What happens if you get injured in a traffic collision and a pre-existing condition that you had, such as a slipped disc, flares up? Does this reduce the value of your claim? Does such an injury even count as a damage caused in the crash? What if you are an elderly person, and being rear-ended at low speed causes you serious pain and disability, but you fear that the at-fault driver will argue that such a low-speed crash would not have injured you had it been for your advanced age?
Thankfully, the prior physical condition of a plaintiff is not taken into account when compiling damages in a personal injury claim. Whatever injuries or pain the event caused the plaintiff, regardless of pre-existing conditions, are the responsibility of the negligent party to compensate.
According to Cornell Law, the Eggshell Skull Rule “makes a defendant liable for the plaintiff’s unforeseeable and uncommon reactions” caused by the incident or collision. The defendant is “liable for any injury that is magnified by the plaintiff’s peculiar characteristics.” For example, let us assume that the plaintiff already had a broken leg in a cast that was half-heald.
They were walking across the street on crutches when they got hit by a distracted driver, but only at a few miles per hour. The victim’s leg is re-broken as a result, and the month of healing that they had gone through evaporated in a second. In normal circumstances, such a low-impact collision would not have even knocked over or bruised a person with a fully healthy leg. In this case, the driver would still be liable for compensating the medical bills, pain and suffering, lost wages, and potential long term disability of the victim.
Victims of traffic collisions are often heavily questioned by the defendant’s insurance company when it comes to pre-existing conditions. The defendant’s attorney may go so far as to request an Independent Medical Examiner (IME), in which a doctor of their choosing pours through your medical records and (sometimes) essentially interrogates you about the cause of the crash and the severity of your injuries. These “independent” examinations are hardly that. The doctors chosen have a financial incentive to side with the insurance company because they get paid to do this work.
Doctors who come to favorable decisions about the plaintiff’s injuries are more likely to get hired by the insurance company in the future. Moreover, IMEs are often simply incompetent, according to studies and the Center for Justice and Democracy. Think about it: why would a doctor with a successful practice go out looking for additional work in the insurance field? It is not uncommon for an IME to argue that the injuries you are dealing with are pre-existing, and were not caused or even exacerbated by the collision, and be heavily biased against you.
If your claim is being devalued because the negligent party is arguing that your condition was pre-existing, you need to fight back. Do not hesitate to contact our experienced San Jose car accident attorneys for help here at the Solution Now Law Firm.
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