How Pre-existing Injuries Affect Personal Injury Claims

pre-existing injury

In many injury accident cases, the injured party may face questions about prior injuries or conditions from the adjuster or attorney representing the party who injured them.  Although an injured person is not entitled to payment for preexisting injuries and conditions that were there before the accident, an injured person is entitled to compensation for pre-existing injuries and conditions that are made worse because of the accident.  These injuries may be physical or mental or a combination of both.  For the injured person, how they handle their preexisting injuries may be a positive or a negative thing for their injury claim as a whole.

 Disclose Any Prior Injuries

Once a person is involved in an accident it is imperative that they come clean with their personal injury attorney about any and all preexisting injuries that they have experienced or were still suffering from at the time of the accident.  Failure to do so could seriously hamper their chances of a fair and successful settlement to their personal injury claim.  This is even more important when the new injuries affect the same parts of the body that the old injuries did.  The entire claim for damages may be placed into jeopardy by this non-disclosure as the injured person could lose credibility and possibly face fines or counter-suits as a result.

As a strategy, it is far more effective to disclose all preexisting injuries and then work with the medical professionals in documenting how the instant accident has affected the injured person’s body.   When faced with a claimant who claims no other injuries or complaints, especially if the claimant is over 30, the opposition will become suspicious and begin to dig into the past of the claimant.  In the digital world we now live in, each person has a digital footprint and our medical and claim history is not spared scrutiny.  The injured person’s preexisting injuries and complaints could be documented by the insurance company and then used to discredit the true injuries suffered in the most recent of accidents.

You Find Your Victim “As-Is”

This is the colloquial for the legal term coined “The Egg-Shell Plaintiff”.   To summarize this legal theory you can imagine what a fist to the face would do to a normal person compared to what a fist to the face of a person with a jaw made of egg shells would do.  Just because someone is more susceptible to injury in a car accident, does not mean that they are entitled to less compensation because of the pre-existing condition.    This theory is effective in combating the defense tactics of attribution and reasonableness when dealing with soft-tissue, minor-impact cases in particular.

It is so important that the injured person explain their pre-existing condition prior to and directly after the accident to both their legal and medical teams in order to be properly treated and properly compensated for the consequences of the accident.  Insurance companies train their adjusters to pin all they can on prior injuries, to minimize financial exposure of the accident they are responsible for.  If the injured person will be upfront and candid about what they were like just before the accident, there is a greater likelihood of better medical treatment and a more reasonable, fair settlement offer.

Should an injured person with a preexisting injury not settle their case and go to trial, most states have instructions in their statutes for juries that require them, by law, to consider the injured person in this case as the liable party found them, “As-Is”

 Medical Records are EVERYTHING

There are advantages to having a pre-existing conditions when navigating an injury claim.  The most important of these is that it gives an objective, ‘hard’ look at what was actually going on in the person’s body at or near the time of the instant accident.  There is some concrete evidence to compare how someone has suffered because of their preexisting conditions.  Not all situations are like this, however, there are many cases where the injured person actually benefits from prior injury documentation.  The key is for your personal injury attorney to work with the medical providers so that the documentary presentation would be the most honest and advantageous to the present claim for damages.

The existence of medical records is also of benefit to the personal injury trial attorney as he or she now has tests and diagnostics that can be compared and discussed with their expert medical professional under direct and cross examination should the case reach a courtroom.   Should the injuries sustained have created a permanent disability, the more pre-existing medical records available for review the better.  The personal injury lawyer will know how best to use these records in trail and prior to trial in the settlement phase of a claim.

By being forthright and honest about our medical condition prior to the incident in which an injured person was re-injured, they place themselves in the good graces of the law and add to their credibility as they traverse the minefield that is insurance claims.  By the same token, those who seek to hide or deny a pre-existing condition are setting themselves up for failure, and possible sanctions as a court of law may deem appropriate for such deceit or omission.

 

 

Bighorn Staff

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