I’m proud to announce that last week the firm settled a case for a young woman who had started her own successful private school here in Oregon, and sustained a mild traumatic brain injury that impacted her ability to continue running the school normally. Why write about this? Because the case demonstrates how important lawyer selection is in TBI cases. Case outcome can hinge on very small pieces of knowledge.
Our client was insured by a very large insurance conglomerate, headquartered in another country, on the other side of the world. In recent years, the company has made massive profits and purchased several US insurance companies, including the one who insured our client and her business.
The client was hit by an uninsured motorist and sought help from her own insurance company through her Uninsured Motorist coverage. The only thing that must have been clear to the adjustor (who was located in another state) is that Oregon has no penalties for insurers who refuse to act reasonably toward their own policyholders.
First, the company denied the client’s medical care charges through her PIP insurance until the client retained our office. Then, when we submitted a detailed offer to settle setting forth the serious nature of her injuries, the pre-litigation offer was an insulting $5,000 - less than the amount of her outstanding medical bills. The company then refused to arbitrate the case, forcing us to file litigation in order to get the client fair compensation for her injuries. Clearly the company intended to punish the client for simply making a claim on the insurance benefits she had purchased from the company. Once we filed litigation, the company refused to provide the documents we requested. They then hired a psychologist to do psychological and neuropsychological testing. We received the expected opinion from the insurance doctor - in her opinion, the client’s problem was purely psychological and not related to the collision. The defense psychologist’s opinion was based upon what she claimed were abnormal results on a well known psychological tests called the MMPI and the TOMM. Excuses for our client’s brain injury symptoms varied from a divorce a few years before, to prior emotional abuse. In short, the changes in her cognitive abilities were related to anything but the crash. Instead of accepting the test data from the client’s doctors proving the brain injury, the insurer and its doctor were claiming that the client was making up her symptoms and exaggerating them.
It was only after we pointed out the significant flaws in the psychological tests that the defense got worried. First, we asked about the score on the TOMM - a test they were alleging proved my client was malingering. The test was discussed in the insurance psychologist’s report, but the score was never reported. When required to disclose it, the test score actually was perfect - our client hadn’t attempted to exaggerate her symptoms at all. The insurance psychologist claimed the test showed the client was malingering (intentionally lying about being hurt), but in fact, the real test results showed that the client had provided her best effort on the testing - just the opposite.
The insurance psychologist also claimed that the psychological testing showed personality disorders that would suggest exaggeration by the client. We then asked what version of the MMPI personality test had their psychologist used - the MMPI-2 or the MMPI-2RF? Once we found out it was the MMPI-2RF, we asked for the official computer print outs of the test scores that hadn’t been provided. Once those were provided, it was clear that the client’s correct demographic information wasn’t entered. Why is that important? Because it sets what is considered normal test scores for a particular person. Men and women test differently, just like they do for many blood tests (Some scales on the MMPI are inherently biased against women - particularly the “fake bad scale,” recently renamed the “symptom validity scale.”) Gender is not the only factor that changes the normal range on the MMPI-2RF. Someone with physical injuries has different normative scores. There are more demographic categories as well that were not entered. Moreover, the Gass correction scores hadn’t been applied to determine the impact of her physical injuries. Why hadn’t the insurance psychologist applied the correct demographic data so that the correct normal ranges showed up on our client’s printout? Because without them entered, the client looked like she had a personality disorder. It falsely implied that our client was faking an injury.
Eventually, after the third round of requests for corrections to the MMPI-2RF report so that it was accurate, we did get the corrected computer print outs from the MMPI-2RF psychological testing. Out of all of the “scales,” there was only one slightly elevated, and that one was fully explained by the client’s known physical injuries. Once the defense lawyer saw that, it was clear that the clients injury was not psychological in origin. The insurance doctor had no proof that the client was malingering (despite her report saying the opposite) and once the correct demographic information was entered about the client, the personality testing showed no signs of abnormal psychology. The insurer had no way to defend the claim or explain their poor treatment of their policyholder to a jury.
The result? The insurer increased the offer from $5,000 to $400,000. The client was in tears, thankful that we knew how to disprove the absurd insurance company allegations that she was exaggerating or had a psychological condition that was causing her problem.
The difference between an insulting $5,000 settlement offer and a $400,000 settlement was based upon a small point. It is that type of critical knowledge about what to look for in the brain injury testing that can dramatically change the value of an injury case from something that is insulting and which provides no funds for past care, future care or financial losses, to something that is more appropriate for the level of personal and financial damage sustained by the client.
Unfortunately, this type of deception by insurers in brain injury claims is not unusual at all. Insurance psychologists often hide behind the copyright protection on the tests that does not allow lawyers to ever view the test questions or scoring sheets. So, while they often claim a certain test proved faking, the reality is that the client’s score doesn’t even meet the threshold to qualify, even if the test proved what they claim (which it often does not.) Brain injured people, who do not have an attorney with this type of knowledge face a serious problem that can be the difference between winning and losing.
This case is also ongoing proof that insurers in Oregon attempt to significantly underpay claims, not expecting attorneys to actually file litigation and go forward to trial. There are a few reasons for this. First, insurers in Oregon know that their own policyholders cannot sue them for refusing to provide good-faith offers because the Oregon legislature has failed to provide policyholders with a private right of action against their own insurance company. This means that if Oregon ever faces a serious natural disaster such as an earthquake or flood, insurers can deny claims and Oregonians will be left with no recourse beyond the contract value that is already owed. Insurers can flat out deny a claim and their policyholders can’t do anything about it no matter how outrageous the conduct.
Secondly, with Oregon’s auto claim payments the 7th lowest in the country, only 2% of the claims filed for litigation, and only 0.4% of those litigation cases going to trial, it is important that the lawyer handling the most serious cases is experienced going to trial and armed with the necessary knowledge to represent the client in the best way possible. Some media may want you to believe that there is a litigation crisis in this country, but the reality is that civil litigation on auto claims has fallen by 70% between the last two statistical reports by the US Department of Justice, Bureau of Statistics. A recent report by Multnomah County demonstrates shows that Oregon’s largest county has civil litigation rates that are 1/5 of the national average.
How am I going to celebrate? I’ll be in trial for the next two weeks on another case where the insurer refuses to make an appropriate offer for a man hit by a dump truck, and pushed into a tree. Real trial lawyers actually go to trial. After that, I’ll be lecturing at the Auto Litigation 3.0 seminar in Chicago on spinal cord injury cases, and learning from other top litigators how to better represent our clients. It is what I do to provide the best quality of representation to our clients.
For more information on the type of cases we handle, feel free to visit our web site, which also contains extensive information on brain injuries and other neurological injuries: www.deshawlaw.com