Whiplash is probably the most common injury that people suffer in motor vehicle collisions. It’s an acceleration-deceleration injury. That force rapidly throws a victim’s head forward and then backward. It results in muscles, tendons, ligaments and other anatomical structures being strained, sprained, fractured or otherwise damaged. Whiplash can be acute with symptoms that can last from six to eight weeks, or it can be chronic and last a lifetime.
Suing for a whiplash injury
Yes, you can file a personal injury lawsuit and seek damages for a whiplash injury, but you’ll be required to show that the driver who allegedly caused your injury was careless and negligent. In order to prove negligence, you’ll need to prove the following elements:
- That the other driver owed you a duty of care
- He or she breached that duty
- The breach of duty caused your crash
- The crash was the proximate cause of your whiplash injuries
- You suffered legally recognized damages
If you fail to prove even just one of those elements, your case is going to fail in its entirety.
Subjective and objective symptoms
A person who suffers a whiplash injury might complain of subjective symptoms that won’t show on an x-ray, CT scan or MRI. Those symptoms could include:
- Blurred vision
- Pain, tingling or weakness in the shoulders, arms and hands
- Loss of range of motion of the neck
There are other times when they might show objective signs of an injury if the right diagnostics are done. Those could be a displaced or herniated spinal disc, a displaced neck vertebra or a compression fracture. These are all objective signs of injuries that a jury can see when a radiographic image of the injury is placed on a flash box in a courtroom.
Defending soft tissue cases with subjective symptoms
If there’s a soft tissue injury that doesn’t show up on any radiographic images, expect an insurance company to defend the lawsuit vigorously. Insurers won’t pay on soft tissue cases on the injured claimant’s good faith alone. In any soft tissue injury case, it’s crucial that the injured victim seek medical attention and documentation of the injury right away. A physician and appropriate therapy will aid in healing from the start, and important medical records will be generated that will help substantiate a very real injury that medical science still can’t verify. Spasms, stiffness and loss of range of motion will be noted by the treating physician and any therapists. That’s far better evidence than standing in front of a jury of 12 people and telling them that you want compensation for injuries that you suffered from being rear ended without any proof of damages.
What if the accident wasn’t a rear-ender?
If you were in an intersection accident, somebody turned left in front of you on the open road, or somebody exited from a private drive and hit you, the opposing insurer is still going to defend against your medically verified soft tissue injury. It’s going to raise the affirmative defense of comparative negligence.
What’s comparative negligence?
When comparative negligence is raised, a determination must be made as to the percentage of fault attributable to each of the parties in an accident. That’s either done privately between the parties in a settlement, or it’s a question of fact to be decided by a jury. The good news about that is that Arizona is known as a pure comparative negligence state where a claimant can recover damages, even if he or she was 90 percent at fault for an accident. In other states, a person is barred from recovery if he or she is determined to be just 50 or 51 percent at fault.
Almost all whiplash injuries are legitimate, even if modern radiology can’t prove them. Doctors, family members and people that you work and socialize with can prove the difference in your life before and after a whiplash injury. If you or a family member has suffered a whiplash injury or any other type of injury in a motor vehicle accident, contact us right away at 602-274-9662 for a free case consultation and evaluation. No legal fees are due unless we obtain a settlement or verdict for you.