How to Deal With “Pre-Existing” Injuries or Ailments

If you are injured in an accident, it is very possible that it may not be the first injury you’ve ever sustained. As we go throughout our lives, and our body ages, we may well have medical problems, whether they are related or not to negligence. But those prior injuries or conditions can cause complex issues in a personal injury case.

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The Need to Show Causation

One way that defense attorneys who represent negligent parties try to defend cases is on the basis of causation. Even if someone is negligent, it must still be demonstrated that their negligence actually caused your injuries.

Practically, many defense attorneys will argue that whatever pain, injury or disability that you say you have from an accident actually “pre-exists” the accident, and thus is not caused by it. For example, if you have suffered from migraines your whole life, and someone drops a piano on your head, and your only injuries are the same migraines you had before, the defendant will argue there is a lack of causation, barring you from recovery.

This is a very easy defense to raise, simply because, as we go throughout our lives, we will surely have some sort of injury or ailment. Many of us live with routine daily aches and pains. Perhaps you’ve had a work injury, or an injury playing sports, or just have pains from the natural aging process. Almost nobody goes through life having no pain or injury at all, and that’s certainly true for older clients.

Defeating the Pre-Existing Injury Defense

Fortunately, a good victim or accident attorney knows how to defeat these kinds of defenses.

One way is simply using medical evidence to show that whatever injury or ailment you had before the accident is different than what you have now after the accident.

Back problems commonly fall into this category. You may have had back pain before and after your accident. However, before your accident you may have had a muscle strain, but afterwards, you may have a herniated disc. To you they may feel similar. But objectively, they are very different.

The law also allows you to recover for exacerbation or aggravation of pre-existing injuries. This is given as a jury instruction at the conclusion of your case. This means that if an accident made your pre-existing condition worse, you still have a right to recover.

Often, this is demonstrated subjectively. For example, you may have had a herniated disc that you were living just fine with before, but after the accident you’re in traction and need therapy.

Again, medical experts will be used to show exacerbations of prior injuries, but your medical treatment frequency is also good evidence.

If you had a bad shoulder that you saw a doctor once a year for beforehand, and now you’ve had 10 visits, therapy, and a surgical consult, the increased level of treatment is evidence that the defendant has exacerbated an injury.

Don’t let others tell you that you don’t have a right to recover just because of your medical history. Find attorneys who understand how to deal with this common defense. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury or malpractice case.

Photo Credit: Andrea Marutti via Compfight cc

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