The Truth about Herniated Discs in Personal Injury Cases

Often, juries, defense counsel, and insurance companies underappreciate the significance of soft tissue injuries, such as herniated discs. To the injured individual, a herniated disc can go unnoticed or can manifest as excruciating and debilitating pain, only repairable by surgery. Nobody understands better than the person with herniated discs the impact they have on your life and ability to perform day-to-day activities. The subjective nature, coupled with the wide variety of symptoms, may make it difficult to assess a case. A strong attorney advocating on your behalf can make a difference in the outcome of your personal injury case.

What are herniated discs?

Discs are the soft cartilage in between each vertebra in the spine. When discs become herniated, part of the soft cartilage protrudes and moves out of place. This can cause pain, numbness, weakness, in the back and neck, as well as other areas of the body. Disc herniations can be caused by degeneration or impact injuries, for instance, a car accident or trip and fall. Herniated discs may heal on their own or with physical therapy, or they can require surgical repair, depending on their location, severity, and the symptoms they cause. Imaging, such as an MRI or CT scan can detect whether a herniated disc is present. Imaging is important to aid in proving damages in personal injury cases involving soft tissue claims.

Are herniated and bulging discs “serious injuries”?

A bulging disc may constitute a serious injury in New York, if the plaintiff (person who starts the lawsuit) has objective proof of the extent and duration of the damage. [Sidebar: in auto accidents in New York, the plaintiff must sustain a serious injury (as defined by the law) to have a case. Other types of personal injury cases, such as trip and falls, do not require serious injuries- however, the more serious the injuries, the more a case is worth.] Herniated discs or bulges, without more, do not constitute a serious injury in New York courts. This is because herniated discs often result from the natural aging process, genetics, or repetitive strain. For a plaintiff to recover damages for their injuries in New York, they have to endure what New York State considers a “serious injury,” which is further defined and explained in my blog “Serious Injuries After a Motor Vehicle Accident,” found at the following link: Serious Injuries After a Motor Vehicle Accident – Tocci Law .  

Bulging or herniated discs may constitute a serious injury if they have been medically diagnosed and because of those herniations, you have not been able to perform “all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.” This means that for at least 90 days in the first six (6) months following an auto accident. While non-auto accident personal injury cases, for example, trip and falls, slip and falls, dog bites, and assaults, do not apply this “serious injury threshold,” it is still important to prove the full extent of your injuries and the severity, as any settlement, award, or verdict for personal injuries will be based upon the seriousness of the injuries sustained. This is why it is especially important to seek medical treatment directly after your accident, so that it is easy to determine that your injury was a direct result from the accident, and the date of injury has been recorded with a medical provider.  

Therefore, in any personal injury case, the plaintiff must have expert evidence showing that they are injured. Complaints of pain alone are not enough to prove serious injuries. Documentation accepted previously by the courts have been:

  • positive findings on an MRI or CT and a physical examination
  • significant and specified limitations in range of motion
  • positive finding on straight-leg raising and nerve conduction tests
  • cervical and lumbar radiculopathy, persisting restriction in motion, supported by positive EMG results
  • positive findings on X-rays
  • positive cervical compression testing and fracture of internal fixation rods
  • properly detected and identified muscle spasms ositive Milgram, Valsalva, Minor’s Sit and Rise, bilateral Schepelman and Bechterew, Adams, Linders, Amoss, and bilateral Kemp Jackson and Soto Hall chiropractic tests
  • elevated left shoulder and right head tilt on postural analysis.

It is no secret that these types of injuries are painful and discomforting, sometimes resulting in numbness, tingling, weakness, and changes in your reflexes, however, unless you have been treated with epidural injections or other forms of surgery, New York State may fail to recognize conservative treatments as indication of a serious injury. Therefore, it is crucial to have an attorney who is familiar with the diagnosis and able to advocate towards the most successful outcome based upon your specific case scenario.

Why you need a personal injury attorney, not an attorney who practices personal injury:

Soft tissue injuries are universally undervalued by everyone except the plaintiff. As an attorney, it is our job to fully exhibit how detrimental our clients’ injuries are and how their lives have been negatively affected. This is done through preservation of evidence, discovery, and negotiation. At Tocci Law, we understand the tactics employed by insurance adjusters and are equipped to counteract them, ensuring our clients are not being taken advantage of during negotiations and that we are able to access the highest value for our clients’ injuries. As personal injury attorneys who exclusively focus on these types of cases, we possess in-depth knowledge of the intricacies and nuances of personal injury law. This expertise can be a game-changer when building a strong case tailored to your specific circumstances. If you would like to discuss your unique circumstances and injuries, please contact our office for a complimentary case evaluation (631) 343-7676 or