"Phonies, Fakers, & Fraud: How Filing Fictitious Claims Makes It Harder for The Rest of Us"
This month we will address an issue that is, unfortunately, becoming increasingly more prevalent in the world of personal injury law – attempts at filing fraudulent, exaggerated, or even self-induced personal injury claims.
We live in an increasingly litigious world. The U.S. Department of Justice, Bureau of Justice Statistics reported in 2005, that approximately 16,397 personal injury cases were tried nationally.(*1) The bureau also reports that since only about 4% of personal injury cases actually make it to the trial, with a vast majority settling out of court, the actual number of personal injury claims filed in 2005 was almost 410,000. This number is expected to have increased significantly since 2005.
The Insurance Research Council, an independent nonprofit research organization supported by leading property and casualty insurance companies and associations, reported in February, 2015, that an estimated 21% of bodily injury claims and an estimated 18% of personal injury protection (PIP) claims closed with payment had “the appearance of fraud” or “build up” – exaggeration/inflation of otherwise legitimate claims.(*2)
Despite its reported prevalence, however, filing a fraudulent personal injury claim could have serious ramifications. Not only can the insurance company deny your claim and drop your coverage, but you could also be liable to the insurance company for any money paid to you, for costs expended in investigating the fraud, and even for punitive damages in some cases. You may even face criminal charges.
What is Fraud in a Personal Injury Claim?
Typically, personal injury insurance fraud can be defined as any act that is intended to cause an insurance company to compensate the claimant for an injury that is nonexistent, exaggerated, or unrelated to any accident covered by the policy. Common examples include faking or exaggerating injuries from an accident, attempting to include a pre-existing injury in a new insurance claim, or even planning or staging an accident or injury.
An example of the latter occurred recently in Woodbridge, New Jersey, when a 57-year-old man was caught on surveillance camera footage in his workplace’s cafeteria, throwing ice cubes on the ground and appearing to – rather unconvincingly – fake a slip & fall event.
The man was arrested on January 15, 2019, and charged with third-degree insurance fraud, and third-degree theft by deception for the money paid out in the claim.(*3)
But your act need not be so blatant to be considered insurance fraud. It is important to note that you can be found guilty of fraudulently filing a personal injury claim even if you do not lie or make false representations. In fact, you may be found guilty of filing a false insurance claim even if you simply fail to disclose information which you have a legal duty to disclose, or which would be reasonable for you to disclose under the circumstances.
Fraud Goes Beyond Personal Injury Matters
Fraud can extend outside the civil context as well. Filing a fraudulent police report is a crime that can have serious consequences. A recent example of this which has been making news headlines around the country is the alleged attack on “Empire” star, Jussie Smollett.
Smollett, an openly gay African-American, alleged that two masked men, whom he had initially identified as being Caucasian, attacked him at 2:00AM on the morning of January 29, 2019, as he was walking home from a Subway restaurant in Chicago. He claimed initially that the men, who he alleged were wearing ski masks, shouted racial and anti-gay slurs at him, as well as poured a liquid believed to have been bleach on him, and put a noose-like rope around his neck while shouting, “This is MAGA country!”
In the weeks since his initial claim, and following a thorough investigation by Chicago police, Smollett became suspected of having orchestrated the attack – an elaborate attempt at garnering public support in order to leverage of pay increase from the television studio.
Police indicate that the course of the investigation shifted after they questioned the two brothers alleged to have attacked Smollett, Olabinjo & Abimbola Osundairo, who revealed that Smollett allegedly paid the pair $3,500 via personal check to stage the attack.
As evidence of Smollett’s apparent deception continued to come to light, Smollett turned himself in to the Chicago police, and was charged with felony disorderly conduct for allegedly filing a false police report. He was then released on $100,000 bail. The 36-year-old was subsequently dropped from the cast of Empire and the show’s producers have stated that he will not appear in the remaining episodes of the season.(*4)
The Resounding Impact of Fakers
False claims in both the civil and criminal context make things harder for the people who come after – the people who are legitimately injured, or who have truly been victimized.
Not all personal injury claims are fraudulent. In fact, the overwhelming majority of personal injury claims are made by those with genuine bodily injuries, some of which are truly life-changing.
As an unfortunate consequence of fraudulent insurance claims, it is now common for insurance claims adjusters to throw out accusations of faking or falsifying information to try to reduce the settlement figure or deny the claim altogether. If this happens to you, it is imperative that you have competent personal injury counsel who can fight back against these accusations with the proper medical evidence.
Protecting Your Genuine Personal Injury Claim
If the insurance company is trying to accuse you of faking or exaggerating your claim, in addition to the measures taken by your personal injury attorney, there are things you can do to help defend yourself and prove that your injury is legitimate.
Gather evidence. The more evidence you have, the better for your case. Naturally, when you are seriously injured it is not easy to collect evidence. However, there are ways to collect it; such as getting a copy of the police report, taking photographs, keeping copies of all medical bills, statements, test results, and scans, and collecting receipts for any out-of-pocket costs. Additionally, complete copies of your medical records from treating doctors are paramount in proving the veracity of your injuries.
Be honest and transparent. Never omit a detail with the insurance company or with a treating doctor. When you are giving a statement, be honest, succinct, and avoid any embellishments. The more exaggeration you provide, the easier it is for the insurance company to claim you are filing a fraudulent claim. Additionally, if you fail to provide a complete and thorough medical history with a treating doctor, it means that their subsequent opinions will be based off of an incomplete medical record/history. This makes their opinion essentially worthless and can significantly damage your claim.
Keep an injury journal. It is difficult to recall exactly how you felt immediately after an accident, especially if your deposition takes place months or years after the fact. To prevent an accusation that you have omitted information or misrepresented the facts, keep an injury journal. Document your physical pain, emotional trauma, and whatever thoughts you have going through your head, including fears, anxiety, or depression. Specifically, when recording details about your pain, we recommend remembering the acronym “DIF” – Duration (how long the pain lasts when it begins), Intensity (how severe the pain is), and Frequency (how often the pain occurs).
Avoid social media. Social media is a place you go to share information and even vent amongst family and friends. Sadly, it is now one of the first places insurance claims adjusters and defense attorneys look if they want to dispute statements in a personal injury claim. Avoid discussing the details of your lawsuit on Facebook and other social media websites. Furthermore, make sure your profile is set to private and tell family and friends to not tag you in posts or pictures while your case is ongoing. The less information claims adjusters and investigators have access to, the better for your case.
Drinkwater & Goldstein, LLP Can Help Preserve Your Claim
The experienced attorneys of Drinkwater & Goldstein, LLP have been going toe-to-toe with insurance companies for decades. Our compassionate personal injury attorneys know how devastating it can be to be the victim of an automobile accident or a slip & fall. We know how frustrating it is to have your life changed through no fault of your own. And we know what techniques the insurance companies use to try to minimize or deny the financial recovery you deserve.
If you or a loved one has been the victim of a personal injury due to someone else’s negligence, call Drinkwater & Goldstein, LLP today for a free over-the-phone consult. There is no cost to you unless we secure financial recovery on your behalf! Call (856) 753-5131 today!