Originally published by William K. Berenson.
Under Texas law, a driver who causes a crash must pay the other driver’s damages including medical bills, lost wages, and pain that he caused. But often people have been hurt before. With little if any evidence, insurance companies will argue that someone’s damages were not caused by this collision but from a preexisting injury from a prior crash or event to get out of paying what the case is worth. That is not fair. Any good personal injury lawyer knows how to fight this trick so that his client is compensated fairly.
What is a preexisting injury?
A preexisting injury or condition means that a person had sustained the same injury to the same part of his body in the past. This is most often used in connection with spine injuries to the neck and back but can describe any part of the body.
Just because someone had previously been hurt before is not the end of the story. We hear this all the time and refuse to accept this argument at face value. We obtain more information to find out what the facts are and fight this usually bogus argument.
One reason the claim is specious is that it is often difficult to know precisely where the old injury was. For example, people often feel pain in their neck after being in a car crash, especially when they are rear ended, and almost always when this happens at high speed.
But the neck has seven cervical vertebrae and a large area with a complicated netword of intervertebral discs, nerve roots, ligaments, tendons, and muscles. For starters, we need to find out exactly where in your neck you are now feeling pain versus where was the pain before.
We have seen many clients who may have mentioned to the hospital intake that they experienced neck pain in the past. But when we obtained their medical records we were able to prove that
- the previous pain was only mild,
- it was completely different,
- they didn’t feel pain, only tightness,
- it was in a different part of their neck,
- it happened 10 or 20 years ago,
- their doctor had cleared them for full work releases and said they were back to normal,
- they had not sought any medical treatment since that time and were pain-free.
In other words, there was not a valid preexisting injury.
The eggshell doctrine
Complicating this issue is that there may have been a preexisting injury but the new crash aggravated it.
Even for the sake of argument that you had previously injured the exact same part of your body, Texas law holds that if your prior injury was aggravated by the car or truck wreck, you are entitled to compensation for the increase in your pain and for the medical bills to treat that.
Under the eggshell doctrine, a victim is considered as he or she was on the date of the crash. The negligent driver takes the innocent driver as he finds them and if he or she was more fragile or injured, they are entitled to be compensated for all of their injuries. just as if they were a fragile egg. If the injured person is 80 or 90 years old, the defendant driver can’t get off the hook.
How to avoid the problem of being accused of having a preexisting injury
Outside of not getting hurt, there are other ways to avoid this argument.
1. Tell your doctor everything — where the pain was, how long it lasted, how it limited your movement and lifestyle, and if and when it ended. If prior testing like MRIs was conducted, we can then obtain the original films and reports to show the differences. We can compare a new MRI to the old one and contrast the differences.
2. Tell your personal injury attorney everything about any previous injuries. That enables him to research this information at the beginning of the claim before it is too late. There is no way to effectively hide this, or any reason to do so. If you had settled with an insurance company, that data was reported to a central computer data base, which is one of the first things that an insurance company looks at when evaluating the claim.
3. We will contact the current medical providers and ask them if the injury was exaccerbated, and if so, by how much. We can address the topic up front with the insurance company so that you do not lose credibility. We have seen companies deny cases outright for this reason and a lawsuit has to be filed immediately.
We fight these cases tooth and nail. For example, we have a new claim where the insurance company’s attorney is claiming that our client might have had some degenerative aging in the cervical spine and that is the reason, not the 60 mile per hour crash, that caused her to have major fusion to her neck. We are ordering her prior medical records and then will file a lawsuit.
We just settled a commercial vehicle lawsuit was our client was accused of having a preexisting injury and others for the maximum amounts available, even where our clients have had surgery to their necks or backs in the past.
We can help you
If you have been injured in a car, truck, 18-wheeler, motorcycle, or pedestrian crash, please contact us so we can help you. We have represented thousands of victims of these collisions and fought to obtain the compensation our clients deserved.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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