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Can a pre-existing condition affect a personal injury claim?

Posted in Car Accidents,Workplace Injuries on October 2, 2020

Pre-existing conditions can range from a propensity to suffer bronchitis, to a range of back and nerve issues. When you are involved in a car accident, suffer an injury at work, or suffer a side effect from a prescription drug, one of the tactics an insurer may use to minimize your claim is to show you had a problem prior to the new injury. However, there is a doctrine in personal injury cases which is known as the “eggshell skull rule” which states in part “If the defendant commits a tort against the plaintiff without a complete defense, the defendant becomes liable for any injury that is magnified by the plaintiff’s peculiar characteristics.” How this may impact your claim depends on a number of factors.

Disclosing Pre-Existing Conditions to Legal Counsel

When you initially have a consultation with a personal injury lawyer about your case, you should voluntarily disclose any pre-existing medical or physical conditions which could potentially come up during a personal injury case. The reason for this is simple – the more your attorney knows, the better than can represent your case. Your attorney will access your prior medical records and work on a strategy to show that if not for the new injury you suffered, you would not be in pain.

When you do not disclose any pre-existing injury or problem to your attorney, you can count on the insurance company to use that information to discredit your claim. Remember, the insurance company has a team of attorneys who are working on their behalf — their goal is to make sure the insurer “saves” money by paying out as little as possible in claims.

Keep in mind, shortly following your accident, you will most likely be asked to provide a medical release form. Before you fill out the form, speak with your lawyer. This is important because while the insurance company should have access to the records about your current injury, they are not always entitled to access to your prior medical records. Generally, the reason for looking at these records is to discount your current injury.

Relationship Between Prior Injuries and Current Injury

A pre-existing condition does not mean you are unable to seek damages for a new injury. Here is an example: Let’s assume for a moment you have had ongoing, but minor issues with your back. Now let’s assume you are involved in a car accident and you file a claim with the responsible party’s insurance company. There is a high chance the insurer will have obtained your medical records and will claim your injury was tied to the prior challenges you were already dealing with, and not the result of a “new” injury. This is one of the primary reasons you need a car accident attorney who is working on your behalf. Your lawyer will invoke the “eggshell skull rule” to point out while you were previously having occasional treatments for back problems, your new injury has caused additional damage for which you deserve compensation.

Dangers of Non-Disclosure and Pre-Existing Conditions

Because of the chance for an insurer to use a pre-existing condition against you when mounting a defense, denying a claim, or reducing the potential settlement, you must get immediate medical attention following an accident. It is vitally important for your injuries to be fully documented. While a victim may think they have no right to seek compensation for an injury which exacerbates a pre-existing condition, this is not true. You have the right to file a claim and hold the responsible party accountable for their actions.

When a car accident victim, or any personal injury victim, fails to disclose their pre-existing condition up front, there are numerous problems. First, there is a high likelihood the lawyer or insurer for the responsible party will obtain this information. If you have failed to share this information with your attorney, they will be unprepared for the issues which can arise from disclosing it later. Keep in mind, if you opt to take a personal injury claim to court and you have not disclosed your prior condition, the information will be used to discredit you. This would be harmful to your claim.

Working with a Personal Injury Attorney

You should always remember insurance company adjusters and those who represent the insurer are not there to protect you. Their goal is to protect the insurer, so they do not have to pay out as much in claims. Remember, insurers make money from drivers and others who pay premiums, and they lose money when they pay claims. This means they have a vested interest in paying out as little as possible. Too often, accident victims fail to seek legal help because of various factors. Some of these include:

  • Pre-existing conditions – when you suffer any type of injury as a result of someone’s negligence, you have to know what rights you have and what financial responsibility the at-fault person may have. Only an attorney can help you understand your rights.
  • Cost of an attorney – victims of personal injury often believe they cannot afford legal help because they are out of work due to their injuries. However, personal injury firms work on a contingency basis. This means unless your attorney is able to secure a settlement on your behalf, they do not collect legal fees.
  • Insurance company made a fast offer – several victims are thrilled to learn the insurance company has made a fast offer. After all, when you are out of work recovering from an injury, this can seem like a lifeline. What you should know is if the insurer made a fast offer, they believe this is the best way to avoid further liability.

While you have two years following an injury to file a personal injury lawsuit in Georgia, the sooner you speak with a lawyer the better. Victims should be fully aware of the rights they have and before they sign anything provided by an insurance company it should be reviewed. What may appear to be a “great settlement” offer may be little more than the insurer attempting to avoid future liability for time lost from work and future medical bills. Contact a personal injury lawyer today if you have suffered an injury due to someone’s negligence to learn about your options before you decide what is best for you and your family.