Why Gaps in Treatment Hurt Your Case (and How to Avoid Them)

Published November 24, 2020 · Injury Law Basics

Here is a sentence I have read in more insurance company letters than I can count: "We note a significant gap in the claimant's treatment." It usually appears right before a low offer. The adjuster is not saying you were not hurt. The adjuster is saying the paperwork gives the company room to argue that you were not hurt badly, or not hurt by this crash.

This year has made the problem worse. Offices closed in the spring, therapy clinics cut back, and many people stayed away from doctors out of fear of the virus. If you were injured in 2020, there is a good chance your records have a gap in them. Here is why that matters and what you can do about it.

What counts as a "gap"

Adjusters and defense lawyers look for four kinds of gaps:

• A delayed first visit. You felt sore after the crash but waited a week or two to see anyone.
• Long stretches between appointments. You saw your doctor in March and not again until June.
• Stopping therapy early. You were prescribed twelve weeks of physical therapy and attended five.
• Referrals never followed. Your family doctor sent you to an orthopedist or a neurologist, and the appointment never happened.

Insurance claim software is built to flag each one. In our guide chapter on social media and other mistakes that hurt your case, I explain that insurers literally discount claims for gaps.

How a gap becomes an argument

Every gap turns into one of two arguments.

"You were fine." If you were really hurt, the reasoning goes, you would have kept going to the doctor. Since you stopped, you must have recovered.

"Something else caused it." If weeks pass between visits, the defense will suggest that something happened in between: a fall at home, a weekend of yard work, a new injury at the gym. The longer the gap, the more room there is to point at something other than the crash.

Neither argument is fair to most of the people I represent. Real injuries plateau. People are told to "wait and see." Life gets in the way. But these arguments work on adjusters deciding what to offer, and sometimes on juries.

The opposite of a gap: what prompt, consistent care looks like

A case from our own Montgomery County courts shows what a clean medical record can do. In Harrod v. USAA Ins. Co., 2019-Ohio-2748, decided by the Second District Court of Appeals last year, a soldier's car was struck while he sat in traffic in Dayton. The defense pointed to a congenital spine defect and degenerative disc findings on his MRI. But he had no history of back pain, his wife took him to the emergency room within an hour or two of the crash, the ER documented muscle spasms, and a spine specialist tied his pain to the collision.

The trial court took the question of causation away from the jury and ruled for him on it, and the appeals court affirmed, holding that "reasonable minds can only conclude" the collision caused some injury to his back. I wrote about that case in our post on the pre-existing-condition defense. The lesson for this post is simple: prompt care, documented the same day, made the insurer's best argument fail.

Legitimate reasons gaps happen

Gaps happen for real reasons, and a real reason, documented, is far better than silence:

• Cost. You did not have health insurance, or the co-pays added up.
• Childcare and work. You could not take time off or find someone to watch the kids.
• Transportation. You could not drive and had no ride.
• The pandemic. Your provider closed, postponed appointments, or you are in a high-risk group and were told to stay home.
• Medical advice. Your doctor told you to rest and come back if it did not improve.

What matters is that the reason is written down somewhere other than your memory. Tell your provider why you missed time, and ask that it be noted in your chart. Tell your lawyer. Keep the cancellation notice from the clinic. A record that says "patient unable to attend due to clinic closure for COVID-19" defeats the "you were fine" argument before it starts.

Habits that protect your record

Our guide chapter on focusing on treatment first covers this in more depth, but these are the habits that matter most:

1. Get seen right away. The same day if you can, and within a day or two at the latest. As I have said since 2010, "I feel fine" at the scene means very little.
2. Keep every appointment, or reschedule immediately. A missed visit shows up as a "no-show." A rescheduled visit shows up as a patient who cared about getting better.
3. Report every symptom, every time. If you mention your back but not your headaches, the chart says back pain. Six weeks later, the headaches will be called new and unrelated.
4. Follow referrals. If your doctor refers you to a specialist, go. If you cannot, tell the doctor why.
5. Finish physical therapy. Therapy notes measure your progress visit by visit. A completed course is persuasive; an abandoned one is a gift to the defense.
6. Use telehealth when you cannot get in person. Video and phone visits create records too. I discussed how to make the most of them in our May post on telehealth.

If you already have a gap

Do not panic, and do not try to cover it up. The worst thing you can do is give an explanation later that does not match your records. Instead:

• Get back in to see your provider now, and tell the provider honestly what has been going on with your symptoms since your last visit.
• Write down, while you still remember, the reason for the gap and any documents that support it.
• Talk to a lawyer before you talk to the adjuster about it.

Many good cases have gaps. What separates the ones that settle well is a documented, truthful explanation and treatment that resumes before the gap becomes the story.

What this means for you

• Adjusters use delayed care, missed appointments, and unfinished therapy to argue you were not hurt, or were hurt by something else.
• Prompt, documented care is powerful evidence; a Dayton appeals court recently relied on exactly that kind of record.
• Gaps caused by cost, work, childcare, or the pandemic are understandable, but they need to be documented.
• If you have already missed time, resume care now and tell your doctor and lawyer the real reason.