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Will a pre-existing injury affect my auto accident claim?
For example, if you suffered a head injury two years ago in another accident, whether you have fully recovered or not, and then you suffer a head injury in an auto accident today, the insurance company might attempt to deny or limit your claim based on the preexisting injury.
Will they be successful?
You are entitled to full and fair compensation for all injuries that you suffer in an auto accident – including the reinjuring or exacerbation of pre-existing injuries.
Because insurance companies will seize on any excuse to deny or limit your claim, your auto accident attorney at Axelrod and Associates will help you to document your pre-existing injury, document your current injuries, and present medical testimony to establish that the accident caused your current injuries.
A pre-existing injury is any injury that you suffered in the past that is aggravated or reinjured by your car accident.
The driver who is responsible for the accident is liable for all injuries that you suffer that were caused by the accident – including when there are pre-existing injuries.
This may seem obvious, but it can become an issue in your case because the insurance company will be looking for any way to save money by either completely denying your claim or attempting to limit your claim based on pre-existing injuries.
If you break your arm in a snow-skiing accident, and then you have a minor auto accident two weeks later that does not re-hurt your arm, then the other driver is not responsible for your broken arm.
On the other hand, if your car crash re-breaks your arm or causes the injury to worsen, the other driver is responsible for the damage. But you can bet the other driver’s insurance company will claim that there was no aggravation to the injury, the damage solely resulted from the skiing accident, and you are lying about the extent of damage from the car crash…
You, the plaintiff, have the burden of proof which means you must prove both liability – the other driver caused the accident – and causation – your injury was proximately caused by the accident. If you have a pre-existing injury, you also have the burden of proving what part of your injury was proximately caused by this accident.
How can you ensure that the insurance company does not deny your claim based on a pre-existing injury?
First, tell your attorney about the pre-existing injury so that they can document both the prior injury and how your current auto accident affected it.
In the discovery phase of your car wreck case, you will have to disclose not only your medical records from the car wreck but also any medical records that are related to pre-existing injuries that the insurance company could use to limit your claim.
Be sure to tell your car wreck lawyer on the Axelrod team about any prior injuries, so that we can gather the right medical records to document the extent of the prior injury and so that we can begin documenting the effect that the car wreck had on that injury – whether it was reinjured or exacerbated by the crash, we have the burden of proof to show that your current injuries were not caused by a past accident.
A pre-existing injury should not affect your ability to recover damages that were caused by your auto accident, but you will need to document the extent of the pre-existing injury and how the crash affected it.
The “eggshell plaintiff” rule means that any defendant in any civil case must “take the plaintiff as they find them.”
If you are more susceptible to injury for some reason, the defendant does not catch a break based on that. If you have a pre-existing injury that the defendant reinjuries or aggravates because of their negligence, the defendant does not catch a break based on that, either.
It’s covered by the “but for test” for causation: But for the defendant’s negligence, you would not have suffered the injury.
The insurance company for the other driver will often attempt to obtain all your past medical records – in most cases, however, they are not entitled to all medical records. Your car wreck lawyer on the Axelrod team will provide only relevant medical records that relate to the claims and defenses for the current accident which may include pre-existing injuries if the same body part was reinjured in the crash.
Your current medical provider will need to know about the prior injury as well. They will need to document not only your current injury, but they should also document how the current injury affected any previous injuries – in other words, where does the old injury end and where does the current injury begin?
Careful documentation of both current and pre-existing injuries in your medical records and expert medical testimony may be critical to establishing damages in your case when the other driver’s insurance company is attempting to “low ball” or deny your claim.
Pre-existing injuries should not affect your auto accident claim – when the other driver was negligent, you are entitled to recover damages for all injuries that were proximately caused by the accident, including any reinjury or aggravation of preexisting injuries.
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