A pre-existing injury can affect the value of your personal injury claim in different ways. Depending on the circumstances: (i) it can make your claim more difficult to win; (ii) it can render it more difficult to assess the value of your claim; (iii) it can lower the value of your claim; and (iv) it can increase the value of your claim.
Most types of personal injury claims are based on the following four elements:
A pre-existing injury can alter the value of your claim. Depending on how your pre-existing condition relates to your new injuries, the value of your claim could rise or fall, and the difference between the two outcomes is based on a legal subtlety that is a bit difficult to understand. If you have a pre-existing condition that may be related to your new injury, you need to consult with a lawyer before pursuing your claim.
A pre-existing injury can increase the value of a personal injury claim, for example, if the new injury exacerbated the plaintiff’s pre-existing condition in a manner that multiplied the effects of the pre-existing injury.
Although the original effects of the pre-existing injury will not be included in the damages calculation, the defendant will be held fully liable for the multiplication of the effects of the second injury by the pre-existing injury. This concept is known as the “eggshell skull rule,” and it is widely accepted legal doctrine in Connecticut as well as elsewhere. A defendant, if proven liable for the injury, cannot lessen its value by pleading ignorance of pre-existing vulnerability.
The phenomenon of the second-impact syndrome (SIS) can illustrate one way in which a pre-existing injury can enhance the value of a personal injury claim. SIS occurs when the brain swells rapidly after a second concussion occurs before the symptoms of the first one have subsided.
The second impact could occur a few minutes or even a few weeks after the first impact. The more serious the first impact, the more vulnerable the victim will remain for a longer period of time. The main dangers of SIS are (i) even a mild second concussion can trigger SIS, and (ii) the consequences of SIS are serious and very often fatal.
Mark is a college football player who suffers a concussion in a football game. A week later he is involved in a car accident caused by a negligent driver. He suffers a second, relatively mild concussion in the car accident, but suffers permanent disability from it because he still had not recovered from his first concussion. Mark then files a personal injury lawsuit against the negligent driver.
The defendant’s lawyer notes that, if the first concussion had not occurred, Mark would not have been seriously injured and he would not be demanding nearly as much in damages. The defendant’s lawyer suggests that, since the defendant had no way of knowing that Mark had suffered a previous concussion, the court should treat Mark’s second concussion as if it had been the first concussion and award lower damages accordingly.
This argument is unlikely to carry any weight with the court. Even though the defendant had no way of knowing about Mark’s pre-existing vulnerability, he will still be held liable for all of Mark’s actual damages under the “eggshell skull plaintiff” doctrine. Because this argument will probably curry no weight in court, it is unlikely to carry weight in settlement negotiations either.
When someone with a pre-existing condition suffers a new injury that exacerbates that condition, it must be determined which portion of the victim’s damages are attributable to the new injury and which portion is attributable to the pre-existing condition. The victim should recover only that portion of his damages that are attributable to the new injury.
The problem is that it is not always clear how these damages should be apportioned. Normally, it takes expert medical testimony to make this determination, and each side is likely to present their own experts. A settlement is usually reached based on how each side anticipates a courtroom battle would go.
Insurance companies are for-profit businesses, not “good neighbors.” It is in the insurance company’s financial interests to minimize the value of a personal injury claim or deny it altogether. It is for this reason that insurance adjusters will try to use the fact of your pre-existing condition against you. Below is a classic example of how that might be done.
Joe is a construction worker whose job requires him to perform a lot of heavy lifting, resulting in chronic back problems that go back several years. Joe normally sees a chiropractor three times a week. After his back is re-injured in a truck accident caused by another driver, however, Joe increases his chiropractor visits to five times a week and files a third-party claim against the at-fault driver’s insurance company.
The insurance company disputes his claim by noting that:
The insurance company’s refutation of Joe’s claim should carry a fair amount of weight with a court. Joe might lose his claim altogether, or he might have to settle for lesser damages than he is asking for.
Once you realize how a pre-existing condition can be used against you to deny or minimize the value of your claim, you might be tempted to “forget” a pre-existing condition by failing to mention it to your lawyer or by dishonestly minimizing its significance. You should definitely resist this temptation. Instead, select a good lawyer, tell your lawyer everything, and let the chips fall where they may.
The reason for this, beyond the obvious ethical implications, is that anything less than total candor about your pre-existing condition has the potential to kill your claim all by itself. The insurance company is going to conduct an investigation, and the larger your claim, the more extensive their investigation is going to be.
In other words, the insurance company is likely to discover your pre-existing condition even if you fail to mention it. Once it does, it can use your failure to mention it to destroy your credibility. Without credibility, it will be difficult for you to maintain a claim for any damages at all. Be honest with your lawyer, discuss the matter with him or her, and discuss strategies for dealing with a pre-existing condition that, for all you know, might even increase the value of your claim.
If you have suffered a personal injury that you believe may have been someone else’s fault – with or without a pre-existing condition – keep in mind that these cases can get legally and technically complex. Indeed, the larger the value of your claim, the more technically complex it is likely to be, and the greater will be your need for the professional legal assistance that Berkowitz Hanna offers.
Call Berkowitz Hanna today or simply contact us online for a free initial consultation. Initial consultations are free of charge and you will never owe us anything, ever, unless we win your case.