Well it is said, "the proof is in the pudding," well in NYS injury law, "the proof is always in the testing."
Remember in a Civil Action, the one going forward, the plaintiff, the one who demands damages, the one who wants financial compensation, and is filing a claim is the one who must prove their case. In a criminal case it is the opposite, the government (the prosecutor) has the burden of proof, and must move their case forward. In that situation they are seeking something (jail/punishment/restitution) and so they have the obligation of proof. Kinda like a football game, the one with the ball, who wants to score, has to move it down the field. You can't score if you are always playing defense.
YOU have to Play Offense in Accident and Injury Cases
In any accident case we must prove two main things:
1. That the defendant (s) are liable, at fault for the injuries and,
2. That these are the damages incurred as a result of the negligence of the defendant (s).
Proving one without the other is a recipe for disaster. They go hand in hand, they come yolked as a pair.
Why Nerve Damages are Serious
In many personal injury cases the more serious of conditions involve your nerves, and neurological system. The nerves basically control everything, so nerve damage creates a body disconnect. With nerve injury the brain can no longer can communicate with the body. Neural communication controls blood flow to damaged areas and their ability to fully heal. This loss of control and regulation of function can lead to a domino of bad effects. Ultimately, long term nerve injuries can become permanent. Loss of body function, and the resulting disabilities that go with those are the true human losses from an accident. Pain and suffering is more than physical. It encompasses the mental and emotional depression of not being able to move like you used to.
How do we prove your nerve damages?
Two major tests (Nerve Conduction Studies) can demonstrate and prove your nerve damages:
1. The EMG (electro-myography): This test measures the ability of (within) the muscles to contract. The brain is an electrical generator which runs the system. Anything blocking the electrical current can lead to issues in different parts of the body. Nerves travel to external muscles, skin, and internal organs. Blocks to nerve flow because of pressure on nerves leads to diseased organs. Muscles are organs, just like your kidneys and liver.
How is the test performed?
This is an invasive test. Some doctors like to say it is non-invasive but come on, they "place" (insert) electrodes into the muscles. Then the muscle is measured at rest, and at different points (phases) of contraction.
Are they (the muscles) getting the necessary brain (electrical) impulses?
Are these impulses being blocked?
Conditions such as nerve compression from carpal tunnel syndrome, cervical or lumbar disc herniation, radiculitis (nerve root), or an entrapment syndrome due to accident trauma can show a positive test result.
2. The NCV (nerve conduction velocity): This is a test that measures the speed and power at which your nerves are conducting impulses.
How is this test performed?
Electrodes are placed on your skin at different locations. The doctors will seek to test the nerves that run closest to skin.
The main question: Are your nerves conducting (communicating) impulses at a normal speed and strength?
Pressure on nerves can cause three things:
-slowing of impulses
-complete blocking of impulses
-decreased intensity of impulses (weak signals)
Weak signals or conduction is a measure of what is called amplitude.
Speed of conduction is a measure of velocity.
Do you need more than one test?
From a doctor standpoint these tests may need to be run more than once. They can monitor your progress (healing and recovery or lack thereof). Muscles that are wasting (shrinking), called atrophy or tissues of the body being neurally blocked require immediate treatment and care. The tests can also definitively rule out different conditions, and pinpoint causation. Nerve tests are a necessary part of care.
BUT, the true purpose of nerve testing is more than diagnostic to an attorney, and to your potential case.
Having these tests performed documents objectively what is going on inside of you. They demonstrate the damages from the accident. They place a quantity of damages along a time line (your chronology).
The Story of the Painter
I once represented a painter with a car accident carpal tunnel syndrome. He was a passenger in the back seat. He put up his hands (on the seat) to brace from the crash. His hands and wrist went back damaging his median nerve.
Over time the nerve testing (performed three times) showed atrophy of the muscles in his hand. Because of the nature of his employment (mostly a cash business) we could not prove the full degree of his wage loss damages. He kept poor records.
What we could prove was the actual physical damages to his median nerve, and the clear progression of his injury. He was going from bad to worse based upon the ongoing nerve testing.
Because of these nerve tests, and without surgery we were able to settle his claim against the driver that rear ended the car. Testing to link all levels and degrees of damages is just that important.
For in that end it not what you say but what you can prove that will make the difference.
Dr. Lawrence Newman
Doctor of Chiropractic
Attorney at Law
504 North Aurora Street
Ithaca, NY 14850
Legal and Medical DISCLAIMER
Remember the hiring of an attorney is a serious matter. Check out anyone you hire before hiring them. I do not win all my cases. No one wins all their cases. This blog is not legal or medical advice nor should it be a substitute for legal or medical advice. Consult with an attorney concerning any questions you may have. In addition, consult with a doctor for any and all of your medical or accident related issues.