Soft tissue injuries like sprains and strains are a big part of many a personal injury case. These kinds of injuries—from so-called "whiplash" to more signficant kinds of soft tissue damage like muscle tears and nerve damage—can be difficult to prove. And because it's easy to suggest that a plaintiff is exaggerating, it's important to do everything possible to document and substantiate a soft tissue injury for an insurance claim or personal injury lawsuit.
Many soft tissue injury claims come after car accidents. If car insurance comes into play with a soft tissue injury, and the accident occurred in a "no-fault" car insurance state, the injured person might not be allowed to sue the at-fault driver, unless the injuries qualify as "serious" and/or medical bills exceed a certain amount under the state's requirements for stepping outside of no-fault and making a liability claim. In any case, establishing a soft tissue injury through documented medical diagnosis is usually as important for insurance claims as it is for lawsuits.
Most insurance companies are skeptical of soft tissue injury claims, and they usually have firm dollar figure ranges they are willing to pay in order to settle a claim that's based solely on soft tissue injury. If a claimant demands more, the insurance company might refuse to settle. In some states, if the plaintiff wins a personal injury lawsuit after a court trial, but wins less than what the insurance company proposed in a documented settlement offer, the insurance company may be able to get reimbursement from the plaintiff for its litigation costs. So be careful when turning down an insurance adjuster's settlement offer.
Soft tissue injuries typically do not show up with diagnostic tools the same way other traumatic injuries do (a broken bone on an x-ray, for example). This does not mean whiplash-type injuries, muscle tears, sprains/strains, nerve damage and deep muscle bruises are not painful and detrimental to a plaintiff’s lifestyle, however. But it does mean that, without hard-to-refute proof like an x-ray of a broken bone, insurance companies and defense attorneys can make a variety of arguments as to why you're not as injured as you claim to be. This is why, after any kind of accident, it's crucial to get prompt and thorough medical treatment for even the slightest indication of injury. Not only can a health care professional help aid your recovery, but a doctor’s medical records will serve as stronger proof of an injury than you simply asking that your claims of injury be believed. Learn more about establishing the nature and extent of your injuries.
As discussed above, your best strategy for getting a fair settlement for soft tissue injuries is thorough documentation of the injury of your symptoms, and a detailed course of treatment.
What will also help is proof that the accident happened in a particular way, as well as testimony or other evidence that your soft tissue injury is typical for the kind of accident you were involved in.
In a case with potentially high damages, you may need to hire an expert witness to testify at a deposition about how the accident probably caused your 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 claims of soft tissue injuries are typical for the type of accident, and if you also provide medical records, that may lead the insurance company to offer a fair settlement.
If no insurance policy applies to the underlying incident (in a civil assault and 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 straightforward than it would be when an insurance company is involved.
If the insurance company (or the at-fault party) isn't taking your soft tissue injury claim seriously enough, or if you're running into obstacles to a fair settlement, it could be time to get an experienced personal injury lawyer on your side.