"Whiplash" is a catch-all term used to describe a variety of neck injuries—usually soft tissue damage to the neck—that result from accidents like a car wreck or a fall. Whiplash has an undeservedly bad reputation, conjuring up images of ambulance-chasing lawyers representing clients who fake injuries to cash in on make-believe accidents. But if you've suffered a whiplash injury, you know this: It's real, it's painful, and there's nothing funny about it.
If your whiplash was caused by someone else's negligence, getting fair compensation means doing these things:
We'll walk you through these steps in more detail below. But first, let's find out a bit more about whiplash injuries.
When your body suffers a forceful impact, it's common for the head and neck to be thrown forward and back (or side to side) in a whip-like motion. Neck injuries resulting from this extreme snapping or jerking are commonly called whiplash. Medical professionals often use the term to describe neck sprain or strain, though whiplash injuries can also involve damage to intervertebral discs or nerve roots.
Whiplash is usually associated with rear-end car collisions. But whiplash injuries can be caused by any number of things, like other kinds of car accidents, contact sports such as football or hockey, or slip and fall accidents. Any forceful trauma that suddenly and violently snaps the head and neck about has the potential to cause whiplash.
Most people are familiar with the most common whiplash symptoms, including neck pain and stiffness, headache, dizziness, and shoulder or arm pain. Whiplash can also cause less well-known problems such as burning or tingling sensations in the arms, sleep difficulties, trouble concentrating, and mental or emotional issues. Sometimes, symptoms appear immediately or very soon after an accident. In other cases, though, it might take some time before injury symptoms develop.
If you're hurt in any kind of accident, your first priority must be getting medical treatment. Once you're able, you should begin gathering the evidence you'll need to bring a claim. After your doctor tells you that you've recovered as much as you're likely to (sometimes called "maximum medical improvement"), you should send a demand letter to the negligent party's insurance company to get settlement negotiations going.
First things first. A neck injury can lead to serious and permanent health problems, so get medical treatment at the first sign of symptoms. Be sure to report to your doctor any new symptoms or any worsening of existing symptoms. Don't be embarrassed to report ongoing pain and discomfort, either—your pain level can be an important indication that treatment is (or isn't) working.
Do your best to follow all of your doctor's treatment instructions. Following medical advice shows that you suffered a significant injury and that you did everything you could to make a full recovery. If you don't comply with your doctor's treatment plan, it might adversely affect your insurance claim. The insurance company will argue that you weren't really hurt, or that you were exaggerating the nature or severity of your injury.
As soon as you're able, you should begin gathering the evidence you'll need to support your claim. Here are some of the things you might need to collect.
For any personal injury claim, you'll need:
If you were in a car accident, you'll also want to get:
If you were hurt in a slip and fall, you'll also want:
In addition, keep detailed notes about the accident, the medical treatment you received, and your recovery. Be specific about the pain and discomfort you experience and how it limits your ability to work and engage in other daily activities like household chores, self care, or family and recreational activities. Don't forget to record your feelings and emotions throughout the recovery process, too. Emotional distress is a real thing, and you're entitled to compensation for it.
The notes you keep will come in handy with our third and final step, preparing a demand letter.
The settlement process usually begins when you send a demand letter to the negligent party's insurance company. As a rule, you want to wait until your doctor tells you that you've reached maximum medical improvement before you send a settlement demand. The last thing you want to do is settle your claim only to find out later that you've got new or recurring injuries.
That said, be sure you know about your state's time limit—set by a law called the statute of limitations—on filing a lawsuit in your case. If the statute of limitations is a problem, you might need to send your demand letter before you reach maximum medical improvement. Once the statute of limitations deadline passes, your claim is legally dead. Understanding the statute of limitations and how it applies to your case can be difficult, so if you're unsure, contact an experienced personal injury attorney for help.
As you write your demand letter, keep in mind your likely audience. Your letter is going to an insurance adjuster. This is a person who investigates and settles hundreds of claims like yours every year. Keep your letter factual and to the point. Don't make up facts or injuries, and don't exaggerate your claims. Remember, you must be able to prove most of what you say. A serious, professional demand letter will help to establish your credibility. An overheated, emotional rant will make you look like an amateur.
Your demand letter needs to cover:
This is the "who, what, when, and where" part of your letter. Identify who was involved in the accident and, if it was a car wreck, the vehicles they were driving. If you fell on someone's property, give the property address and the name of the owner, say whether it's a residential or business property, and explain why you were there.
Describe when and where the accident happened. If the weather was a factor, lighting was a problem, or road conditions were dangerous, say why. Explain in your own words how the accident happened, in as much detail as you can recall. If a witness made favorable statements and you can get those statements in writing, include the statements in your description of the facts and attach the written statement as an exhibit.
Describe your injuries and the treatment you've received completely and thoroughly. Try to avoid using the term "whiplash" to describe your injury. It's not specific and it's likely to cause the adjuster to prejudge your claim. When possible, use the terms you find in your medical records. If you need help understanding medical terminology, online resources like WebMD can help.
Don't be embarrassed to describe the pain you experienced or the mental and emotional distress you felt as a result of your injury. These are legitimate harms that need to be fairly compensated, but they won't be if you don't mention them in your demand letter.
Keep in mind, too, that neck injuries like these usually don't show up on an X-ray or a photograph, so adjusters are likely to be skeptical. Detailed descriptions backed up by your medical records and other proof (like witness statements) will help to convince the adjuster that your physical and emotional injuries are real.
Your injuries are the physical and emotional harms caused by the accident. "Damages" is just a legal term used to describe the compensation you're entitled to receive. In most cases, we're interested in two categories of damages.
First, you're entitled to be paid for your "economic" (sometimes also called "special") damages. These are things that are easy to put into dollars, like your medical bills, lost wages, and other out-of-pocket expenses. Make a list, by provider, of all your medical expenses. Be sure that your list agrees with the medical bills you attach to your letter. Separately list any other economic losses like lost wages or damage to your car.
Second, you're also allowed compensation for your "noneconomic" (sometimes also called "general") damages. Noneconomic damages are those that are harder to value, including such things as pain and suffering, emotional distress, and loss of enjoyment of life. Putting a value on whiplash injuries can be especially tricky.
Most attorneys and insurance adjusters value noneconomic damages by using a multiplier of one to five times medical expenses. In a whiplash case, for instance, you might begin settlement negotiations by using a multiplier of three times your medical expenses. So, if your medical expenses are $7,000, you'd multiply that figure by three to arrive at a value for your noneconomic damages of $21,000.
Expect the insurance adjuster to value your noneconomic damages lower—and probably much lower—than you do. This is common in settlement negotiations, particularly in whiplash cases. You should start negotiating with a settlement figure that's more than what you're willing to accept, and you'll do that by using a slightly higher multiplier. The insurance adjuster will do the same on the low side. In most cases, you'll settle somewhere in the middle.
Once you've calculated your economic and noneconomic damages, simply add them together. The sum is your total damages.
It's up to you to show why the other party is legally responsible for your injuries and damages. In a whiplash case, this probably means proving that the other side was negligent. If you were rear-ended, or if the other driver ran a red light or a stop sign, it isn't hard to prove negligence. But if, for example, the collision was a side impact and there's a dispute over who failed to yield the right of way, proving who was at fault can be more complicated. Proving responsibility also can be difficult in a slip and fall case.
The insurance adjuster might argue that you're partially at fault (called "comparative" or "contributory" fault) for the accident. If you do share fault, that will, at the very least, reduce the value of your claim. Here's a simple example.
Say your total damages are $10,000 and the other party was 100% to blame. The value of your claim is $10,000. But if you were 25% at fault for the accident, your claim is only worth $7,500—$10,000 minus $2,500.
Depending on the state where you live, your comparative or contributory fault might destroy your claim entirely. If this is a problem in your case, you should contact an experienced personal injury attorney for advice.
At this point, all the hard work is done. Simply make a settlement demand for the total amount of your economic and noneconomic damages. Barring any concern over the statute of limitations, give the adjuster a reasonable amount of time, like 30 days, to respond.
In most cases, you'll get a written response from the insurance adjuster. If the adjuster denies your claim outright—refuses to make any settlement offer at all—your best bet is to contact an experienced attorney for help. If the adjuster makes an offer that you think is too low, because it probably will be, then you should respond with a counteroffer.
We've got much more information to help you write your own demand letter, along with sample letters you can use to get started. Need help putting a value on your whiplash claim? Have a look at our valuation calculator. Here's some information about neck injury settlements and verdicts.
Finally, we've also got resources to help you find the right lawyer. You can use the features on this page to connect with a lawyer near you.