Whiplash is a potentially devastating injury -- as you probably know all too well if you're struggling with it right now. This traumatic neck injury, commonly associated with auto accidents, causes symptoms such as pain, stiffness, neurological damage, headaches, vision problems and even cognitive impairment, racking up steep medical expenses and possibly preventing you from earning a living. But suing another party for whiplash damages isn't the open-and-shut case you might assume it to be. Here are four tips to help you prepare your case as intelligently as possible.
1. Get Documented Medical Evaluations (from the Right People)
The first thing you should always do following an auto accident is get a medical evaluation, including a spinal screening, to determine whether you've sustained injuries -- even if you feel fine. Many cases of whiplash don't display symptoms right away, so the sufferer doesn't bother with an exam until he experiences pain. This error not only allows the damage to worsen, but it can also poke a hole in your case later on when a defense attorney asks questions such as "Why didn't you get the help you needed right away?" and "If you didn't experience symptoms immediately, how do you know your current problems stem from the accident?"
X-rays and other documented medical statements from the day of the accident can be enormously helpful in strengthening your case -- but not all medical evaluators are created equal. If you don't have proof of treatment and medical statements from a qualified physician to back you up, your insurance company may order an independent medical exam, or IME, from one of "their" doctors -- and the results are more likely to support the least amount of injury possible to keep the insurance company's costs down. Get your own doctor's facts, findings and lab results on the official record first.
2. Choose Your Lawsuit Verbiage Carefully
Even if you have a mountain of medical evidence standing by to support your claim of a whiplash injury, that doesn't necessarily mean you want to call it a whiplash injury in your lawsuit. The term "whiplash" has developed a negative stigma associated with plaintiffs trying to cash in on an accident by claiming a hard-to-prove, easily-faked medical condition. Whiplash is also misunderstood by many as a mild, temporary discomfort that doesn't merit extensive damages. Using this kind of verbiage in your claim could predispose the judge or jury to view your claim with skepticism at best and outright hostility at worst.
So what do you call your injury? Precise medical terminology not only helps you avoid the iffy term "whiplash," but it also permits much more detailed and scientific descriptions of the precise musculoskeletal and neurological conditions and symptoms you have sustained. A smart personal injury lawyer will substitute more accurate and convincing terms such as "cervical sprain" or "hyperextension/hyperflexion injury" to describe the exact nature of your condition. Specific terms such as "myofascial injury" and "cervical radiculopathy" also provide more specific description of symptoms than "neck pain" or "tingling hands."
3. Engage an Expert Witness
Bringing an expert witness on board is another smart step for cementing the solidity of your whiplash claim. Expert witnesses are distinguished, reputable authorities in their field who testify to the technical particulars of a case. Medical expert witnesses can concur with diagnoses, explain specific injuries or symptoms and confirm the validity of your x-rays, documents and other evidence. These witnesses can be especially helpful in direct injury situations such as whiplash cases which can benefit from as much credibility as possible.
It should be noted that having an expert witness is not a guarantee that you will win your whiplash case. The other side may have expert witnesses of their own, while the legal defense team may try to attack the credibility of your expert. But the more medical authority you bring to the fight, the harder it will be to dismiss or ignore your evidence.
4. Consider Your State's Fault Determination System
No matter how clearly and genuinely injured you may be, you and your personal injury lawyer must take the degree of the defendant's fault into consideration when planning your whiplash case. While most states use a comparative fault model (in which a plaintiff can pursue damages even if he is partly to blame for the incident), some states use the yardstick of contributory negligence. This means that if you could be seen as being even 1 percent to blame for what happened, you cannot demand any damages from the defendant.
Even comparative fault can trip you up if you don't take your state's particular variety of it into consideration. For instance, your state might follow the rule of pure comparative fault, meaning that you if are judged 40 percent at fault in an accident causing $200,000 in damages, you may only get 60 percent of that $200,000 claim. But if your state uses modified comparative fault, you may denied the right to claim any damages if your share of the blame exceeds a specific percentage. Understanding these strictures can make all the difference in the amount of reparations you expect to receive -- or even whether you continue to pursue the claim at all.
Take these four tips to heart and you'll stand a better chance of getting properly compensated for whiplash-related medical costs and financial reversals. But the longer you delay action, the harder your legal journey will be -- so consult your doctor and personal injury lawyer as soon as possible! Consider contact a law firm like Walsh Fewkes Sterba to set up a consultation.Share