Most personal injury clients come to their attorney with a history of some prior injury or pre-existing medical condition. The question is: how will the pre-existing injury affect the new claim?
Most personal injury clients come to their attorney with a history of some prior injury or pre-existing medical condition. It often involves prior neck pain, back pain, or headaches. The prior accident may have happened long ago and the client has long since recovered. Or the client may still be coping with residual pain from the prior injury when the new accident happens. The question is: how will the pre-existing injury affect the new claim?
The Insurance Company Will Use Your Prior Medical Condition against You
In order to get a discount on what they have to pay you, the at-fault party’s insurance carrier has an arsenal of defenses they will attempt to raise. Their favorite defense is to argue that the injury you now claim was pre-existing and not due to the new accident.
In pursuit of evidence to support their theory, the insurance company will ask you to sign a medical authorization, which gives them unfettered access to your entire medical history. That is why all personal injury clients should never sign an insurance company’s medical authorization. It is an invasion of your right to privacy. You will be handing over on a silver platter evidence they will use against you.
California Law Considers You an “Eggshell”
If you did have a prior injury, the reality is that you are now more vulnerable to new injury. Under the law, you are considered an “eggshell” – thin-skinned and more susceptible to injury.
Under California law, the insurance company must pay for any and all aggravation of your pre-existing medical condition. The jury will be read a jury instruction, CACI 3927, which states:
“Plaintiff is not entitled to damages for any physical or emotional condition that he/she had before defendant’s conduct occurred. However, if plaintiff had a physical or emotional condition that was made worse by defendant’s wrongful conduct, you must award damages that will reasonably and fairly compensate him/her for the effect on that condition.”
Equip Your Attorney for Battle - Tell Your Lawyer Everything about Your Prior Injury
You should share with your attorney everything that you can remember about the prior injury. If the prior injury resulted from an accident, when did the accident happen? What medical providers did you treat with? How long did you treat? Was there ever a surgery recommendation? Did you have an MRI? Had you completely recovered before the new accident? Did your prior injury require you to take time off work? For how long? Most important: when was the last time before the new accident that you treated, and when was the last time before the new accident that you had pain?
Your attorney will need to assess and quantify how much the new accident aggravated your prior injury.
Don’t let the insurance company off the hook just because you had a pre-existing injury. You are entitled to full compensation for any aggravation of a pre-existing condition.
If you had a prior injury, it is imperative that you consult with a personal injury lawyer who has experience handling aggravation of pre-existing injury cases.
