According to the National Safety Council, falls are one of the leading causes of unintentional injuries in the United States, accounting for approximately 8.9 million visits to the ER and costing businesses $70 million annually. (2011 NSC Injury Facts). Admittedly the vast majority of falls in stores, restaurants and hotels are true accidents, but unfortunately, an increasing number are complete scams.

The National Insurance Crime Bureau saw a 57% increase in claim referrals over a recent two year period and most were connected to commercial policies. Not surprisingly, the cities with the most questionable claims were New York, Los Angeles, Philadelphia, Las Vegas and Chicago.

Scams are inevitable so we need to focus on how to identify them and the best way to defend against them. In my 18 years of practice I have seen a fair share of fraudulent claims, which has caused me to get creative in the way I respond to them. Here are a few things I have learned to help identify a fraudulent claim:

• Listen to Personnel. Attorneys and claims examiners are not the only ones with a sick sense about fraud. Many managers get those same feelings, so if they tell you something about the incident or the claimant did not seem right, investigate that claim with an eye for fraud.
• Surveillance Footage. Even if the fall is not caught by a camera, watch as much footage as you can from that day and watch the plaintiff. Check to see if he was with anyone in the store before the fall and check if he was in the store earlier in the day. Look for any sign of the plaintiff knowing or working with someone else. Even watch for cell phone usage between two people.   Chances are that if the plaintiff was working with someone, you will find evidence of it in the footage. Preserve as much of the footage as you can.
• Index Search. Index searches are pretty standard nowadays but if you don’t typically do them in each case, be sure to do them in any case where you suspect fraud. If the claimant has multiple claims in her history, the red flag needs to go up.
• Trust Your Gut. If you are an experienced attorney or claims examiner, you know when a fall caught on video does not look right. Trust that feeling and have an expert in body mechanics watch the video. In a few short minutes the expert can tell you if your gut was correct.
• Hotline Information. In one case, the only way we discovered the claim was a fraud was a friend of the plaintiff’s called the company customer hotline and reported it. Based on her report, we did a more detailed investigation of the plaintiff and we were able to prove the incident was a fraud, causing the plaintiff to dismiss her case.

Once you believe a claim is fraudulent you must defend against it. I highly recommend you make every effort to fight fraudulent claims. The more fraudsters are able to settle claims, the more fraudulent claims they will file. Think of defending these claims as your civic duty. Here are some of the ways I have been able to defend against such claims:

• Investigation of the Plaintiff. Chances are this is the not the first time the plaintiff filed a fraudulent claim so have a detailed investigation of the plaintiff performed by a trained professional. It should include a search into aliases, criminal records, other civil litigation, workers’ compensation claims and be sure to look at all social media accounts. If there are prior lawsuits, have defense counsel speak with the defense counsel in those cases to see if fraud was suspected.
• Detailed Medical Review. In my experience, many fraudulent claims are a result of someone having a medical condition and wanting someone else to pay for it while making a profit. If that is the case, don’t expect the plaintiff to produce all of her medical records and disclose all of her treaters. The best way to get around this is to subpoena the plaintiff’s health insurer and pharmacies. Those records will include the identity of the plaintiff’s undisclosed treaters.
• Expert Support. If you have surveillance footage showing the fall, be sure to have a body mechanics expert retained very early and have a good understanding of the how the expert can prove the fall was fraudulent. This will be your strongest evidence. If you don’t know of a good expert to use, call me because I know several.
• Requests to Admit. The use of requests to admit can be very helpful with a fraudulent plaintiff, especially with documents you want verified. The plaintiff will likely be argumentative at his deposition and requests to admit do away with those theatrics and require a straight forward answer.
• Affirmative Defense. One way to make it clear to the plaintiff that you suspect fraud and you are ready to defend the claim is to file an affirmative defense for fraudulent misrepresentation.  This also helps you present more evidence on the issue at trial.
• Counter-Claim. An even better way to show the plaintiff you mean business is to file a counter-claim against the plaintiff for fraudulent misrepresentation. Not all judges are keen on this approach but if you can get the pleading on file, do it. In one of my cases, the plaintiff dismissed her case as soon as the counter-claim was filed.

Typically, the quicker you can prove a claim is fraudulent, the quicker the case will go away, even if it’s already in litigation. The vast majority of plaintiff’s attorneys do not want their name on a fraudulent lawsuit. So do your investigation and present your case to the plaintiff’s attorney. You may be surprised how quickly the case is dismissed.