Invisible injuries such as whiplash, soft tissue injuries, and mental suffering are often derided. Defense counsel, insurance companies, judges, and juries may be wary of injury claims where the proof of damages does not readily present to an ordinary observer. Serious injuries from accidents, initially unseen to the untrained eye, occur and result in significant pain and distress to the sufferer. If not properly treated, these injuries may become chronic and more severe.
Plaintiffs who claim to have suffered a personal injury must prove that they have been damaged. Even if a plaintiff can prove liability, without adequate proof of damages, there is no case. Therefore, a plaintiff’s account of an injury and how it occurred is critical. The plaintiff must indicate conscious suffering of an injury or some pain and suffering whether at the time of the incident, or shortly thereafter. The plaintiff must be able to state with reasonable certainty when the symptoms of pain and suffering began to appear.
A personal injury plaintiff should identify any witnesses who can corroborate the pain and suffering. For instance, a plaintiff suffering from pain and distress may cry in pain, exhibit pinched facial features, and have difficulty in completing routine activities of daily living. An injured person may suffer from headaches, nausea, dizziness, and limited range of motion. Witnesses to these symptoms should exist. Witnesses could include medical personnel, bystanders, family members, co-workers, and others whom the plaintiff comes into contact during daily life.
A person who suffers an injury with significant pain and suffering needs to go to a doctor and seek treatment. It is important for a personal injury plaintiff to provide detailed accounts of symptoms to a physician. These injury and symptoms should be described at length during the initial examination. For instance, a person who is rear-ended in a motor vehicle and experiences sharp shooting pain as a result should describe the severity and whether the pain is constant or intermittent. The physical examination is not the time for a patient to hold back with regard to complaints and symptoms. A patient will be asked to describe the incident that caused the injury. For example, in a motor vehicle accident, the patient would describe parts of the body that were struck against the interior of the vehicle. The patient should describe the force of the impact and whether they lost consciousness. The patient may have suffered fatigue and lack of sleep since the injury, and this fact should be relayed to the physician.
The importance of the history of the injury and the signs and symptoms cannot be understated. The patient may indicate suffering from pain in areas of the body such as the spine, arm, or elbow. Patients should explain whether they suffer from numbness and tingling, and where. If the plaintiff suffers muscle spasms, the physician should be informed of the frequency, the severity, and any past history of muscle spasms. The patient should explain whether pain or discomfort is increased while undertaking certain activities such as bending or stooping. The effects of the injury on routine activities such as driving and reading are evidence of damages.
Providing a physician with an accurate and complete summary of the patient’s medical condition and capabilities before the accident is important for an accurate diagnosis. Based on the manifestations of an injury, the physician may prescribe drugs, physiotherapy, or physical therapy to treat the injuries. More serious injuries may require surgery. The patient will undergo range of motion tests. A palpation evaluation will be conducted to gauge the patient’s response to pressure and to examine tissue consistency. The physician will take a complete medical history of the plaintiff.
Medical records from before the incident may reveal a pre-existing injury or an exacerbation of a previous injury. Objective diagnostic testing, a complete physical examination, and the patient’s medical history along with subjective statements of pain and suffering paint an overall picture that lends credence to plaintiff’s injury claims or not. Exaggeration takes away from credibility. Inconsistencies between the objective and subjective may suggest malingering. When the injuries in dispute are “invisible” injuries the plaintiff’s credibility is all-important. Expert medical testimony regarding the plaintiff’s presentation and behavior, the course of treatment, responses to treatment, and the prognosis for the future course of the injury will play an important part in proving invisible injuries.
Mental pain and suffering, including grief, anxiety, shock, mortification, humiliation and fright, are forms of psychological distress that may be invisible upon initial observation. Psychological testing and a written report by a clinical psychologist or psychiatrist are persuasive evidence that can connect the mental pain and trauma of the plaintiff as a product and normal consequence of the accident. Neurological testing will reveal neurologic abnormalities. Results may be consistent with severe trauma or a blow to the head. For injuries that involve head trauma, expert testimony from an expert in neuropsychological assessments can give scientific credence to the occasionally vague manifestations of a head injury such as the failure to concentrate and loss of memory. An expert in the neurology and neuropsychology will assist the jury in quantifying damages such as the diminution of an injured plaintiff’s cognitive abilities, and a diminished capacity for the enjoyment of life.
In summary, a plaintiff’s medical history, a detailed summary of how an incident occurred, objective diagnostic testing, a plaintiff’s subjective accounts of injury, and corroborating witness testimony provide evidence of a plaintiff’s damages. It is important for an accident victim to be forthright in describing complaints. Just as important, injured parties should follow the treatment plan prescribed by medical professionals. Patients who willfully ignore physicians’ recommendations and miss appointments for treatments that are designed to decrease pain, decrease symptoms such as spasms, and improve range of motion are the plaintiffs who will not be able to prove damages.