Insurance adjusters and their lawyers are fond of denigrating the injuries suffered by victims of auto accidents as “only soft tissue” injuries. In other words, insurance companies offer less in terms of settlement for a victim who did not break bones in a crash! While some attorneys may have trouble convincing insurance adjusters that soft tissue injuries are not as painful as other types of injuries, we like to remind our juries and adjusters that soft tissue injuries include injuries EVERYWHERE else in the body, i.e. the heart … lungs … vertebral discs … and guess where else, nerves. Ouch! All of these parts of the body consist of soft tissue. Yet still, insurance companies constantly downplay our clients’ soft tissue injuries.
Often the reason they downplay these injuries is because our clients’ medical records are lacking what are called “objective findings”. “Objective findings” are findings by medical professionals that do not rely on what a patient tells them or on what the medical professional feels about a diagnosis. In other words, these findings are proof of injuries that cannot be “faked” by a patient. And adjusters are correct to believe juries rely more heavily on objective findings. However, Campen & Manganaro knows soft tissue injuries are very serious, and there are numerous issues we present to our juries, if appropriate, to help them understand these injuries.
First, we always look for muscle spasm in the medical records, which is an objective finding for soft tissue injuries. Muscle spasm cannot be faked. It must be felt by a medical professional during a physical exam. If we can point to muscle spasm in the medical records, or any other objective findings, it will help our client’s case.
We are also careful to make it very clear to juries and adjusters that imaging tests are not always accurate and are not the “end all, be all” of a medical diagnosis. Defense attorneys rely so heavily on X-rays, CT scans, and MRI’s as evidence, especially if our client’s injury does not show on the scan. We help the jury understand, simply because an injury doesn’t show up with current imaging technology does not mean there is no injury; it simply means the technology has not developed sufficiently to detect it. Indeed, not long ago, MRIs were not available to detect herniated discs. Even most defense doctors will agree that MRIs are not infallible and that they have often found internal damage during surgery that was not seen on a MRI. We have a current client, in fact, who went to the ER after her accident, was x-rayed and told she did not have any broken bones. She lived with a broken wrist for three months before another doctor sent her for an MRI and discovered she DID in fact have a broken bone. In other words, while imaging is helpful, it is not always correct, and it is important that juries understand that.
Additionally, doctors from all specialties treat patients all of the time based on subjective complaints and will often admit that the clinical complaints of the patient are the most important diagnostic tool available to them. If jury members trust our client and find he/she credible, they will award damages appropriately. So, from the very beginning of a case we explain to our clients, credibility is KEY. Go to the doctor regularly and never lie or exaggerate, but also never try to downplay your pain simply because you’re afraid of looking weak. Unfortunately, we have had many a client who had sore neck after an accident and chose not to talk about it, only to find the pain worsened and he/she needed surgery in the future. Be honest and forthcoming. That is always our advice. Trust is very important to juries; and adjusters who see our client’s testimony will be consistent and credible at trial will offer more for settlement as well.
And focusing on trial is what we do with every case. We know many of our clients want to settle and put their traumatic experiences behind them, and we understand this and work with them on that. But insurance companies need to know we will take them to task and be ready to prove everything I’ve discussed at trial, which means calling the right witnesses, lay witnesses and doctors, and presenting the right medical records. And what has been told to these witnesses and what is in the records ties directly to our client’s honesty and reliability. We can prove to a jury that a soft tissue injury is a traumatic injury with the right evidence.
While it may be true that cases with only soft tissue injuries often do not get the big offers or verdicts that others do, having the right game plan from the beginning is very important. Please don’t let an insurance company talk you out of what you are owed or get you to settle early just because you didn’t break any bones. Wait to see how your body handles the accident, and feel free to call Campen & Manganaro at 301-668-5808 to help you understand how best to argue your case.