Soft Tissue Injury - the Plaintiff's Case

I. What to Look for When Assessing the Case

There are a number of key issues that should be assessed when evaluating the strength or weakness of the case. None of these issues are determinative, but they all may have considerable weight effecting the value of the case.

First, the force, velocity and mechanisms of injury are important. Was this a minor accident with minimal or no force applied to the occupant of a motor vehicle, or is this a case where the individual sustained direct trauma through a fall or impact with portions of the interior of the motor vehicle? How fast were the vehicles proceeding? How much property damage was there? Where were the forces applied? Were the forces absorbed by the automobile bumper or transmitted to the occupants? Where was the occupant in the vehicle? Was he/she turned? Did the occupant impact any part of the interior of the vehicle? Were there other factors regarding the mechanics and forces of injury? This is important information. For example, it is known that lateral forces generally will cause more severe injury than direct linear forces. Any evidence of direct trauma as opposed to acceleration-deceleration injury, is important. Scars, bruises, contusions and other evidence of trauma can buttress the claim that there has been forces sufficient to cause soft tissue injury. Often the forces will be sufficient to cause disorientation, a momentary loss of consciousness or other signs or symptoms suggesting an insult to the neurological and neuromuscular systems. In an extreme case there may be a momentary or extended period of loss of consciousness all of which is consistent with neurological injury and other forces sufficient to cause a severe acceleration/deceleration injury or other impact competent to cause soft tissue injuries.

Second, if your client is either transported to or goes to an emergency room, the history and findings in the emergency room are often critical. If the history indicates injury and there are other findings in the emergency room consistent with physical trauma such as bruises, contusions, disorientation, neurological findings, then all of this information would be consistent with the type of forces competent to cause neuromuscular and other soft tissue injuries. Often, however, the only information in the emergency room will be the plaintiff's subjective complaints. These cannot be discounted but obviously the lack of any findings in the emergency room of any kind can weaken the case.

Third, the results of any physical exam or testing should be considered. Typically in a soft tissue injury case, there will be no neurological findings. However, there are cases where, for example, x-rays will show a straightening of the lordosis of the cervical curve, consistent with a contraction of the muscles resulting from trauma. There may be other findings upon physical exam such as muscle spasm. Obviously, if there are more profound findings on neuroimaging studies such as disc protrusion or herniation, these would further support evidence of severe physiological injury.

Fourth, the progression and duration of symptoms must be looked at. Often when dealing with soft tissue injuries, there will be an initial period where symptoms are not severe but then they progress as swelling and other physiological changes occur. Although symptoms can be effected by a variety of factors including stress, strain, weather, and activity level, one would generally not expect to find inconsistent or marked increases or decreases in symptomology. Typically these symptoms follow a relatively predictable course and last for a relatively predictable duration. If your client's clinical course is way outside the norm, it may raise a question of the etiology or validity of the injury.

Fifth, next the consistency of the history must be looked at. The plaintiff may have seen multiple health providers including a primary care physician, orthopedist, chiropractor, physical therapist, neurologist or other doctors. If the plaintiff gives a consistent history as to the cause of injury and the duration and progression of symptoms, the reliability of that history is bolstered. If, on the other hand, the history given by the plaintiff is not consistent or shows further "elaboration" of symptoms as medical providers are seen down the road, this can raise a question regarding the reliability and credibility of the plaintiff, and the reported cause of plaintiff's injuries. All medical records should be closely examined and any inconsistencies in the history adequately addressed.

Sixth, any premorbid, that is, preaccident conditions, must be closely examined. Is this a plaintiff who was relatively healthy and functional prior to the injury, or is this a plaintiff who has had numerous prior visits to a chiropractor, physical therapist, with multiple complaints and multiple periods of disability or inability to work? This can be one of the most important factors in assessing the reliability and credibility of the plaintiff's current complaints. If this is a person who has shown a conscientious work history, and has had little prior medical conditions or complaints, and who now has complaints of pain that interfere with the person's normal functioning and ability to work, one would generally presume that these complaints are valid. On the other hand, a person who prior to the accident had long periods of dysfunction, either due to physiological or other causes, and who now attributes his or her inability to function to the accident, may be subject to some skepticism. Accordingly, plaintiff's preaccident medical records, psychological records and employment records must be closely examined and any prior claims of injury, accident, work connected injuries or other claims whatsoever must be closely scrutinized.

Seventh, closely related to premorbid conditions, are any concomitant conditions that might account for or contribute to plaintiff's symptomology and/or disability. Is this a plaintiff who other than the accident has relatively few stresses or traumas going on in his or her life which would account for their symptomology, or is this a plaintiff who even prior to the accident was having difficulties at work or in their marriage or had recently suffered the loss of a loved one, or who was under other psychological or physiological stresses? It is true that the defendant takes his victims as he finds them and that the plaintiff's vulnerability or predisposing characteristics does not necessarily relieve the defendant from liability. However, if the primary cause of plaintiff's complaint is not the accident in issue, but rather other traumatic events that can cause physiological stress, such as a catastrophic loss, job or marital stresses, then these factors must be considered. Because often these injuries...