The Impact Of Pre-Existing Injuries On Personal Injury Cases

All experienced attorneys that practice in the personal injury field are familiar with insurance companies attempting to exploit prior injuries sustained by clients. The argument often used is that the injury caused in the car wreck, tractor-trailer accident, slip and fall incident, or other personal injury case was not caused by the negligence of the person being sued, but rather, that the victim of the negligence is simply malingering and/or claiming damages for a pre-existing injury. Insurance companies subpoena health records as far back as they can hoping to find some evidence of a prior similar complaint. For example, if someone is in a car accident and hurts their back or neck, if the insurance can find any evidence anywhere that the claimant previously complained of neck or back pain, the insurance company will always contend that the prior complaint has simply remanifested itself and that the car accident, truck accident or other tort simply had no bearing on the claimant’s health.
It is frustrating in the extreme to continually run against this common defense tactic. Experienced defense counsel are experts at obfuscation. They can make it sound as if the claimant, who was the innocent victim of the negligent acts of a third party, is simply trying to make someone else pay for a pre-existing condition. This is very rarely the case in my experience and the experience of the attorneys at this firm but, nonetheless, we encounter these arguments all the time. Thus, we have to overcome them by proving that the claimant had had no prior problems for many years, typically, had not needed to seek medical advice and that their acute injuries arose on the day of the incident and continued thereafter, caused by the acts of the defendant against whom the claim is being asserted.
The law is clear that even if someone has a pre-existing injury, they are entitled to compensation for any aggravation of their prior condition. Thus, even if the client did have a prior problem with their back, if their back was re-injured and/or if their pre-existing condition was aggravated, compensation is still allowed. Nonetheless, defense attorneys and insurance companies continue to contend that innocent victims of negligence actually are not injured at all but are simply seeking compensation they are not otherwise due. These arguments are extremely frustrating for innocent victims of the negligent acts of third parties which is why it is important in this context that experienced counsel be engaged to overcome this common defense tactic. If victims are not diligent in this regard, they can be denied justice simply due to an irrelevant modern day smoke screen.