How Preexisting Injuries Can Affect Your Current Personal Injury Claim

After you file an injury claim, you may face opposition from the defendant's insurance company based on the fact that you have preexisting injuries. They may try to argue that your "new" injuries are just an aggravation of your preexisting injuries, and consequently offer you a minimal settlement.

You don't have to accept that. You deserve full and fair compensation for your injuries, whether they're an aggravation of prior injuries, or new and separate injuries. This applies to traffic accidents, slip and falls, dog bites, and other injury incidents.

To succeed in getting fair compensation for your new injuries, you will need to prove the nature of your injuries as well as the at-fault party's liability.

Proof of New Injuries vs. Past Injuries

Whether you've aggravated preexisting injuries, or sustained completely new and separate injuries, you need to show proof – and the best proof is medical records. Have your doctor provide his or her professional medical opinion in the form of a written narrative.

The narrative should include your doctor's diagnosis and prognosis of your current injuries, as they relate to your prior injuries, in addition to details on how, why and when your injuries occurred. Even your doctor's reasons for ordering diagnostic tests (X-rays, MRIs, CAT scans, etc.) can go a long way in helping prove your claim.

Proving Liability

Liability is the most important element of any and all personal injury cases. If you can't prove the other party's liability, you have no claim. Although state law varies in the specific elements needed to establish liability, the general requirements are:

  • The defendant owed you a duty of care
  • The defendant breached that duty by acting in a negligent manner
  • Their negligence directly contributed to your harm or injuries

Proving liability requires strong evidence. There are several reliable ways of producing credible evidence. They include:

  • Photographs
  • Witness statements
  • Police reports
  • Medical records

Full Disclosure

Injuries can happen at any moment. We cannot predict when an accident will happen or how serious it will be. Sometimes, a newly acquired injury overlaps a prior injury. If you file a claim for new injuries, you're better off disclosing your preexisting injuries to the adjuster at the start of your claim.

Adjusters are well-trained and know where to look for information that could possibly discredit your claim. She or he most likely will learn about your prior injuries, whether you decide to tell her or not. Don't put your claim in jeopardy – tell the adjuster about all of your prior injuries. Otherwise, you may get blindsided at your deposition when asked why you failed to disclose your past injuries. If that happens, your credibility – and your claim – may be diminished.

What Is the "Eggshell Plaintiff" Legal Concept in California?

Under this doctrine, individuals with prior injuries or preexisting medical conditions are considered an "eggshell" – fragile and more vulnerable to injury. As follows, the jury is given an instruction, CACI 3927, which states:

"[Name of plaintiff] is not entitled to damages for any physical or emotional condition that [he/she] had before [name of defendant]'s conduct occurred. However, if [name of plaintiff] had a physical or emotional condition that was made worse by [name of defendant]'s wrongful conduct, you must award damages that will reasonably and fairly compensation [him/her] for the effect on that condition."

In other words, a plaintiff may not collect damages for any prior conditions, but only for the worsening of those conditions.

Equip Your Attorney for Battle

If you want to successfully fight against the insurance company's efforts to reduce your claim, you must share with your attorney everything you can remember about your preexisting condition, including the following information:

  • When the accident occurred or when you discovered your condition
  • What medical providers provided you treatment
  • How long treatment took
  • Whether you took time off work during your recovery
  • Whether there was ever a surgery recommendation
  • Whether you had an MRI
  • Whether you completely recovered before the recent accident

The more information you can provide your attorney, the better he or she will be able to assess your damages. Consult with an experienced personal injury lawyers ASAP, if you haven't already.

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