Whiplash is a non-technical term used to describe neck pain resulting from an injury to the soft tissue of the neck. By soft tissue we mean injuries to the neck muscles, tendons and ligaments and not broken or fractured bones. Whiplash injuries primarily result when the head snaps forward and then snaps back. Whiplash is an old-fashioned term that is still used, though you are more likely to hear different, more precise medical terms such as cervical sprain, cervical strain or hyperextension injury.

Causes of Whiplash Injuries

Whiplash injuries can happen in many ways though most commonly they occur in motor vehicle accidents and sporting activities. In a rear-end car accident, a driver or passenger's head often snaps forward and then slams back against the seat and that can cause a whiplash injury. Whiplash can also occur from falls, assaults and from shaken baby syndrome.

Diagnosing and Treating Whiplash Injuries

The seriousness of a whiplash injury can vary greatly and the best treatment will come from an orthopedist, a chiropractor or a combination of the two. A physical exam and interview of the patient will provide the basis of a diagnosis.  X-rays can rule out any broken bones. In some cases, doctors will order an MRI or other imaging tests can determine the extent of soft tissue damage and identify other potential injuries.

A treatment plan may use some or all of the following:

• Administration of anti pain medication
• Administration of anti-inflammatory medication
• Use of a cervical collar
• Physical Therapy
• Physical manipulation of the neck
• Cervical traction
• Application of heat
• Rest

As with all serious injuries, it is important to seek and follow the advice of a doctor who will prescribe a course of treatment that best meets the particulars of your injury and condition.

Legal Implications of Whiplash

If you have suffered a whiplash injury as a result of another person's negligence or recklessness, you may be able to seek compensation for your injury. To do so, you must be able to prove that the injury resulted from another person's negligence or recklessness. You must also put a value on the injury. That value will vary depending on the severity of the injury, the nature and amount of treatment, the recovery period, the impact the injury had on your income and daily activities and the value on similar cases in your community.  A personal injury attorney can help you determine the value of your potential case.

Whiplash Injuries, Car Accidents and New York's Threshold Laws

Whiplash injures often occur as a result of motor vehicle accidents, yet the serious injury threshold requirement of New York's No-Fault Auto Insurance Law has made it increasingly difficult to collect compensation for these injuries. Therefore, it is important to consult an attorney with experience handling cases involving whiplash, No-Fault and the serious injury threshold.

Section §5102(d) of the New York State Insurance Law defines seven standards for a serious injury.  Therefore, a person must satisfy at least one of these seven definitions before he or she can pursue a lawsuit:

1. Personal injury which results in death;
2. Dismemberment; significant disfigurement;
3. Fracture;
4. Loss of a fetus;
5. Permanent loss of use of a body organ, member, function or system;
6. Permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or
7. A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

You will notice that the law defines items one through four clearly and makes those items relatively easy to determine. However, items five, six and seven leave room for debate and argument. In many cases, the ability of a person to meet the serious injury standard depends on meeting one of the requirements listed in items five through seven. This is especially true for people who have suffered whiplash and other soft tissue injuries, which are common in car accidents.

Since the law does not make the definition of a serious injury clear, the Courts have defined them through rulings by judges; those rulings are known as "case law." Proving that you have suffered a serious injury in the eyes of the court requires your attorney to review your medical files and consult with your doctors. Given that diagnosis and analysis, your attorney will then research the case law to find cases that show that your injury does or does not meet the legal threshold for a serious injury.

The court will look at several key issues in assessing an injury:

1. Do the damages meet one of the seven standards listed in the NY State Insurance Law?
2. Were there pre-existing injuries and how do they affect this injury?
3. What is the nature of the injuries and their impact on the plaintiff?
4. Were there gaps in treatment and why?
5. Are the limitations quantified and documented?
6. Are the medical records certified?

The case law is constantly changing. This situation certainly clouds the threshold for a serious injury in New York creating doubt for all parties, especially plaintiffs. If a person has a broken bone or a fracture of any kind, that injury immediately meets the threshold requirement.  Many car accidents result in whiplash or soft-tissue injuries such as sprains or bulging discs in the spine. The courts have been making it harder and harder to meet the threshold requirement with soft tissue injuries. Anyone who has suffered whiplash knows that such an injury can be more painful and debilitating than a broken finger, yet the law and the courts automatically treat the broken finger as a serious injury and may dismiss the soft-tissue case.

You can read more about the serious injury threshold here.

I hope you have found this information helpful. If you or a loved one has suffered whiplash due to the negligence or reckless of another person, you may be entitled to compensation. If you have questions about a potential whiplash case, you should consult an experienced personal injury lawyer in New York. I will be glad to answer your questions and assist you. You can call me at 1-800-660-1466 or email me at Carol@schlittLaw.com. You can also visit my website (www.SchlittLaw.com) or read more on my blog, New York Law Thoughts.  

This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.