A practical approach to medical, medical or legal expertise, its faults, the way in which it is entitled to be approached and prepared by the victim and his lawyer at NICE, a practitioner of compensation for bodily injury.
Lawyer NICE, accident compensation: THROUGH MEDICAL EXPERTISE, WHICH PENALIZES COMPENSATION FOR VICTIMS OF BODILY ACCIDENT:
A – Medical expertise – A context which does not contribute to the best analysis of the situation and the needs of the victim:
Medical expertise in the assessment of bodily injury is in itself a small thing among itself, with its rules, but above all antagonistic feelings and reasoning.
The victim often feels watched and judged there; she feels a climate of suspicion towards him.
Certain points of discussion are of major importance for the future, because they will help meet her needs to restore her autonomy, her social life, the dignity that she is entitled to claim in order to continue her life, and up to this level. that is necessary, without limitation.
Ideally, to determine them and assess them at their proper measure, it would therefore be necessary to spend many hours with the victim, in his privacy, his environment, on good days, but also on less good days.
This is what endeavors to do, with method, thoroughness and listening, Me DENIS-PERALDI, lawyer for compensation for bodily injury. If necessary, for victims who are seriously injured in their autonomy, your lawyer at NICE, responsible for compensating your bodily injury, will deploy additional resources, such as for example an ecological study (carried out in the environment and the context of life) , performed by an occupational therapist are disability specialists.
However, this human, personal, and crucial analysis for the victim should involve all the actors of the expertise, so that everyone can intervene in the discussion, put forward their arguments so that the closest consensus emerges from the discussion. reality.
But medical expertise in the area of bodily injury compensation does not work that way. Medical experts do not consider themselves able to carry out such work, for lack of time, and also because of the financial conditions of their remuneration, especially when it is the insurers who mandate them.
The victim’s lawyer, his medical adviser, are certainly able to deliver their analysis. But it remains welcomed as a demand, with the reservations and reluctance that this implies.
It is moreover for this reason that an expertise is prepared, documented. your lawyer must also not yield to the requirement of complete integrity in the analysis. It is at this price, that in his capacity as a practitioner of compensation for bodily injury, over the expertise in which he participates with the same consistency and the same seriousness, he must earn for the interest of his clients a reputation. seriousness, honesty in the process.
B – The typical day: An aberration!
In order to determine the needs of the victim, in his human and material environment, it is customary to retrace fictitiously, during the medical examination, a “typical” day.
The intention is not open to criticism when it comes to applying the fundamental principles of compensation for the bodily victim of an accident, by carrying out a personalized assessment of the damage suffered.
But the practice of asking the victim to describe a “typical day” to assess his situation and his technical and human assistance needs is not very relevant.
From the point of view of your lawyer at NICE, a practitioner of compensation for bodily injury, this assessment based on a “typical day” actually leads to standardizing once again the compensation of the Third Party and of the accommodation. .
A person in perfect health, totally valid and autonomous, would be hard pressed to describe a typical day in his life, while life in society tends precisely to allow each individual to escape a monotonous life, punctuated by the sole constraints .
In any event, the intervention of the lawyer of the victim of a personal injury is always necessary at this stage of the discussion.
The victim’s lawyer, if he is not a doctor, must remind the expert that his assessment of the harm and the victim’s needs must take into account imperative legal principles.
They derive in particular from the rights of the person with a disability, which have been reaffirmed by the law of February 11, 2005, which also includes international texts and in particular La United Nations Convention on the Rights of Persons with Disabilities.
These texts require that all necessary means be implemented to restore the victim of a bodily accident, placed in a situation of disability, in conditions of existence as close as a valid person.
It is therefore not only a question of compensating for her handicap so that she is able to perform the elementary acts of everyday life. It is also necessary to restore its previous living conditions so that it can reconnect with a quality social life, leisure activities, a professional activity, a real possibility of displacement….
However, during the appraisal, in particular because of a very standardized assessment of the medical scales used (see the news on the subject of medico-legal scales), the reasoning which must flow from this principle is too often neglected.
On the other hand, submitting the needs assessment from a typical day consists of extrapolating the daily life of a victim from a single clinical examination, carried out on the day of the expertise.
This method is not suitable.
Indeed, the clinical examination allows only a description of the capacities of the victim of a bodily accident, on the day of the expertise, and only during a clinical examination of a few minutes.
This analysis therefore does not take into account:
The victim’s real abilities to accomplish the same “performance” over a full day, for weeks. There are easier days, but also more painful days. The effort that the victim can make during the examination, to walk, to perform painful movements, cannot be reproduced on a daily basis in a more complex life context.
Of the distance that we must have vis-à-vis the reports of medical editors, occupational therapists. The latter first of all defend their work and are therefore not inclined to minimize the result of their care. It should also be taken into account that the progress of the victim in a rehabilitation center, where the whole material and human environment tends to improve his capacities, are probably not renewable in everyday life.
Your lawyer, and your medical adviser must therefore endeavor to highlight all the difficulties that you are likely to encounter on a daily basis, and which are likely to distort the analysis based on a single clinical examination.
C – The use of general terms and purely consensual vocation such as “The pain”, the simple “embarrassment”:
Expertise confronts points of view, and therefore tends to arbitrate antagonistic positions.
Admittedly, the expert decides on his assessment, but he is also subject to the crossfire of claims from the victim and disputes from the regulator insurer.
On certain items of damage, such as the professional impact, the third party, the loss of pleasure, the stakes are such that the confrontation does not allow a consensus to be found.
The most frequent example remains the question of the possibility or not for the victim to resume his professional activity.
Many experts, especially during amicable expert appraisals, rather than deciding, in all objectivity, by holding for example that the victim is unable to resume his work and must operate a retraining, will cut short the discussion by sparing the antagonisms by a vocabulary subterfuge. They will thus remember that the victim will undergo increased difficulty in such or such activity.
In itself, such a response is not open to criticism if it is accompanied by a real explanation, and a precise description of the discomfort or the pain.
Your lawyer at NICE, a practitioner of bodily injury compensation, can also use this notion of hardship, with real benefit, if this notion is clearly described.
On the other hand, if it is a question of closing the discussion with such a notion, without specifying its outlines and the functional implications for the victim, it will be very difficult to obtain amicable or judicial arbitration of quality.
This therefore once again reinforces the necessary preparation of the expertise, and the presence of the victim’s lawyer at the medical assessment.