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But it’s only a “soft-tissue” injury!

April 6, 2013 by Steven M. Gursten

Michigan lawyer explains the whiplash and soft tissue defense used by insurance companies today

soft tissue injury whiplash

My, how all the personal injury lawyers in this state have been brainwashed by the defense bar and the insurance companies. Many very competent Michigan lawyers won’t even accept people who have suffered soft tissue injury cases anymore as clients – even though the medical literature says they can be very painful and permanent injuries.

And the values of these types of whiplash and soft tissue/connective tissue cases?

When I started practicing nearly 20 years ago, I was settling bulging disk cases for $75,000. Today,  lawyers are settling them for $7,500.

What changed?

Well, Kreiner v. Fischer and the uncertainty it created clearly lowered settlement values across the board. Allstate’s MIST program also lowered values, exposing the hundreds of  Michigan personal injury lawyers who hadn’t taken a case to trial in years, sometimes even decades. These lawyers had frankly grown soft, through two decades of everything settling or going into arbitration. When all of a sudden Allstate adjusters started offering $0, and these lawyers had to go to trial, they got killed. The resulting jury verdicts were the third part of this trifecta/perfect storm that lowered values.

What hasn’t changed?  How about the medical literature? Today there are literally more than a hundred peer-reviewed, medical journal articles that discuss “soft tissue” whiplash and connective tissue injuries.  All of these articles say that these injuries can be permanent and cause permanent pain.

I remember when I was 28, at the time just a baby lawyer.  I was trying a MIST-soft tissue case against Allstate in Oakland County, Michigan – what is considered a very conservative and Republican jurisdiction.  Allstate’s offer at trial was $10,000.  The jury returned over $1 million – actually $1,060,000. The injury was purely for what injury lawyers in Michigan would call a “soft tissue case.”  In fact, there was no economic loss since my client was nearly 70 years old, so the verdict was only pain and suffering for a soft tissue injury.

How to re-frame the soft tissue injury case

What did I do that so many other Michigan lawyers fail to do?  I started by re-framing the case – moving it away from the defense anchor that soft tissue means it must be small and inconsequential,  and helping the jury understand just how serious a soft tissue injury can be.

The “mild” as in a mild traumatic brain injury epithet is very much like “soft tissue.” I always get the defense medical examiner to explain to a jury that “soft tissue” is everything – except your bones and teeth.

All mortal injuries are soft tissue.

Conversely, a broken bone can’t kill you.  Our bones exist for two reasons:

  1. To provide the frame from which to hang soft tissue, just like the dead wood in a tree exists to support the live-giving leaves; and
  2. To protect the vital tissues. So the primary purpose of the skull, for example, is just to serve as a box for our brains.

I then force every defense medical expert to admit that broken “hard tissue” is almost always non-life-threatening, easily diagnosed, and usually easily fixed (“It’s just carpentry”).

A “soft-tissue” injury from something as small as an ice pick – in the brain, in the heart, in the kidney, into any major artery – is lethal.

“It’s just a soft-tissue injury” describes why a soldier throwing himself onto a grenade, dies.

“It’s just a soft-tissue injury” explains why Reggie White – considered one of the toughest lineman to ever play professional football – was forced into retirement by a tiny bulging disk without impingement.

It’s all a matter of vocabulary. It’s anchoring. It’s framing the issues. It’s why “pro-lifers” don’t call themselves “anti-choicers.” It’s why Governor Snyder and the insurance industry will likely succeed in enacting some type of No Fault insurance “reform” in Michigan – because they have framed the debate successfully so that people believe that unlimited lifetime medical is the main driver of high No Fault insurance premiums. In reality, collision coverage and theft dwarf these costs and are the main driver of high insurance (as well as not having an insurance commissioner that can regulate excessive profit margins).

It does not change the underlying facts, but vastly changes how juries – and sadly, even plaintiff personal injury lawyers throughout Michigan, respond.

Don’t let the defense lawyers and the insurance industry create the framework in which your case will be tried.

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