Bulging or herniated disc cases are hard fought by insurance defense attorneys. They will rightfully argue that bulging discs can be part of the natural degenerative process, it is part of just getting old. You point out that you never had any pain or problems with your back before the car wreck or other injuries. The insurance folks then argue, “so what, prove it.” They then offer some trivial amount like $500 at mediation and drive you to trial. They will often pay some hired gun orthopedist or neurosurgeon to come and testify that you didn’t get hurt. These hired guns will not even examine you. Instead, they already know what they are supposed to say anyway. These doctors are mouthpieces for the insurance companies that are paying them, and “he who pays the piper calls the tune.” The insurance lawyers will argue tort reform, jury bias and attack your credibility at trial. The sad part of all of this is that they often win these cases. The insurance companies don’t care whether or not you were truly hurt, only if you can prove it. So, how do you prove it?
Unfortunately, you will almost certainly need an attorney on bulging disc cases. You will need an attorney who is willing to take the case to trial. I can’t tell you how many people with bulging discs got dumped by their attorneys a few months before trial, or sometimes without even filing suit. Just last year, I had a nice lady come into my office. She had been dropped by the largest personal injury firm in North Carolina after keeping her case for almost three years. This firm had only got low offers on her case, and they wouldn’t file suit for her. Instead, the firm dropped her case. We picked it up and deposed her doctors. It took a lot of preparation, money and hard work, but the doctors rightfully linked the injury to the wreck. We then got her case settled for $275,000. This was a fair amount given her high medical bills and condition. Of course, not all cases are the same, but all bulging or herniated disc cases require a good attorney.
One of the main ways an attorney can help prove a bulging disc case is to simply depose the family doctor first. Often, the client will have some doctor he or she has seen over the years. The client may have never, or rarely, complained of back pain in the past. So, ask this doctor about it. This establishes a baseline of your condition prior to the wreck or injury. After the family doctor, depose the orthopedist or neurosurgeon who treated you for the current injury. This sounds simple, but I can’t tell you how infrequently the larger law firms depose the family doctors. It is expensive and time-consuming and requires more work. Of course, this may not always be necessary, especially if the medical records show a lot of prior complaints. Then, you may just need to acknowledge the complaints with your current doctor and explain how they have changed. The insurance company is responsible for this change only. However, if there were few prior pain complaints, the family doctor absolutely should be deposed before the actual treating expert. This helps your treating expert on causation.
Another way to help prove a bulging disc case is by using corroborating witnesses. Get a spouse, a coworker, a family member or neighbor to testify about any changes that they saw following the injury. On direct, make sure that they admit to bias. They care about the plaintiff or they wouldn’t be in court. Of course, they are still truthful. Don’t go overboard or make this testimony long. Spouses, in particular, can actually be fairly powerful witnesses. I can’t tell you how many times a plaintiff gets on the stand and doesn’t want to talk about themselves or the problems they have. They are possibly depressed and embarrassed about their weakness or injury. Instead, a spouse can talk about the changes more freely.
Whatever you do in a bulging disc case, or any case for that matter, do not exaggerate one bit. Don’t say your back was killing you at the scene if it wasn’t. Don’t say your pain was a 10, when it was a 7 in the medical records. Don’t tell your doctor it was a 30 mile per hour collision when the police report says 5 miles per hour. Often, I think that plaintiffs do this unintentionally. The wreck felt like they got hit hard, but they don’t really know the speed of the person who hit them. Even though they don’t know the speed, they tell doctors it was a high-speed wreck. Don’t guess. Right before your deposition, and again before trial, go through your medical chart thoroughly. Identify pain complaints, pain levels, descriptions of the wreck, descriptions of pain locations and do not deviate from this. It appears that some people try to guess when on the stand. For example, they are asked if they had pain at the scene and if they told the police about it. They assume they did, so they say “yes”. The problem is that the police report says they didn’t. Don’t guess. The insurance defense attorney will make you out to be a liar. Their entire cross-examination will be to try and get you to say one thing wrong. They will then argue that you can believe any witness as your pain complaints are subjective. In other words, you could have been fooling everyone and lying to your doctor. Some jurors are very suspicious of plaintiffs, and this fuels their suspicion. It often only takes one inconsistent statement on the stand to lose one of these cases.
In summary, be ready for a big fight from insurance attorneys if you have a bulging or herniated disc. Get the right personal injury attorney with experience in trial fighting these cases. This may sound like self-promotion, but it isn’t. It is an objective truth. Bad lawyers or law firms with too many cases often lose these cases or simply drop the client. Depose your family doctor, and get witnesses to trial who can testify to your condition. Finally, and most importantly, be very careful to not misspeak about your condition. With hard work and careful planning, you can get the jury to see the truth and not be fooled by insurance defense tactics.