Some herniated disc injuries leave a patient in constant pain for the rest of their lives. These patients try traction, steroid injections, therapy and eventually surgery and still find themselves in pain that will last a lifetime. Assuming (1) no question as to responsibility for the auto accident; (2) no preexisting injury or pre-accident degenerative disease; and (3) reasonable insurance coverage for the at-fault driver, the settlement value of these types of herniated disc cases are almost invariably six-figure and sometimes even seven figure cases. One important factor to note when assessing the value of a herniated disc case, the insurance money to recover must be there in order to recover full value of the injury. That is why we are constantly discussing Uninsured and Underinsured Motorist Coverage within this site and on our blog.
The more complicated cases involve preexisting injuries. A favorite tactic of lawyers defending personal injury cases on behalf of the insurance companies involving herniated discs is pointing the finger at preexisting degenerative problems with a patient's spine, such as Spinal Stenosis, Osteoarthritis, and Spondylolisthesis. Most of these are conditions that begin in many people in their early 30s. Therefore, it must be established that the patient's problems are not due to the degenerative condition, but to the trauma sustained in the accident.
All of this begs the question of what happens when a person has a pre-existing herniated disc or some type of degenerative changes and was asymptomatic (without symptoms) before the accident. There are two California jury instructions on point: Judicial Council of California – Civil Jury Instruction - 3927 Aggravation of Preexisting Condition or Disability and Judicial Council of California – Civil Jury Instruction 3928 - Unusually Susceptible Plaintiff. If you have either one of these issues, you and your attorney must be able to clearly articulate the difference between your problems and treatment before the auto accident and your current condition. If there is no difference in your condition after the accident, your chances of a substantial recovery diminish dramatically. On the other hand, if there is a notable difference in your way of life after the accident that would not have occurred in the absence of the auto accident, your chance of a quality settlement increases dramatically. Select here to visit our herniated disc information page.
A “Soft Tissue Injury” (STI) is the damage of muscles, ligaments, and tendons throughout the body. Common soft tissue injuries usually occur from a sprain, strain, a one-off blow resulting in a contusion or overuse of a particular part of the body. Soft tissue injuries can result in pain, swelling, bruising and loss of function. If severe pain persists after the first 24 hours it is recommended that an individual consults with a professional who can provide a medical diagnosis and implement a treatment plan so the patient can return to everyday activities as soon as possible. Often times the best and most experienced doctors that treat "Soft Tissue Injuries" are Doctors of Chiropractic (D.C.). These are doctors that most commonly deal with accident victims and accordingly, they are familiar with the injuries sustained and provide hands-on and active treatment to aid in the recovery of accident-related injuries.
Most insurance companies (I say most because some remain decent) do not give Soft Tissue Injuries (STI) view Soft Tissue Injury cases as risky to challenge or even credible for that matter. Soft Tissue Claims are assigned to newer insurance adjusters out of the gate and that adjuster is given limited authority (money) to settle the claim. In order to get more authority, the assigned adjuster is required to request it from their claims supervisor. The supervising adjusters typically do not like it when junior adjusters come into their office to ask for additional authority on a claim that is not viewed with urgency or seriousness in their eyes.
Now you may be asking at this point, is this his opinion? How am I qualified to discuss this? I know this because I have been to several claims offices throughout the Country during my years as an Insurance Defense Attorney. I regularly lectured to various insurance companies on new topics or issues. I regularly lectured about the mechanics of new laws and how to legally and effectively apply them to the claims process. During my tenure as an Insurance Defense Attorney, I was also asked too many times to count to sit in on adjuster roundtable meetings. These are when a list of claims with urgent issues are discussed by between 5-10 Insurance Adjusters, Supervising Adjusters and Insurance Defense Attorneys, at times. The issues that I am discussing are based on firsthand knowledge of strategy and tactical claims handling procedure.
During my years as an Insurance Defense Attorney, I had the opportunity to meet and speak to many adjusters on a variety of social and professional levels. To be fair, I can say that there are many decent insurance adjusters out there that will try to be fair to the extent they are allowed by their employer.
For the most part, insurance companies see soft tissue injury claimants as opportunistic people with a tendency to exaggerate. When there is a soft tissue injury coupled with what may appear to be a low impact collision, the claims are often assigned to the insurance company's SIU (Special Investigations Unit). While it may sound scary and intimidating, SUI simply is a more proficient and aggressive unit when it comes to gathering information about the accident and the parties involved.
In 2007, there was an extremely informative story conducted by CNN entitled AUTO INSURERS PLAY HARDBALL IN MINOR CRASH CLAIMS, authored by Drew Griffin and Kathleen Johnson. Click Here
for Article & Video of this Story.
Predicting the trial value of any California Personal Injury case is almost impossible. There are many factors that can affect the value of a case. Your attorney can only give you a very general idea of the value of your case based on cases we have handled with similar injuries and will not be able to predict the specific amount you will receive. That said, our lawyers generally are able to give our clients a settlement range that they can reasonably expect after our lawyers have reviewed the client's personal injury case.
With respect to the value of your personal injury case if taken to trial by our firm, the results are even more difficult to predict. That value of your case is that value placed on it by 12 California Jurors in State Court and 6 Jurors in Federal Court. They decide together how much money to award you for your injuries. Accordingly, the value ranges for the exact same injury with similar facts vary widely depending upon who those jurors are. Jurors bring with them, just as all of us do, their own personal biases that can either help or hurt you. If you are like many of us, you still want some data, something to give you some idea of what juries are awarding in personal injury cases in California. In 2007 - certainly a while ago but this is the data we have and we don't think things have changed much - a company that analyzes jury verdicts in personal injury cases did a study that found that the nationwide median jury award in a personal injury case was $38,461 and the nationwide plaintiff recovery probability was 55 percent. The percentage relating to the probability of recovery has dropped over the years due to many factors but now it is believed to be closer to 46 percent. The average jury award in California car accident personal injury cases was $11,277. The most likely explanation for this is that the insurance companies have targeted certain types of cases to take to trial based on the percentage of likelihood based on past case results that a defense verdict will be the result.
What does this data mean for your case? Virtually nothing. If this data is discouraging to you regarding the value of your personal injury case, you might be comforted that Benjamin P. Tryk, prior to forming Tryk Law previously worked for dozens of insurance companies. During his tenure as a partner for a large statewide insurance defense firm, Ben was exposed to how insurance companies evaluate a liability position, how they calculate potential settlement value, how they calculate risk in addition to defense tactics and many other nuances that may benefit you and your case whether it settles or proceeds to trial. A good well-prepared California Personal Injury Lawyer (and there are many good injury attorneys in California) that meticulously prepare a case and present it honestly and fairly to a jury typically get much better jury awards than those who do not.
You need to discuss with your lawyers the specific facts of your personal injury case, the pros and cons, and come to a conclusion about the fair value of your case and the goal you hope to achieve in addition to a worst-case scenario. This will include a discussion of the severity of your injuries, the amount of available insurance, how clear the connection is between your injuries and the accident, how strong your liability case is, the quality of the witnesses, and the expected jury perceptions of you and the defendant (remember, the jury is not told there is insurance covering the claim). This discussion will also include analysis of the venue where the case is being tried. In California, as we mentioned earlier, Fresno and the Central Valley in general, are considered extremely conservative venues (which means our jury pool is hesitant to award damages unless the case merits such an award). This is true across the country -- juries typically award more money in urban areas than they do in rural areas.
Our firm handles several Whiplash Injury cases and we know many people, family, friends, former and current clients that have been affected by significant Whiplash Injuries. Soft Tissue or Whiplash Injuries may also be the beginning of injuries that are much more serious than you would expect. This happens to an extent that is far more common than most people realize.
Medical science is beginning to realize this. A new study in the "Journal Brain Injury”
which is a peer-reviewed monthly publication on issues relating to the brain, highlights the frequency with which brain injury can occur in whiplash injury car accident cases. The study looked at 1,200 MRIs in neck pain patients and found that those patients suffering from whiplash were more likely to have anatomical changes to the brain called Chiari Malformation. In whiplash car injury victims, the bottom part of the brain dipped through an opening in the base of the skull after a whiplash injury, causing a brain injury in 23% of the whiplash cases studied. This translates to a lot more brain injuries from whiplash car accidents than even accident lawyers who are aggressively taking whiplash injury cases ever imagined. So few patients ever get a brain MRI that would uncover a Chiari Malformation.
There are also serious neck injuries that linger after whiplash accidents for reasons we just don't yet understand. For all that medical science has accomplished, doctors still don't understand enough about these injuries to the spine to understand exactly why some people have prolonged and permanent injuries from even relatively low-speed car accidents. In these type of case, we take every case with the assumption that it will go to trial given the stance that insurance companies take regarding these cases. One factor that really can make or break this type of case is whether our client is what type of client we have. Essentially, what we are looking for in these cases to take to trial is an “exceptional and likable plaintiff”.
There are two additional elements that can also make your whiplash case much stronger: (1) a permanent injury after a whiplash injury accident, and (2) a very compelling story with an extremely strong and credible victim.
If you have sustained a serious injury as the result of a whiplash accident in Fresno or surrounding areas, you are in particular need of a good, experienced car accident lawyer that can help you present a meaningful claim for settlement or, if necessary, at trial. If you have suffered a soft tissue whiplash injury in a car or truck auto accident call Tryk Law - Accident Injury Attorneys of Fresno to get a free no obligation consultation, call us at (559) 840-3240