Is Your Patient Faking It? How You Can Help Lawyers Determine Legitimate Injury

Ontario drivers pay some of the highest auto insurance rates in North America,^[1] in part due to fraud. Fraudsters cost the industry an estimated $1.6 billion annually.^[2] Medical professionals are in a position to help lawyers combat fraudulent personal injury claims and ensure that legitimately-injured patients receive the help they need.

The Problem With Fraudulent Personal Injury Claims

Some people look the other way when a patient exaggerates their injury, but this dishonesty costs everyone.  Fake personal injury claims cast suspicion on all claims, making it more difficult for patients who are truly suffering to prove their cases and get the help they need.

When an insurance company suspects fraud, a patient may have to make time to attend Examinations Under Oath or Motions and provide statements and Statutory Declarations.  Suddenly, there is more pressure on the claimant to prove their medical situation, turning their focus away from healing. At the same time, this increase in paperwork and court time wastes resources in the legal system and raises costs for other insurance policy holders and taxpayers.

Fraud Can Be Subtle

There are two types of fraud: hard fraud and soft fraud.  Hard fraud is the most extreme: it involves deliberate planning.  These are where a patient plans an accident or fakes an injury.

In soft fraud, a patient exaggerates their pain and extent of their injury to secure a higher payout, or they might report a higher value on lost or damaged property. Although this type of fraud is not as extreme, it is still fraud that is costly to everyone.

In both cases, the claimant may face serious consequences. They may owe the insurance company for monetary gains and benefits, they may have difficulty qualifying for insurance in the future or pay higher rates,^[3] and they may face criminal charges.

How to Help Lawyers Spot Fraudulent Insurance Injury Claims

Lawyers have a duty to help their clients receive the most appropriate payment, but as officers of the court, they also have a duty to report fraud.  Attorneys have ways of spotting fake personal injury claims, but they do not have the thorough medical knowledge to determine when a client is faking pain.  They rely on your help, not only to reduce personal injury claim fraud, but also to ensure your legitimately-injured patients get the financial help they need.

Ensure Clinical Notes and Medical Records are Complete

Since lawyers and other officers of the court do not have extensive medical knowledge, they rely on medical records to determine the severity of the claimant’s injury and their level of pain. This in turn determines the settlement amount.  Your records reveal the number and regularity of appointments, injury diagnosis and prognosis, and recommended referrals, requisitions, and consultations.  You can attest to the credibility, permanence, and seriousness of an injury.

When your patient has a legitimate injury and is not faking pain, your notes support this.  If your diagnosis does not match what your patient is claiming, lawyers will be suspicious that a patient is making a fake personal injury claim.  Ensuring that you provide complete medical records to lawyers helps reduce mistaken suspicion of personal injury fraud.

Injury Mitigation

When a patient is coping with a legitimate injury and pain, they should be following your advice for treatment and pain mitigation. For example, attending physical therapy sessions, taking prescribed medication, and making regular visits to their doctors and therapists.  This will help your patient get better and hopefully regain their pre-accident lifestyle.

If your patient is not mitigating their injury, find out why.  They may simply be having trouble getting to therapy appointments or paying for a prescription.  Or, they could be faking pain.

As a medical professional, you are best suited to determine why a patient is not mitigating their injury.  You can share this information through your clinical notes, reducing suspicion of personal injury fraud.

Resuming Work and Lifestyle

If your patient has resumed their work duties and pre-accident lifestyle, discuss with them if their injury is limiting their ability to function and ask if their job duties have been modified or if accommodations have been made.  Check whether they have followed your advice on limiting their physical strain.  As a medical expert, you are best suited to determine if your patient’s work function and lifestyle are in line with their reported pain and injury. If not, you might suspect that they are faking pain.

Matching Injury to Accident

As a medical professional, you have likely come across cases that are similar to your current patient’s injury.  If your patient has described a certain type of accident, but their injury type and pain do not seem consistent with that sort of physical damage, it might suggest that they are faking pain.  Your medical knowledge helps determine if your patient’s injury seems consistent with property damage from an accident, and you can pass this information along in your medical notes.

Catching Lies

Medical doctors may face challenges determining pain levels and can even be duped by patients who mimic symptoms they researched on the internet.  This is because medical professionals usually focus on helping people, not detecting fraud.

One patient survey discovered 77 percent of patients have lied to their doctor at some point — most often about embarrassing things like diet, exercise, and sex — but sometimes regarding pain. Doctors suspecting fraud may catch lies by firing rapid questions at their patient, or by asking leading questions suggesting a totally different diagnosis.^[4]

What to Do if You Suspect Your Patient Is Faking Pain

Even experienced doctors face challenges determining fake pain.^[5] If you suspect your patient is faking pain or exaggerating an injury, you can reflect your medical opinion on the patient’s records.  These records are then shared with both the patient’s lawyer and the insurance company’s defence team.

When in doubt, you can always send your patient for tests or to a specialist for a second opinion to determine if they are, in fact, faking an injury. Insurance surveillance can also help determine fake pain if there is any suspicion.^[6]

When you do have patients with a legitimate personal injury, use your medical notes to help support their case and ensure that they get the best possible financial outcome to help them heal.  To learn more about preventing fraudulent personal injury claims, consult the resources on GosaiLaw.com or contact Gosai Law to refer an injured patient for legal help.