P.I. Evidentiary Burdens of Proof That Win The “Greater Weight” Of The Evidence Challenges

Are you excited about representing claims when there are varying opinions? Probably not.
But this strategy might keep you from receiving an unfair settlement.

 

Prevent Unfair Settlement Valuation

To reverse the trend of unfair, low settlement valuation of accident victims, plaintiff attorneys are now using the process of “Independent Medical Validation” (IV) to present evidentiary burdens of proof in court admissible format to establish the preponderance, eliminate varying opinions and win the presumptive “Greater Weight” of the evidence challenges.

The process of Independent Medical Validation is used primarily in auto accident injury related claims to eliminate varying opinions and determine whose opinion carries the “Greater Weight” of the evidence.

What Are The Arguments That Lead To Low Settlement Valuation

In auto accident claims, evaluators often disagree about the injury types, degrees of impairment or when clinical findings are not obvious. Other arguments arise when prior accidents have occurred or when there are pre-existing conditions or when impact speeds were low and there is no visible property damage.

Do Insurance Companies Always Play Fair?

Insurance companies have long used independent medical evaluators (IME’S) and now plaintiff representative law firms and third-party claim administrators are turning to the process of independent medical validation (IV) to counter the opinions of the IME’s regards the facts of the injury case to confirm the veracity of claims by injured individuals for automotive, personal injury liability insurance coverage and to show which side meets the evidentiary burdens of proof of evidence of injury.

Plaintiffs Fight Back

We help our clients to establish the preponderance of evidence to meet evidentiary burdens of proof in admissible format by verifying the validity, nature, cause and extent of injuries and document and represent injuries in a non-inflammatory nature to eliminate varying medical opinions and establish which side meets the Greater Weight of the evidence and adheres to the Quality Standards (QS) set forth in authorities and provide fast, efficient and quality IV services.

Jurisdiction Not An Issue

We also provide our clients with the local presence, expertise and broad geographic coverage they increasingly require. Our size and geographic reach give our clients access to our medical panel and our proprietary information technology infrastructure that has been specifically designed to streamline the complex process of determining the Greater Weight of the evidence complying with “authorities’, regulations and client reporting. Our primary service is to provide IVs with accompanying letter of validation, meeting evidentiary burdens of proof of medical claim determination to give our clients authoritative and accurate answers to questions regarding the nature and permanency of medical conditions or personal injury.

We provide IV’s which consists of an accompanying medical validation report providing evidenced based data to establish the preponderance in admissible format consisting of evidentiary burdens of proof, by members of our medical panel without conducting physical exams. We also provide review of physician chart notes to examine the medical points of a claim and review of medical care rendered and relate its conformity to Quality Standards and accepted standards of care.

Authorities
Our size and geographic reach give our clients access to our medical panel and our proprietary information technology infrastructure that has been specifically designed to streamline the complex process of determining the Greater Weight of the evidence complying with “authorities’, regulations and client reporting. Our primary service is to provide IVs with accompanying letter of validation, meeting evidentiary burdens of proof of medical claim determination to give our clients authoritative and accurate answers to questions regarding the nature and permanency of medical conditions or personal injury.


NOTIFICATION: Please take notice that such process of Independent Medical Validation presents: Medical Determinations, Memorandum Of Points, Statements of Undisputed Facts, Declarations, Exhibits and Authorities, intended to present evidentiary burdens of proof in admissible format to establish preponderance, eliminate varying medical opinions and show the Greater Weight of the evidence. One of the purposes of the process of IV is to produce enough “evidence based data” by one side to create a belief that its version is more likely true than not. This process is for settlement /discovery Purposes: not e-filed in court file. The evaluation and report can be filed concurrently with the Insurance Company, Adjuster, Supervisor, IME’s, Administrators and to all parties and their attorneys of record. If such evidence based data comes under dispute, such dispute must show that the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

The Question Is: By Whose Standard Is It Determined Which Is The Model Or Best Practice? 

The Answer is: By Process Of Independent Medical Validation to establish the “Great Weight”  Cain v. Bain,709 S.W.2d 175 (Tex. 1986)

Click here to see sample of first 5 pages of an Independent Medical Validation Report.

We provide our IV physicians and other medical providers with seamless document management systems to adhere to Quality Standards and authorities to assess evidence based data to eliminate varying opinions among medical providers.

HOW DOES ONE GO ABOUT ELIMINATING THE COMMON LITIGATION OBSTACLES IN AUTO ACCIDENT RELATED INJURIES?
Attorneys are Now Requesting The Independent Process Of “Medical Validation” To Eliminate Varying Opinions And Win The “Greater Weight” Of The Evidence Challenges associated with varying medical opinions arise when:
  • There are varying medical opinions
  • Medical evaluators cannot reach agreement about injury types
  • Clinical findings are not obvious
  • Physicians cannot differentiate one type of impairment from another
  • Physicians don't agree about the degree of impairment
  • There have been unfair, low settlement offers
  • There have been prior accidents
  • There have been pre-existing conditions
  • There was no visible property damage to the vehicle
  • Collision speeds were low
  • Injuries are difficult to see with the naked eye
THE PROCESS OF INDEPENDENT MEDICAL VALIDATION IS THE STANDARD FOR DETERMINING WHICH IS THE MODEL OR “BEST PRACTICE?”

Greater Weight: Court Approved Evidentiary Burdens of Proof to establish preponderance, eliminate varying opinions and win the  GREATER WEIGHT:

In reviewing a “greater weight” challenge among varying medical opinions, one may examine the entire record by process of MEDICAL VALIDATION to determine:

  1. “If the finding under medical validation is conclusive of the “greater weight,” and preponderance of the evidence is clearly medically validated and just”.
  2. “If the greater weight and preponderance of the evidence are shown to be medically validated and support its existence”.

THE QUALITY SYSTEM (QS) REGULATION DEFINES MEDICAL
PROCESS VALIDATION AS;

…Establishing by objective evidence that a medical process consistently produces a result or end product, meeting its predetermined specifications, stating how validation will be conducted, including evaluation parameters and what constitutes acceptable test results”.

THE A.M.A. GUIDES STATES:

The evaluator who more closely follows the guides will be the evaluator whose opinion is
accepted as choice.

Cain v. Bain,709 S.W.2d 175 (Tex. 1986):
In reviewing a “great weight” challenge, we must examine the entire record to determine if: (1) there is only “slight” evidence to support the finding; (2) the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust; or (3) the great weight and preponderance of the evidence supports its nonexistence.

Independent medical process validation is a key element in assuring that the medical and legal bases are met for medical principles, their determinations and goals.

…”If the preponderance of the medical evidence contradicts the Impairment rating contained in the report, another doctor can be called upon to dispute according to the A.M.A. Guides”.

When Medically Validating A Case, One Shall Minimally Provide The Following 4 Points Of Validation:

  1. Identify objective clinical or laboratory findings of permanent impairment for the current compensable injury
  2. Document the specific laboratory or clinical findings of impairment
  3. Analyze the specific clinical and laboratory findings of impairment
  4. Compare the results of the analysis with the impairment criteria and provide the following:
    • 4a).A description and explanation of specific clinical findings related to each impairment, including percentage (%) impairment rating of the whole person and
    • 4b). description of how the findings relate to and compare with the criteria described in the applicable chapter of the Guides to the Evaluation of Permanent Impairment.

Q: Why Use Independent Medical Validation?

Case Audit Settlement Evaluation, LLC, (CASE), provides a 26 point Independent Medical Validation to: overcome common litigation obstacles, eliminate varying opinions, establish the preponderance of evidence in court accepted evidentiary burdens of proof format and win the preseumptive “Greater Weight” of the evidence challenges, which is not being done by narratives or simple narrative style demand letters today.

WHAT TO INCLUDE IN THE DEMAND TO PREVENT UNFAIR SETTLEMENT VALUATION
“Personal injury lawyers are aware that the insurance industry has an arsenal of claims handling software’s and computer programs intended to cut claims payments. Such claim assessment software, including one of the most widely used is Colossus, from Computer Sciences Corp. (CSC). Colossus, according to CSC spokesperson Marian Kelley, is used by more than 50 percent of the nation's claims adjusters and by 38 agencies that represent more than 300 insurance companies. Others include; Injury IQ, Injury Claims Evaluations (“ICE”) and Claims Outcome Advisor (“COA”).

The factors that produce value and need to be assessed in a Colossus evaluation are referred to as “Decision Points” and “Value drivers” which have been kept secret by the insurance companies. Failure to identify and include these “Value Driver” factors in the medical chart notes and “mirrored” in the attorney demand letter in the correct language, format and sequence in order to interface with the insurance companies’ software’s to be considered for valuation.

The process of Independent Medical Validation by a disinterested 3rd party MD, meets evidentiary burdens of proof in court admissible format to establish preponderance, eliminate varying opinions and win the “Great Weight” challenges.

Factors That Should Be Independently Medically Validated and Included In Every Demand:

In response to the data contained in both the medical chart notes and the demand, Colossus will then bring up “drop-down” screens seeking additional information. Here are some of the “pop-up” questions Colossus will ask when seeking data that comprises the value of the claim and which should be validated for the presumptive “Great Weight”.
  1. checklist Injury types [according to: body parts, functions, systems, organs]
  2. Physical examination findings
  3. Clinical evaluation objective tools
  4. Evaluation of injury mechanisms resulting in injury types
  5. Evaluation of loss of function (International Classification Of Functioning – ICF)
  6. Diagnoses (ICD - International Classification of Diagnoses) Codes)
  7. Symptoms and Complaints [according to: intensity, frequency, duration, type, radiation, effects]
  8. Duties Under Duress
  9. Loss Of Enjoyment
  10. Documentation of treatment with respect to diagnoses & costs
  11. Prescriptions with respect to treatment, diagnoses & costs
  12. Referrals with respect to injury types
  13. Diagnostics, labs and specialty evaluations with respect to injury types
  14. Immobility devices with respect to injury types
  15. Stability of the medical condition(s)
  16. Static V. Stable injured body parts
  17. Medical determinations overall
  18. Prognosis of each individual body part involved
  19. Prognosis overall
  20. Future treatment plan
  21. Future treatment costs
  22. MMI (maximum medical improvement) per each involved body part
  23. Spine Impairment Summary
  24. Specific Disorders Of The Spine
  25. Regional impairments
  26. 26. Whole Person Impairment rating
CLOSING COMMENTS

If you’ve perused the sections on this site, you are reading that plaintiff attorneys are overcoming the challenges they face in personal injury cases by providing evidentiary burdens of proof of injury in the court admissible format known as Independent 3rd party Medical Validation.The process of Independent Medical Validation (IV) is the courts accepted evidentiary burden of proof of injury used to eliminate varying opinions, establish preponderance and win the presumptive “Greater Weight” of the evidence challenges and establish that soft tissues injuries meet “Serious Injury Thresholds.

Aaron DeShaw, ESQ., in Portland, Ore. has written a book called "Colossus: What Every Trial Lawyer Needs to Know." In his book he says that “narrative reports are not considered a source of data for input and therefore are not reviewed by adjusters”.

Attorney DeShaw further says: "While the legal profession has historically used narrative-style demand letters to convey claims, much of the information provided in such a demand letter has no value in Colossus. Only a minority of lawyers and doctors have a clue what's going on”.

Most importantly, Mr. DeShaw further reports that attorneys need to convey data about the claim using "Table" format. (To see sample of table formatting, click on the link in the home page of this site; sample of first 2 pages of an Independent Medical Validation Report).

Dr. Frank Liberti, author of: "Unfair, Low-ball Settlements Not Accepted" says: "You can’t rely on narrative reports or simple demand letters today. We've learned that demand letters must include "Tables" and that simple demand letters aren't enough and medical narrative reports are not admitted as evidence. The court approved method of establishing evidentiary burdens of proof has been detfined as the process of Independent Medical Validation. Cain v. Bain,709 S.W.2d 175 (Tex. 1986): It can make the difference in settlement determination and should be utilized by every plaintiff attorney. representing injuries today".

While narratives may not be generally reimbursable, the process of Independent Medical Validation is recognized by CPT Code and reimbursable by insurance. To learn more or order an independent medical validation to eliminate varying opinions and establish the “Greater Weight” of the evidence to overcome challenges, you are invited to contact us and visit:

www.accidentworks.com

Attorneys who elect to incorporate the process of independent medical validation on any accident case may do so on an “as needed” basis by contacting:

Case Audit Settlement Evaluation, LLC

CASE Logical Database Requirement And Software System Attributes: HIPAA compliant, accuracy, precision, repeatability, reproducibility, reliability, availability, security, maintainability, portability, system interface, user interface and communications interface.