Vegas Personal Injury Law Blog

INTRODUCTION

I was browsing the internet recently for information on auto insurance company settlement ratios.  The first information that I found involved the country of  India. That post stated that  insurance company settlement ratios ranged from 97.03 per cent to 53.85 percent.  Most  settlement ratios went down slightly from 2011 to 2012. This may be due to the current worldwide economic conditions.

I then found the website for Ohio Department of Insurance which indicated that in 2011, Ohio residents paid $5,056,298,077.00 in auto insurance premiums. Of that, State Farm companies collected about $959,000,000.00 and Allstate companies  collected $429,000,000.00. The complaint ratio for Ohio is  one complaint for each million dollars of auto premiums paid.  Insurers on the Ohio list include Allstate companies, American Family, Farmers, Geico,  Liberty Mutual Noationwide, Progressive, Safeco,  State Farm and USAA, which also are carriers that write auto insurance in Nevada.

I then came across a post entitled Top 6 Worst Auto Insurance Companies – 2011  on the Michigan Auto Law Blog.  This article listed Dairyland Insurance Company as receiving the  Worst Insurance Company in Michigan Award.

Allstate and State Farm were  rated 3d and 4th worst.  Allstate was criticized for cutting payments to its own customer as a way to boost its profits.  Further criticisms were for the use of a computer program designed to reduce claims payments, and for  pushing  injury victims to accept quick, but very low, settlements.

State Farm is the number one provider of auto insurance in the county. In 2009 it had a $777,000,000.00 profit nationally.  Michigan is a no-fault state.  State Farm is the most aggressive insurance company in Michigan accusing its own customers of fraud and putting them under investigation and fighting payment of their no-fault insurance benefits.

Progressive was the winner of the Michigan Auto Law’s Worthless Coverage Award, indicating that Progressive’s uninsured motorists coverage was worthless.

There are many internet postings indicating that Farmers is rated the worst insurance company overall.  They had the most complaints in California, Washington, Texas, Oregon, Arkansas, Arizona and Colorado.  They were criticized for worst ratings for collision repair, overall claim experience, worst claim  settlement representative, worst claim process and settlement procedures and consumer reports ratings. Their employee salaries and bonus encouraged and condoned delay, denial and underpayment of claims and forced litigation of claims.

Affiliated, subsidiary, sister and related companies of Farmers include domestics state companies with the Farmers in their name,(Example: Farmers Insurance Company of Arizona), Truck Insurance Exchange,  FFS, FIG, Fire Underwriters Association, Foremost Insurance Company, Mid Century Insurance Company, Prematic Service Corporation,  Truck Underwriters Association,  Civic Property and Casualty, Exact Property and Casualty, Bristol West Insurance, Neighborhood Spirit, Zurich North American, Zurich Financial Services Group and 21st Century Insurance.

Based upon my observations in handling personal injury claims against insurance companies for the past 30 years, I have come up with the following chart which rates the settlement potential of the major auto insurance carriers doing business in Nevada.  If you are a claimant you may want to refer to this chart to before you criticize  your attorney for not promptly settling your auto insurance claim.

BEST SETTLEMENT POTENTIAL

State Farm is by far the most solvent insurance company in the world. The chance of his insurance company becoming insolvent, I am told, is very low.  They are the number one auto insurance carrier in the nation.  Therefore, they can afford to pay more to settle an auto claim than any other insurance carrier in Nevada.  I do find that State Farm is quick to assign special investigators to first party claims where any fraud is alleged.  They will hire an attorney who will subject the insured to EUO (examination under oath). In the EUO the first thing that the attorney doses is to read insurance fraud statutes into the record and they have told my clients that they are sending a copy of the EUO  transcript the Attorney General.

WORST SETTLEMENT POTENTIAL

It is very difficult to settle car accident claim against Farmers Insurance in Nevada. I am told, and experience bears this out,  that Farmers doesn’t offer more than 1.3 times the claimant’s medical bills to settle a  pre-litigation personal injury car accident claim.  Farmers will also try to devalue the injured victim’s medical bills.  This makes it almost impossible to settle a Farmers claim, unless the claimant has Medical Payments Coverage that pays for all he claimant’s medical bills. Therefore, the chances of settlement of a Farmers claim are dismal  and litigation is almost necessary.

Farmers will pay car accident claims that have a value well in excess of their insured’s liability policy limits.

In litigation Farmers mostly uses in house counsel. Their in house counsel are very busy.  Each attorney has handles a lot of cases.  The attorneys are generally likeable individuals.  They sometimes, on egregious liability claims (i.e. drunk driving) or very high property damage car accident claims, will settle prior to an arbitration hearing or trial. In most cases, if the claimant gets a good arbitration award they will be willing to offer a more reasonable settlement offer, generally less than the arbitration award, to get the claim settled.  In some cases they will agree to pay the arbitration award plus any costs and prejudgment interest that may be awarded by the arbitrator.  Farmers, I believe tries to weed out those cases where the claimant’s attorney does not strongly believe in his client’s case to the extent that he is willing to go thorough litigation to get a higher settlement for his client. I believe that this strategy works with some attorneys.

Mercury,  Dairyland, American Access, Prudential and Progressive Insurance are companies that write a lot of minimum liability policies $15,000.00/$30,000.00) for their insureds.  They employ a strategy to low ball cases.  They do not want to pay out their minimum limits. They hire aggressive attorneys to handle cases and they often make you go through the time consuming arbitration program. And, when you win the arbitration, then they will exempt the small case out of the short trial program and now the attorney is in normal litigation.  In normal litigation the cost of trying  the case, including the cost of paying doctor to come to trial to testify,  is in many cases higher than the amount in controversy.  Of course, the down side exposure to the client associated with not prevailing in excess of a low offer of judgment is very high.  This potential downside exposure could be tens of thousands of dollars to the claimant. This puts pressure on the attorney and the claimant to accept a lowball offer of judgment served by the defense.

Progressive writes a lot of a minimum policies because of their television commercials and low premium advertisements.  Often they  get large claims against minimum policies and there is no underinsurance available. In these cases you try to get their insured to personally contribute to the settlement. However, with or current economy (most people don’t have any saving) this strategy doesn’t often work.

MEDIUM POTENTIAL FOR SETTLEMENT

Companies that fall into this category  are Geico, Allstate, USAA, American National, American Family, Met Life and  Nationwide.  However, these companies do not like low property damage cases. They do not like case that involve any questionable liability or comparative fault.  If there is comparative negligence element involved with a claim, they offer only a minimal settlement, and force the claimants attorney in litigation. On low impact cases they will hire biomechanical expert to inspect the vehicles, and he always renders an opinion  that nobody could have been hurt in the accident.

CONCLUSION 

The purpose of his article is to give you some indication of how various insurance companies in Nevada will react to your claim. You need to know what you are  up against on an auto insurance claim. This is the only way that you can make an intelligent decision to either settle or not settle your claim. I think that it is good policy to  explain to each client the adverse insurance company’s idiosyncracies on settlement , so that the client can be prepared for what is likely to transpire on his claim.

STORY LINE

A friend of mine recently was involved in a parking lot accident in which his two-door luxury vehicle sustained major damage.  Eventually his vehicle was taken to a certified repair facility for repairs.  After repairs were approved by his insurance company, they called him and advised him that another frame rail was bent and the extra cost of repair made his vehicle a total loss. The additional repair cost for the frame rail was about $3,000.00.

His insurance company offered him $31,000.00 for the total loss value of his vehicle.  My friend considered that price to be unfair.   He told his insurance company that his vehicle had a premium plus option package instead of a premium package.  His insurance company thereafter informed him that the premium plus option package increased the value of his vehicle and advised him that his vehicle was not a total loss and again authorized repairs. As of this date, the final disposition of this property damage claim has not been determined.

WHAT RULES APPLY TO TOTAL LOSS AND MAJOR DAMAGE?

TOTAL LOSS

Approximately one out of seven vehicles involved in an accident results in a total loss.

1. A total loss in Nevada involves a vehicle that has been damaged to the extent that the estimated cost of repair, not including the cost associated with painting any part of the vehicle, would exceed 65 percent of the fair market value (Actual Cash Value-ACV) of the vehicle immediately before the damage was incurred.  Vehicles with less than 65 percent damage are not considered a total loss and are not salvage vehicles.  If your vehicle has damage of  65 percent or more, it is considered a salvage vehicle.  The actual cash value includes sales tax, DMV and transfer fees.
2. Your vehicle also can be considered a total loss if it has been submerged in water to a point that the level of the water is higher than the door sill of the vehicle and the water has entered the passenger, trunk or engine compartment of the vehicle and has come into contact with the electrical system of the vehicle; or a vehicle that is part of a total loss settlement resulting from water damage.  An insurance claim for water damage will be under your  comprehensive coverage.
3. Non-repairable vehicle- A vehicle, other than an abandoned vehicle, that has value only as a source of scrap metal, or has been designated by its owner for dismantling, or has been stripped of all body panels, doors, lights, etc., or has been burned or destroyed beyond a restorable condition is a non-repairable vehicle.  Non-repairable vehicles are issued a Certificate and may not be restored to operating condition. If your vehicle qualifies as a total loss it becomes a salvage vehicle.

Vehicles Over 10 Years Old

Older vehicles, 10 model years old or older, are not considered salvage vehicles if the only repairs needed are a limited number of items. Specifically, the hood, the trunk lid, and/or up to two of the following: doors, grill assembly, bumper, assembly, headlight assembly and taillight assembly.

If the vehicle requires more repairs than this, the 65 percent rule applies.  For example, the 65 percent rule would apply if the grill, front bumper and one headlight assembly were replaced.  If only the hood, the grill and the bumper were replaced, the 65 percent rule wound not apply and the vehicle would not be considered a salvage vehicle. Remember that the 65 percent rule does not include any cost of paint or labor to paint the vehicle.

You Can Choose to Retain the Total Loss Vehicle

Before you decide to retain a salvaged vehicle you should consider the following:

1. The  insurance company will deduct the salvage value of your vehicle from the fair market value of your vehicle. If your vehicle is a total loss and has a fair market value of $10,000.00, the salvage value may be only $2,000.00.  So, if you retain the salvage you only get $8,000.00 from the insurance company. You can retain salvage and sell the salvaged vehicle to a salvage yard perhaps for more than the salvage value, however this option may not be worth your time. Or, you can choose to repair the salvaged vehicle on your own.
2. In accordance with NRS 487.860, a vehicle that has been issued a salvage title may not be registered in Nevada until it has been inspected by a Nevada registered garage, Nevada licensed body shop or Nevada licensed re-builder and the DMV.

License Plates

If your vehicle is total loss, remove your license plates from your vehicle. Your options are:

1. Transfer them to another vehicle within 30 days.
2. Surrender them to the DMV and apply for a registration fee refund.  You must have a copy of the Salvage Title to apply for a refund.
3. Surrender them to the DMV and receive a credit toward another registration.

You must transfer or surrender the plates before your cancel the liability insurance on any vehicle.

Application for Salvage Title 

If you have collision/comprehensive insurance coverage and your vehicle is totaled,  your insurance company will assist you in completing the Salvage Title procedures and application. If you do not elect to retain the salvaged total loss vehicle, you must transfer Title of your vehicle to the insurance company, and they will pay you the full fair market value on your vehicle. Once the Title is transferred, the insurer will have the right to the car as well as the duty to dispose of it.

Salvage Titles

A salvage vehicle means a motor vehicle, that at any time, has been declared a total loss vehicle, flood damaged, or non-repairable and has the term salvage or similar words placed on any title issued for the vehicle.

Salvage vehicles in Nevada are issued an orange-colored Salvage Title. An original Title is blue. A salvage vehicle may not be registered or operated on any public street until it has been rebuilt and inspected.  Once a salvage vehicle has been repaired, it becomes a rebuilt vehicle and may be registered and/or sold if the proper procedures have been followed.

Fair Market Value

Be aware that your idea of fair value and you insurer’s idea  fair value may differ drastically. Remember that you have the right to a fair settlement and the right to negotiate with your insurance company to get one. The insurance company has leverage over most claimants because the claimant often needs to get paid to get into another vehicle.  Only if the claimant is financially solvent, can he decide to keep fighting with the insurance company to get a fair settlement.  A fair settlement is receiving the amount you’ll need to by a like car, or a car of the same or similar model and the same year and condition of your totaled vehicle.

Records of  past maintenance and repairs, including costs can be helpful in the fight to obtain a fair total loss value from the insurance company. This does mean a dollar-for-dollar increase in value for the cost of the repairs, however the repairs will factor into the actual cash value calculation.

You have the option of seeking professional help if you still can’t get a fair  settlement value for your vehicle.  The question is, can you can afford it? You have the options stated in your insurance policy. Your policy may provide  for  an independent arbitration. You can always hire an attorney. Both courses of action will lead to additional expenses and delay . Before entering into arbitration or suing your insurance company, make sure it’s worth the fight and the extra costs.

Insurance companies rely on allegedly independent appraisal companies or computer programs to calculate the final amount that they will offer on a total loss.  Total loss adjusters make the initial assessment of value, and then enter information about the vehicle such as milage and condition, usually resulting in a lower settlement.  Remember that fair market value is not the Kelly Blue Book value on your vehicle. It is considered a value which is somewhere between the fair price to purchase a like vehicle from a dealership and the price to purchase a like vehicle from a private party.

Total Loss and NO Insurance

If an insurance company is not involved, and there is no third party insurance; and, you do not have collision/comprehensive insurance coverage, it is your responsibility to assess whether your vehicle meets the definition of a salvage vehicle. You must notify any lienholder within 10 days, and the lienholder must apply for a salvage title with 30 days.

When there is no lienholder, you must you must either apply for a salvage title within 30 days or sell the vehicle to a DMV-licensed salvage pool, automobile auction, re-builder, automotive wrecker or a new or used motor vehicle dealer.  You may not sell the vehicle without first obtaining a salvage title

When you retain a salvage vehicle, the re-built vehicle must be inspected by a licensed garage or body shop and the DMV before it can be sold or registered. It is he owner’s responsibility to complete these steps and to obtain a standard blue Nevada title  before the sale.  If your retain the vehicle but choose not to rebuild it, you should sell it only to a DMV-licensed salvage pool, automobile auction, re-builder, automobile wrecker or a new or used motor vehicle dealer.

Improperly selling a salvage vehicle can be a felony offense.  Sellers must disclose in writing that the vehicle is a salvage vehicle. All future titles will be normal Nevada Certificate of Title but will be “branded” which means that title will be labeled with the word ‘‘rebuilt” or other appropriate term.  The brand cannot be removed.  Any purchase may  considered a felony offense if the vehicle is valued at $250.00 or more.  Any aggrieved purchaser or lessee also can bring a civil suit against the offender.  If successful, the purchaser will be awarded court costs, attorney’s fees and whichever of the following is greater:

• Three times the amount of actual damages;
• Five thousand dollars; or
• Actual damages such as punitive damages as may be allowed by the court.

VEHICLES WITH MAJOR DAMAGE – DIMINISHED VALUE

If your vehicle major damage but is not totaled, what are your rights? All insures must be pressed to recognize and pay diminished value.   A diminished value  report will cost you about $59.00 and can be obtained from Claim Coach. Even though insurance companies will always tell you they don’t pay diminished value on your repaired vehicle, they are potentially on the hook for the diminished value of your vehicle.

Diminished value is the reduction of a vehicle’s market value occurring after a vehicle is wrecked and repaired.   A reasonable person will not pay the same price for a wrecked-then-repaired vehicle as he would for a vehicle with no prior accident history.  Even if the repairs are proper and certified, the vehicle will still lose value.  To collect diminished value from an insurance company is very rare.

In Nevada there is no case law, that I am aware of, involving diminished value. There is case law in other states on diminished value, but these cases involve large and expensive vehicles such as large boats and commercial airliners. It appears that nobody wants to go through the expense of and appeal to make case law on an insurance company’s obligation for paying diminished value on a repaired  passenger car. If we did have such a case that reached our Nevada Supreme Court, this could prove to be very problematic and financially detrimental to auto insurance companies in all states.

If you want to receive fair market value on a totaled vehicle and if you are looking for receiving diminished value on a repaired vehicle, be prepared and be ready to fight the involved insurance company.  Get your supporting  documentation together and  persistently bombard the adjuster with your arguments.  Who knows,  you may eventually wear them down.

If you have a rare, expensive or classic vehicle, you may want to consider obtaining stated value insurance. With stated value insurance, if your vehicle is totaled the insurance companies, must pay you the stated value.  This coverage is more expensive with traditional auto carriers, but  is much more affordable with specialty insurance companies dealing with classic and restored cars.

The purpose of damages in a civil case is to compensate a plaintiff for actual losses caused by the defendant wrongdoer. Therefore, the law provides that a wrongdoer in a personal injury case is responsible for the payment of the reasonable and necessary medical expenses incurred by the injured party as a result of the wrongdoer’s negligent or intentional acts or failures to act.

Generally speaking, the foundational requirements for the admissibility of medical bills into evidence in a personal injury case are misunderstood by many attorneys. First, the medical bills must be authenticated.  The authentication of medical bills can be accomplished by: (1) stipulation; (2) through the testimony of a custodian of records; (3) by an affidavit from the provider’s custodian of records; or (4) by the lack of objection during the disclosure provisions of the applicable rules of civil procedure such as NRCP 16.1.

To recover for his medical expenses a plaintiff in a personal injury case, such as a car accident or slip and fall injury, must present competent medical testimony that his treatment received in the form of ambulance, hospital, radiology, doctors appointments, physical therapy, chiropractic treatment,  medications, nursing services, pain management, surgery, anesthesia  and diagnostic tests were necessary as a result of the injuries caused by the defendant’s negligent conduct; and, that the cost or each item of medical expense was reasonable in amount.  These foundational requirements are separate and apart from the causation evidentiary requirements which I have covered in a prior blog.

Medical necessity means that the expense was incurred as a result of the injury caused by the defendant. Testimony by an expert witness is required to prove that a medical service was necessary.  Additionally, to meet the necessity requirement, the plaintiff may need to  present evidence to show that the medical service was standard versus experimental, appropriate and non-fraudulent, so that the bill can be admitted into evidence and the jury or judge can consider the medical bill in determining the defendant’s obligation to pay for this item medical expense.

The terms reasonable and necessary are also utilized in auto insurance policies and health insurance policies to invoke the insurance company’s  responsibility to pay for any medical expense and limit payments only to those medical bills that are both reasonable and necessary.  Many times these terms are not defined in the policy, or are briefly or unclearly defined.

Medical necessity means that the treatment was made necessary as a result of injuries from the accident, as opposed to treatment related to another medical condition. (The medical necessity requirement comes into issue when the injuries claimed are aggravations of pre-existing conditions such as arthritis, or when a plaintiff has been involved in multiple injury accidents).  In some instances the defense will take the position that, in order for medical treatment to be necessary, it must have some benefit in improving the plaintiff’s condition.

However, in some jurisdictions, when a plaintiff gives detailed description of the treatment procedures and clearly relates them to injuries from the subject accident, the medical bills can be properly admitted into evidence upon lay testimony, rather than upon the testimony of a medical expert.

Some states that have case law that holds that a defendant can receive the benefit of write-offs or adjustments deducted from a provider’s charges pursuant to insurance contracts.  Other states have adopted the collateral source rule.  The theory behind the collateral source rule is that a wrongdoer should not receive the benefit of payments made by insurance independently procured by the injured party and for which the injured party has paid  premiums. There are some states that have adopted the collateral source rule, that still give the defendant the benefit write-offs.  The argument for this position is that: (1) The plaintiff receives a windfall if he can receive compensation for write-offs; (2) No collateral source paid the written-off amounts; (3) Write-off amounts are illusory medical expenses and the plaintiff does not actually have to pay them. This position does not take into consideration that the injured plaintiff has to pay for his insurance coverage directly or indirectly (as a benefit of his employment) in order to obtain these write-offs, which is a part of the rationale for the collateral source rule.

A plaintiff also has to provide competent evidence that the cost of each medical expense is reasonable.  This means that the medical charge is customary in the medical community and is not inflated. A medical witness who testifies on the issue of reasonableness is not always required to  be a doctor, however some form of medical testimony must be presented (Medical billing witness or a nurse who is familiar with customary charges).  A doctor can testify as to medical necessity and to the reasonable and customary nature of the medical charges.  A defendant is only responsible for reasonable medical expenses, and is not necessarily responsible for the full amount charged by the health care provider for services rendered. Sometimes it is necessary, in cases where the plaintiff does not have a retained medical expert, to call as witnesses every practitioner who rendered the plaintiff medical care.  In cases where there is a doctor manages the patient’s care  and refers the injured patient for follow-up care with other providers, the referring doctor can testify as to causation of the plaintiff’s injuries as well as the reasonableness and necessity of the medical treatment provided by other practitioners, under circumstances where he is familiar with the charges for the ancillary services provided to the patient. As you can see, this saves many thousands of dollars in expert witness fees.

In order to recover for future medical expenses there must be medical testimony that states to a reasonable degree of medical certainty what future medical expenses will result from the original injury and the reasonable cost of those medical services. In the event that those medical services are projected over a lengthy period, then the cost of the future medical expenses must be reduced to present value.

The foundational requirements for admitting medical bills into evidence are not uniform. Some jurisdictions are more liberal than others and provide for the use of affidavits instead of live expert testimony.  The case law on reasonable and necessary medical expenses is not consistent, especially when it comes to collateral source issues.  There are very few cases that give a detailed explanation and discussion of the foundational requirements for the admission of medical bills into evidence.

Most medical experts do not understand how to articulate their opinions on legal causation.

The pivotal issue on most personal injury cases centers on causation.  A medical witness must, to a reasonable degree of medical probability, relate the injuries to the subject accident.  For future pain and suffering and future medical care, the standard is to a reasonable degree of medical certainty. (Other legal foundational requirements involving medical necessity and reasonable and customary charges will be addressed in future Blogs.  This blog is limited to he issue of medical causation for past injuries).

“Reasonable medical probability, “means “more probably than not probable” (51%).

“Medical certainty”, as it applies to future damages, means that future medical expenses and/or future pain and suffering are reasonably certain to occur in the future.  It is a higher standard than reasonable probability.

The follow-up question in a deposition by the defense and under direct examination by plaintiff’s counsel at time of trial is: “What are the bases of your opinions on causation?  Keep in mind that causation is never a slam dunk; and, no accident case that involves litigation has a perfect causation scenario.  Pre-existing conditions, prior accidents, prior treatment, diabetes and osteoarthritis, even if remotely relevant,  are always raised by the defense to attack causation.  This is a format providing  examples of responses to the question, “What are the bases of your opinions on causation?”

1. My review of the medical records and the medical history provided by Mr. X indicates that Mr. X was asymptomatic in the affected areas prior to this accident for ______ (months) or ______ (years).  His injury symptoms developed within _____(hours) _____ (days) after being involved in this accident.  A delay in the development of  neck and back injury symptoms following a motor vehicle accident is he rule rather than the exception. (Explain why).
2. Mr. X was not taking pain medications before the accident and required pain medication, muscle relaxers and anti-inflammatory medications after the accident.
3. After the accident, Mr. X’s pain scales were high (give them a range) (Explain how pain correlates with traumatic injury).
4. Within ____ (hours) ______ (days) of the accident, Mr. X had positive neurologic and orthopedic test results (For each positive test and explain what injury it indicates).
5. After the accident, Mr. X had reduced range of motion in he following areas:  (give specific examples and explain how reduced ranges of motion correlate with injury).
6. After the accident, Mr. X was referred to a neurologist or neurosurgeon or orthopedic  surgeon for evaluation (explain the reasons why the referral was medically necessary).  Mr. X, prior to this accident had no such referrals. Explain the concern that conservative treatment was not sufficient to resolve the patient’s symptoms indicating a mores serious condition than he had in he past.
7. After the accident, Mr. X was referred to pain management (explain the reasons why the referral was medically necessary).
8. Pain management performed X, Y, Z and the results were A, B, C.  This confirmed the injury because ___________________________________.
9. Although Mr. X had some (neck and back) treatment before this accident (if it applies): a)    he recovered from his injuries and was asymptomatic before this accident; b)    he returned to an active lifestyle without pain; and c)    he participated in sports, fitness and recreational activities without limitations.
10. After the accident Mr. X’s activities were limited in the following ways ________.  These limitations do not appear in his pre-accident  records.
11. The accident as described by the traffic accident report and/or statements and/or answers to interrogatories and/or depositions depict an accident or event capable of causing movement that resulted in probable injury potential. Movement of  Mr. X’s body is confirmed by the entries in the medical records  and/or accident report and/or statements (Interrogatory answers, depositions) that I have reviewed.  These documents indicate that_________________________________________.
12. Although there is no way directly to equate injury to property damage, in my opinion, the significant events about the accident on injury potential are ______________.
13. Mr. X, because of his pre-existing arthritic condition, was more prone to injury than a person without osteoarthritis.  Osteoarthritis is generally an asymptomatic condition that can be made symptomatic by trauma. (Explain how conditions such as diabetes can affect the healing of musculoskeletal injuries and why prolonged treatment may be required).
14. Mr. X was in a posture or position at the time of the accident that made him more prone to injury (head turned to the side, body twisted, looking in rear view mirror, etc.).  He did  not anticipate the occurrence of the accident,  all of which made him more prone to movement and injury. (This is important for minimal property damage accidents).
15. The pain generator for Mr. X’s symptoms was determined to be through pain management procedures and radiology reports at the ___ level of the spine.  (Explain what the pain generator is and link it to the radiology reports and pain management findings to that level of the spine).
16. Mr. X’s symptoms are consistent with a pain generator at that level of the spine. I find this correlation to be significant factor concerning causation.
17. Even surgical candidates have good days and bad days.  Their ability to perform is dependent on their use of medications so its not unusual for Mr. X’s condition to have its ups and downs dependent upon medication consumption and activity level.  It comes as no surprise to me that his medical records indicate that Mr. X had days when he was in less pain and was  functional than others.
18. Mr. X’s prior medical conditions and prior injuries do not explain the acute onset of injuries after this accident.  None of these prior medical conditions or prior injuries in my opinion form a reasonable basis for me to conclude that the accident did not cause Mr. X’s injuries for the following reasons: ____________________.
19. Although there are some inconsistencies in Mr. X’s reporting of his medical history and symptoms to his medical providers, these types of inconsistencies are present in most medical records.  Not all physicians can possibly take down everything that a patient tells them during an appointment.  If it were possible for two doctors to simultaneously  take a history and examine a patient, their notes would be different.  All patients have lapses of memory when giving a medical history.  These are common occurrences.  Inconsistencies in medical records do not necessarily mean the patient is lying.  I found Mr. X to be forthright and a honest historian and his medical records in my opinion do not support a secondary gain motivation in pursuing treatment.
20. Without Mr. X experiencing a traumatic event, it would not be probable for him to coincidentally develop these long-lasting and severe symptoms.  This degree of symptoms would not be caused by performing normal everyday activities.
21. In my opinion, from the documents that I have reviewed and my examination and treatment of Mr. X, I cannot conclude that the accident didn’t cause Mr. X’s injuries and resulting symptoms.  Based on the information that I have, in order for me to reach the  conclusion that the accident did not cause Mr. X’s injuries, there must  must be a reasonable basis for me concluding that something else, other than the subject  accident, caused the onset Mr. X’s symptoms.  Considering all of the evidence that I have, there is no reasonable basis for me to conclude that this accident did not cause Mr. X’s injuries.

Most likely no attorney has ever received a medical expert report that covers all of most of these points on the basis for a causation opinion.  The reason that we don’t get these types of reports is because nobody ever provides medical experts with this type of format.  Now that  you have this format, you can incorporate it into your medical reports and use it to prepare for your deposition and trial testimony?

If a medical expert presents no bases for his opinions on causation other than a temporal link between the injury and the accident, or that the patient relates that his symptoms began after being involved in the subject accident, this is a very weak and insufficient basis for establishing causation on an injury case.