your claim.

But I have to do what the adjuster asks, right?

No! One of the major mistakes that I see all too often occurs when an insurance adjuster asks an unrepresented claimant for their medical records, or worse, for a medical records release. A lot of folks happily comply, assuming that they're required to do this before the insurance company will play ball. Spoiler alert: you're not. The insurance company isn't entitled to any of your medical records unless and until a lawsuit is filed.

So why would the adjuster ask for my records in the first place?

Well, there are a few reasons. The big one is that the insurance company isn't going to make you an offer until they see evidence that you've actually been injured. If you're claiming a serious spinal injury, for example, it stands to reason that you should have plenty of treatment records to back up your claim. The adjuster wants to see those records - and the bills pertaining thereto - before he or she decides whether to make an offer of settlement. This approach is logical; it makes sense and it's reasonable. But that's not the only reason why the adjuster might ask for your records.

Another big reason is that the adjuster wants to look through your records looking for what we call "pre-existing conditions." Let's go back to the spinal injury example. You're claiming a spinal injury because that's what you've suffered. But your medical records reflect that you, like nearly everyone else in the world, have exhibited signs of "degenerative disc disease." This just means that gravity has had the predictable effect on your spine over the years, but the adjuster will often point at that as evidence that your injuries are the result of something other than the insured party's negligence. It's a tool that adjusters use all the time to limit settlement amounts, or to deny claims altogether.

Adjusters also use medical records to look for "intervening" causes of your claimed injuries. If you hurt your back in a car accident a month ago, then fell off of a ladder at work two weeks ago, the adjuster is likely to point at the ladder incident as the "intervening" and/or "superseding" cause of your back injury. That may not be the case and it isn't fair to you, but insurance adjusters are hired to save their employers money. Access to your medical records will often allow them to do just that.

Good grief. Definitely want to avoid that!

The worst-case scenario occurs when a claimant agrees to sign a release of his or her medical records to the insurance company. This allows the adjuster to get ahold of all of your medical records, going as far back as the adjuster might be inclined to look. That means that if your medical history for your entire life includes any evidence whatsoever of pre-existing conditions, intervening injuries, or even anything that could embarrass you or dissuade you from pursuing your claim, the adjuster can find it and use it against you. One hundred percent of the time, universally, it's better to get the records yourself before giving anything to the insurance company.

So how do I handle a request for my medical records?

So now that we know what not to do, what's the best course of action when the adjuster asks for your medical information? There are a couple of things, depending on where you are in your treatment. If you're still treating, tell the adjuster. Let him or her know that when your treatment is done, the relevant records will be included in your demand. If you're done treating and you haven't done so already, you'll need to include the relevant bills and records in the demand letter that you send to the adjuster.

Oftentimes after receiving the demand, the adjuster will ask you for more information, which could include additional bills and records. At that point, you need to make the decision as to whether the adjuster's request is reasonable and relevant to your claim. If it isn't, tell the adjuster. You're not required to disclose any information, particularly if it's irrelevant, and the adjuster isn't entitled to it, either. It's also perfectly fine to send the requested information after redacting any information that isn't relevant to your claim.

Keep in mind that there's a balance to strike when it comes to how much information you should give to an adjuster. Too little, and the adjuster could deny your claim for lack of evidence. Too much, and you might accidentally turn over something the adjuster can use against you. Keep it reasonable and guard your private information; it could save your claim.

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