Two more common wannabe bad facts are not going to the doctor right away after the crash, and not having surgery once it is recommended. Both are being tendered to suggest your client is not hurt. Neither add up to that conclusion. When we look at them through the lens of unbiased eyes and consider the circumstances, it is clear those things are not problems. Certainly, they are not reasons to put cases in a discount bin, or avoid trial. Remember, circumstances matter.
As for not going to the doctor right away, the circumstances that set the record straight are the nature of the injury and the demands of life. If your client shattered her femur, not going to the doctor for two weeks would suggest it didn’t happen in the crash. That kind of injury is unbearable. A herniated disk isn’t unbearable. It presents similar to a sprain/ strain. It’s like waking up with a crick in the neck/ back after sleeping wrong. It aches, it throbs, it feels stiff and tender. That is why defense doctors always call it a sprain/ strain. The fact they present alike provides a place for defense doctors to hide the seriousness of the injury. When your client does go to the ER, the injury is almost always diagnosed as a sprain/ strain. The reason is, without an MRI, the diagnosis of herniated disk can’t be made. MRIs aren’t ordered in ERs unless the person is in immediate danger. Herniations are not life and death situations; they are treated in doctors’ offices, not emergency rooms.
That same thought process explains why clients often don’t go to the ER for what feels like a sprain/strain. It’s not unbearable. They think it will go away in a few days or a week like that crick from sleeping wrong. They know going to the ER will be a long, frustrating, and expensive ordeal. They have pressing responsibilities, such as picking up the kids, getting to work, getting the groceries home before cold stuff melts. Their car drives fine, it just has a dent, so they can get where they’re going as soon as the police are done with paperwork. Making a non emergency doctor’s appointment takes time and costs money too. There won’t be an opening for a week or more. By then hopefully the discomfort will be gone.
Under those circumstances, does not going to ER or doctor right away add up to not being hurt? Of course not. The pain is bearable and not scary like chest pain, gushing blood, or not being able to walk. When people do go to the ER in herniated disc cases, it is usually as much about being rattled by the crash, as being worried about the throbbing.
Now let’s do the same process for clients who choose not to have surgery after it is recommended. Does that mean they must not really be hurt? Not by a long shot, not under these circumstances. Herniations aren’t like cancer, cut it out or die. It is elective surgery. It is surgery that can be put off as long as the person can handle the pain. If the pain is not currently unbearable, it is reasonable to hold off surgery. This is serious surgery. There is a real risk of paralysis. The failure rate is high. It may not help. It may make things worse. Waiting is an option, it won’t be too late to do surgery down the line. The higher someone’s threshold for pain, the more likely they will say “no” for now to surgery. Their level of activity may be a
factor. Someone who is highly active may be more likely to bite the bullet and have surgery now. Their tolerance for interference is less. Someone who is less active may be more likely to live with it because the level of interference is less.
Any way you slice it, your client should not have to make the choice between surgery or handling the pain. Having to make that choice sure as heck doesn’t mean she isn’t hurt, it’s evidence of the suffering that was thrust into their life unnaturally. Today it may be interfering more with the experience of doing than with the actual doing, but this is as good as it’s going to get. It will only get worse with time, as the natural aging process overlays on top of those damaged links in her spine. Choosing to put surgery off for now doesn’t mean she won’t have surgery in the future. If we don’t present the cost of future surgery to you, the jury, you can’t consider it. It is our job to present the evidence to you. You have an important job to do. We do too, which is to present the evidence that allows you to do what you think is right and keep your options open. Just remember, this is a verdict for all time. We don’t come back in 10, 20, 30 years and do an update.