The Whiner–Tough-Guy-Personal-Injury-Victim Spectrum


I have been representing personal injury victims for decades.  No two victims are alike.  They’re kind of like snowflakes: They are each unique.  This goes for how they deal with their injuries, too.  But generally you can think of how they handle their injuries as running along a spectrum, a continuum, which is the subject of my blog post today.

At one end of the spectrum is what I call the “tough guy”.  The use of the word “guy” here is deliberate, and not sexist.  This kind of personal injury victim is almost always a guy, not a woman, though I have seen exceptions to this rule.  The tough guy has to prove that he is too tough to let an injury bother him at all.  The extreme tough guy will not admit, even to his doctor, that he is in pain. He will refuse pain meds.  He will ask his doctor to send him back to work even when the doctor thinks this will be deleterious to the healing process.  The tough guy believes he is superman.

The problem with representing the tough guy is that when it comes time to settle his case, his medical records and his comportment have minimized the injury and so the case value is also minimized.  When he realizes that he has shot his case in the foot, the tough guy may finally admit to his lawyer, me, that he was in a lot of pain the whole while, and still is, but wanted to work and live through it without complaining.  He does not like to complain. But try explaining this to an insurance adjuster or a jury who is looking at reams of medical records wherein the victim had reported “no pain” or “minimal pain” or “nothing I can’t deal with”.  The tough guy is his own worst enemy in a personal injury case.  He sinks his own case with his bravado and chest pounding.

At the other extreme is the “whiner“.  The whiner wants the whole world to know how awful his bruised fingernail is. (I am exaggerating of course, but you get the point).  The whiner will call his lawyer and his doctor at every new ache or pain to report how dreadful things are.  Maybe they do this because they think it will increase the value of their personal injury case, or maybe they just like letting everyone know how much pain they are in.  The psychology of the whiner is often hard to read.  But whatever the reason, the whiner’s doctor will often interpret the whining as “malingering”, that is, a deliberate exaggeration the pain or disability.  And the doctor will not stay silent about this.  I always dread seeing a notation in a client’s medical records that “patient seems to be malingering or exaggerating his condition.  I note that he is pursuing litigation”.  And I have seen plenty of notes like that.

The whiner and the tough guy have one thing in common:  They are adept at torpedoing their own personal injury case.  Both have lost credibility with the insurance adjuster or the jury.

As for the tough guy, the adjuster and/or jury won’t believe that the he was really suffering or in pain because he told the doctor he was not. They will believe he is only changing his tune now  to open a spigot of easy money from the personal injury case settlement or verdict.

As for the whiner, the adjuster and/or jury won’t believe him because his own doctor doesn’t believe him.  The whiner not only won’t be believed, he won’t be liked.  No one likes a whiner. The whining is irritating.

How do you, as a personal injury victim, avoid the consequences of these two pitfalls, these two extremes?  Easy:  Be honest with yourself, your doctor and your lawyer, especially about your symptoms, what activities worsen them, how bad the symptoms are, and what makes them feel better.  Your reward will be better health, better healing, and finally a bigger and better personal injury case settlement or verdict.

Keep safe!

Mike Bersani

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Syracuse NY Personal Injury Lawyers
Michaels Bersani Kalabanka

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