Caused by the sudden jerking of the head back and forth, it’s one of the most common types of accidents that personal injury lawyers deal with: whiplash. Even in accidents that appear to be minor fender benders, many drivers begin experiencing the signs of whiplash within 24 hours of the crash.
But what exactly is whiplash? What causes it? How much of a payment can you expect from your whiplash injuries? If you’ve sustained accidental whiplash injuries, Long, Jean & Weschler, P.A. can represent you on a contingency basis. That means that you will not have to pay out of pocket for our professional legal services. Call today for a free, no-obligation initial consultation. If we believe you have a viable case, we can represent you on a contingency basis.
What is Whiplash?
One of the most common causes of whiplash is a rear-end car accident, so we will explain it using that example. When a car is impacted from behind, the seat pushes into the driver’s body. The driver’s head, which is at rest, reacts more slowly to the impact, essentially jerking backward. Once it reaches its limit, because the head only goes back so far, it snaps forward, causing a cracking noise like a whip.
The sudden motion involved in this type of accident causes a neck sprain — the tearing of or stretching of ligaments. In some cases, whiplash symptoms may be masked by other injuries in the area. It can also hide cervical spinal injuries. This is why it’s always a good idea to follow up with your doctor after a rear-end collision, even if you don’t immediately feel pain, stiffness, or other injuries.
What is a Whiplash Settlement?
A “whiplash settlement” is a payout from an insurance company or the responsible party to compensate an accident victim for whiplash injuries. There are several factors that affect whether or not a victim is entitled to a whiplash settlement and the settlement amount.
Establishing Liability in Whiplash Cases
In order for you to collect a whiplash settlement, your legal team will have to demonstrate that your case meets the following legal requirements.
Requirement 1: Duty of Care
In order for you to have a case, you must be able to show that the defendant had a legal duty of care. This means that under the law, they have some responsibility to take an action or refrain from an action. All drivers have a duty of care to operate their vehicles in a safe manner. If a vehicle is approaching a car stopped at an intersection, for instance, the driver has the responsibility to apply their brakes before striking the car. Even if the roads are slippery from the rain, which is often the case in Broward, it’s incumbent on the driver to stop in time.
Requirement 2: Breach of Duty
The personal injury lawyer assigned to the whiplash case must next show that the defendant somehow breached their duty. Consider a delivery driver who is trying to find an address with the map on their phone instead of paying attention to the road. If this lapse of attention causes them to strike another vehicle, they’ve breached their duty.
Requirement 3: Causation
The breach of duty must have been the cause of the accident or partially caused it. If we’re considering the type of rear-end collision that frequently causes neck injuries, the rear vehicle is usually at fault. Common defendant causes for this type of accident are driving too closely, distracted driving, and driving too fast for conditions.
Requirement 4: Damages
Damages in an accident are assigned a monetary amount, even when the damages don’t result from a financial loss. In personal injury law, damages are economic, non-economic, or punitive. Economic damages represent your financial losses, like medical bills, lost wages, property damage, etc. Non-economic damages are awarded for your pain and suffering. Pain and suffering include emotional trauma, discomfort, incapacity, and general inconvenience.
Economic and non-economic damages are compensatory — they compensate you for the damages you suffered in the accident. Punitive damages are additional funds meant to punish the at-fault party for intentional behavior or egregious negligence. Punitive damages are considered non-compensatory and are not always awarded in accident cases. An example of a situation where punitive damages might be awarded would be a drunk driver with a very high BAC whose intoxication leads to severe injuries.
There are no caps on compensatory damages in the state of Florida. The cap on punitive damages is $500,000 or three times the amount of compensatory damages, whichever is higher.
Florida’s Comparative Negligence Law
Under Florida’s modified comparative negligence law, a person injured in an accident may still be able to collect damages even if they were partially at fault. As long as the parties agree that the plaintiff is less than 50% at fault, they can receive a partial claim. The best way to illustrate this concept is with an example.
Driver A suddenly changes lanes, cutting off Driver B, and then brakes suddenly. Driver B then collides with the back of Driver A’s vehicle. The court then rules that Driver A was 20% at fault because of their sudden lane change, but Driver B was 80% at fault because they were not cautious enough to avoid the accident. If Driver A’s total damages are $50,000, they could collect $40,000. Their settlement is reduced by 20% for their liability. Because Florida has a modified liability law, Driver B doesn’t collect anything since they are over the 50% threshold.
What is the average compensation for a whiplash injury?
Trying to pinpoint damages specifically for a whiplash injury can be difficult since many accident victims have other injuries that can significantly increase the cost of medical care and increase the period of time off from work. The following factors affect whiplash settlements:
- Whether or not the victim was transported to the hospital. The average cost of an ambulance ride in Broward is $950.
- Whether the accident involved an overnight hospital stay. The most recent data from KFF shows that the average price for a single night in the hospital is $2,826 in Florida.
- How many days you miss at work. Even if you do not have a labor-intensive job, you may need to take time off from work. The financial cost to you depends on your wages.
- How much your physical rehabilitation costs. According to ValuePenguin, the national cost of physical therapy is $137 per session. If you require eight sessions, it could cost $1,000.
The more severe your whiplash injury is, the greater the pain and suffering portion of your settlement should be. Most Florida personal injury settlements exceed $10,000, but they can easily be twice that amount and, in some cases, even reach the low six figures. You may be looking at this list and wondering if insurance pays for some of these things. Yes, you may receive partial compensation from your auto insurance policy, your health insurance, and in the event of a work-related whiplash accident, through worker’s compensation. If you receive a settlement, these parties will receive compensation for their financial consideration.
How to Apply for Whiplash Compensation
If you are involved in a car accident that has resulted in whiplash, you can file a claim through your insurer or the at-fault party’s insurance company. If you have the minimum legal PIP insurance in Florida, your company will pay up to $10,000 for your injuries. In addition, the defendant’s liability insurance may also pay up to the limits of their policy. While you may file an insurance claim on your own, you should not accept a settlement without first speaking to an attorney. If you’re in the Broward area, the attorneys at Long, Jean & Weschler, P.A. will review your claim in a free consultation. If you decide to hire us, we will negotiate with the insurance company to get you a full and fair whiplash settlement. We only receive compensation if your case successfully settles or we win in court.
Neck Injury Symptoms & Diagnosis
People who suffer whiplash injuries in car accidents don’t always know immediately that they’ve been injured. Symptoms may appear shortly after the accident, or may emerge later–even days later. To further complicate matters, whiplash symptoms aren’t always consistent. Of course, most people recognize neck pain, stiffness, and limited range of motion in the neck as possible symptoms of whiplash. But, others are less obvious.
Some of the most common include:
- Headaches
- Shoulder or back pain
- Numbness or tingling in the arms
Still, some symptoms do not even seem to be neck-related, such as:
- Fatigue
- Dizziness
- Blurred vision
- Cognitive issues
- Depression or irritability
- Ringing in the ears
- Sleep disruptions
Because of the range of symptoms, some people don’t immediately connect the problems they’re experiencing to the accident, and may delay seeing a physician or even fail to mention the car accident when first consulting a physician. After a car accident or any other traumatic event, it is generally best to err on the side of caution and see a medical professional right away if anything seems out of the ordinary.
One challenge in the diagnosis of whiplash injuries is that, as a soft tissue injury, whiplash doesn’t show up in an x-ray or other imaging test. The doctor may run those tests to rule out more serious injuries, but the actual diagnosis of whiplash is based on a combination of the information provided by the patient and the doctor’s observations. For instance, a treating physician will typically ask you to turn your head to assess your range of motion and what type of movement increases your pain.
Unfortunately, insurance companies often use the lack of clear diagnostic proof of a whiplash injury to fight claims or attempt to minimize compensation.
What is the Best Treatment for Whiplash?
Whiplash treatment typically involves both pain management and work to restore the range of motion in the neck. Depending on the pain level, pain management may be as simple as a day or two of rest, some over the counter medication, and the application of heat or cold. In more serious cases, stronger medications may be required. Some possibilities include prescription pain medications, muscle relaxers, or even lidocaine injections.
A person suffering a whiplash injury may also be advised to wear a foam collar. Medical opinions on the use of cervical collars vary, and this is typically determined on a case by case basis. While the collar provides support, it also limits motion, which can be counterproductive.
The treating physician will usually also recommend specific exercises intended to restore range of motion and make it easier for the injured person to go on about his or her regular activities. In some cases, this may require physical therapy.
It’s important to follow the doctor’s recommendations, including following up with physical therapy if recommended. Failing to properly treat a whiplash injury may extend the duration of the injury and increase ongoing pain and limitations. In addition, failure to follow medical advice may hurt any claim for damages, as the responsible party’s insurance carrier may argue that the injury would have been less serious if the injured person had done as instructed.
Valuing a Florida Whiplash Claim
In Florida, your PIP is the primary source of coverage for medical expenses associated with a car accident injury. PIP covers up to $10,000 in medical expenses. That’s enough to cover many whiplash injuries, which means there’s often no litigation with the responsible party. If your medical expenses exceed that limit, you may be able to seek reimbursement from the responsible party. However, Florida law limits who can pursue a claim for intangible damages like pain and suffering, mental anguish and inconvenience.
Generally, a car accident victim is entitled to these additional damages only in cases involving:
- Significant and permanent loss of an important bodily function.
- Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
- Significant and permanent scarring or disfigurement, or
- Death
Some whiplash injuries are permanent. In one study, researchers found that people who suffered whiplash injuries were more likely than those who suffered other relatively minor injuries to have long-term reduction in quality of life. Still, it may be difficult to establish that the injury is permanent “within a reasonable degree of medical certainty.” Another circumstance in which a whiplash injury victim may be able to pursue this greater range of damages is when the whiplash injury is accompanied by at least one other injury that meets the statutory requirement.
Calculating Damages in a Whiplash Case
You may have heard that damages in a car accident case are determined by a formula, such as three times your economic damages. Economic damages are countable monetary losses, such as medical expenses and lost wages.
While that sort of general rule is sometimes helpful in getting a rough idea of what might be possible, many variables impact the value of a specific claim. Some examples include:
- The seriousness of your injury
- How the injury occurred
- How clear liability is
- Whether the injured person was partly responsible for the accident
- The available insurance coverage
The amount of a car accident settlement or verdict may also be impacted by factors that aren’t directly related to the accident and injury. Some of these may include the quality of your representation, the county in which the accident occurred, and the insurance company involved.
Underinsured Motorist Coverage
While a car accident lawsuit is technically filed against the responsible driver, it is typically that driver’s insurance company that provides an attorney, determines whether to settle the claim and for how much, and makes payment of any settlement or verdict. That’s important because most drivers don’t have money or assets to cover a significant settlement or judgment.
Unfortunately, Florida leads the nation in uninsured drivers. That can leave a seriously injured person without a way to recover fair compensation. However, if the injury victim has purchased uninsured motorist coverage, that policy may provide compensation. While this coverage is optional in Florida, it provides important protection for those who are injured by drivers who aren’t carrying liability insurance.
Consult an Experienced Florida Car Accident Lawyer
If you’ve suffered a whiplash injury or other serious injuries in a Florida car accident, speak with a local motor vehicle accident attorney right away. You may have heard that you have four years to file a car accident claim in Florida, and that is usually true. However, there are exceptions.
Even when you have plenty of time to pursue a claim, it’s to your advantage to act promptly. Shortly after the injury, it will be easier for your attorney to conduct a thorough investigation, assemble evidence, and contact witnesses. Over time, physical evidence may be lost or destroyed and it may be difficult to identify or locate witnesses. Memories will fade–including your own.
The attorneys at LJW Legal understand how important it is that you have access to accurate information and guidance after a serious injury. We offer free consultations to help you educate yourself and make good decisions about your next steps. Contact us to schedule yours right now.
