HOW CAN A PREEXISTING INJURY IMPACT MY CAR ACCIDENT CASE?
Our attorneys are continually asked what, if any, impact will a pre-existing injury have on a claim for injuries stemming from an accident. Before we delve into this topic, it is important to know what a pre-existing injury/condition is. A preexisting injury is a medical condition that the accident victim had prior to the accident occurring. Some common examples of pre-existing injuries are degenerative disc disease of the spine, prior herniated discs, prior head injuries, prior neck injuries, prior shoulder injuries, and arthritis.
If you have a pre-existing injury and an accident aggravates, worsens or exacerbates the pre-existing injury, you can claim damages for such aggravation. Stated differently, you have a claim for the difference between how you were prior to the accident, and how you are after the accident with the aggravation of the pre-existing injury. Insurance companies don’t want injured victims to know this, but if your case is taken to trial the following jury instruction is read to the jury:
“If you find that the (defendant(s)) caused a bodily injury, and that the injury resulted in [an aggravation of an existing disease or physical defect] [or] [activation of a latent disease or physical defect], you should attempt to decide what portion of (claimant’s) condition resulted from the [aggravation] [or] [activation]. If you can make that determination, then you should award only those damages resulting from the [aggravation] [or] [activation]. However, if you cannot make that determination, or if it cannot be said that the condition would have existed apart from the injury, then you should award damages for the entire condition suffered by (claimant).”
The foregoing jury instruction is helpful for injured victims that have sustained an aggravation of a pre-existing injury. The instruction can help rebut the insurance company’s argument that the existence of a pre-existing injury means that the injured victim cannot recover anything at all.
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