Getting Fair Compensation for Soft Tissue Injuries

Soft tissue injuries -- whiplash, sprains, strains, muscle tears and nerve damage -- are hard to document medically, so getting fair value in a settlement or lawsuit can be challenging.

Soft tissue injuries can be a factor in a variety of lawsuits, the most well-known example being whiplash from a car accident. Because direct proof of soft tissue injuries can be difficult, and because it easy to suggest that a plaintiff is exaggerating the extent of a soft tissue injury, it is important to thoroughly document the injury for an insurance claim and potential lawsuit. This article discusses some of the factors that go into obtaining personal injury compensation for soft tissue injuries.

The Insurance Company's Viewpoint

Many, but not all, soft tissue injury claims come from car accidents. Depending on the state, either the plaintiff’s (the person injured) or the defendant’s (the person responsible) insurance company will pay for the soft tissue injuries. In fact, in "no-fault" states, the plaintiff’s insurance company pays for the soft tissue injuries and the plaintiff is not even allowed to sue the defendant (except for claims involving more serious injuries). Therefore, establishing a soft tissue injury through documented medical diagnosis is as important for insurance claims -- if not more important -- than it is for litigation (taking your lawsuit to the courtroom).

Most companies have established amounts they are willing to pay to settle a case based on the type of injury. If a plaintiff demands more, the insurance company may refuse to settle. In many states, if the plaintiff wins a personal injury lawsuit after a court trial, but wins less than what the insurance company offered in settlement, the insurance company may able to charge the plaintiff for its litigation costs. In other words, don’t get greedy.

Proving Soft Tissue Injuries Can Be a Problem

Soft tissue injuries typically do not show up with diagnostic tools the same way other traumatic injuries do, for example like a broken bone on an x-ray. This does not mean soft tissue injuries like whiplash, muscle tears, sprains/strains, nerve damage and deep muscle bruises are not painful and detrimental to a plaintiff’s lifestyle.

However, everyone has seen examples on TV of an imaginary plaintiff coming into court with a neck brace and using a cane, winning the case, and then taking off the brace and throwing away the cane as soon as he or she has left the courtroom. While the public perception of this kind of fraudulent behavior is likely exaggerated, a jury or an insurance company is not going to take a plaintiff’s claims of soft tissue injuries on good faith.

Without hard-to-refute proof like an x-ray of a broken bone, insurance companies and defense attorneys can make a variety of arguments why the plaintiff is not as injured as she claims to be. This is why it is critical that an injured plaintiff seek medical treatment for a soft tissue injury immediately. Not only will the doctor help aid recovery, but the doctor’s medical records will serve as stronger proof of an injury than the plaintiff simply demanding that his or her claims of injury should be believed.

How to Get Compensation

As discussed above, the plaintiff's best hope of winning a lawsuit or having an insurance claim approved is thorough documentation of the injury and its symptoms, by a medical professional. What will also help convince an insurance company that a plaintiff has a decent chance of winning at trial (and therefore make the insurance company more willing to settle) is proof that the accident happened in a particular way, as well as testimony or other evidence that the plaintiff’s soft tissue injury is typical for that kind of accident. If the plaintiff lives in a "no fault" state, winning a trial is not important, but proving the existence and extent of the soft tissue injuries when submitting a claim still is.

In a case with potentially high damages, the plaintiff may need to hire an expert witness to testify at a deposition about how the accident probably caused the injuries. In a smaller case, simply providing relatively convincing proof of the type of accident may be sufficient. In that instance, an insurance company is likely to already know that the plaintiff's claims of soft tissue injuries are typical for the type of accident. If the plaintiff also provides medical records, proof of a typical accident will probably lead the insurance company to offer a settlement or pay the claim.

If the injury occurred in a manner that does not involve a defendant’s insurer (in a civil battery case for example), the same kind of documentation and proof should convince a defense attorney to offer a similar settlement. However, because the defendant will be paying out of pocket, and there may be fewer prior similar cases on which to base a settlement, settling may be less cut and dry than when an insurance company is involved.

Finally, if the case does not settle, or an insurance company refuses to pay out the claim, the plaintiff will need to sue the defendant or the insurance company to be compensated. If it reaches that point, the case will likely win or lose depending on the strength of the plaintiff's medical proof of injuries.

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