Us in the world of litigation often hear these wretched words “this is just a ‘soft tissue’ case"… In the eyes of the defense, I believe that if you do not have broken bones, missing limbs, destruction of vital organs, or something of the like, you may just have what they love to call a “soft tissue case". I have started a new fun game when dealing with adjusters. I ask them, what defines a Soft Tissue case. The answers I get are astonishing (which is actually not really surprising)… When I point out that my client sustained a disc herniation or bulge (a 23 year old client for example… there goes the degenerative arthritis argument right? You’d be surprised that they still can push that issue, as low as 20 year olds in my experience)as a result of the horrible fall they took at their grocery store as a result of the clear negligence of the store (let’s assume they admit fault, and just want to fight and spend thousands, if not tens or hundreds of thousands to avoid paying for the injury clearly caused by the admitted negligence of the store). So I say, is a disc bulge a “soft tissue" injury in this case? The ever-so-knowledgeable insurance adjuster quickly retorts, “of course it is". When I respond, “did you know the bulge, which has every indication of being caused by this hard fall to the ground that knocked my client unconscious, is 12 millimeters"? For those that don’t know, a 12 millimeter bulge is huge by just about any standard and if causing severe radiating pain that physical therapy, exercise and/or medications does not cure will almost certainly require a very severe surgery (ranging from a laminectomy, to anterior lumbar fusion at potentially multiple levels, to a full disc replacement). Most adjusters cannot help but admit that a bulge and symptoms of that severity cannot possibly be considered “soft tissue", but I dare you to work down the level of bulge or herniation sizes and symptomology caused by them to find out when a bulge goes from a serious injury down to a mere “soft tissue" injury… It is fun to test the opponents, but not so fun for the client who has the problem that is life-altering regarding pain that won’t go away and restrictions on activities that will never resolve without surgery. Yet this term permeates the world of personal injury and for some reason, JURIES LISTEN TO IT. If you get a jury buying into the garbage that your client, the VICTIM, merely sustained this virtually undefinable term, “soft tissue injury", you may find the jury awarding negligible amounts or even ZERO. As we fight to squash this term, the insurance companies through their defense firms love to use it over and over in front of juries, often successfully, to minimize an injury that is life-altering and probably worse than a broken bone (which will almost always heal almost perfectly if done right). I would love to hear comments, debate, discussions on these issues, as well as real life war stories from negotiating “soft tissue" case settlements to taking them to trial. At our firm, we won’t use that term, and we will take the case to trial if our client is in true pain, regardless of whether it shows up as a broken bone or missing limb on some test at a hospital. More firms need to take these cases to task to keep convincing juries that God forbid they sustain an injury that will never get better but that is coined a “soft tissue injury", that they deserve to be fairly compensated for their injuries, including pain and suffering for past, current and future time periods that they will likely suffer through. I welcome all comments
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