Sometimes, people think they don’t have a claim if a car accident aggravates a pre-existing medical condition or injury. However, that’s not the law in Virginia—or most states.
In Virginia, the law takes a very practical view of this type of injury: You are entitled to recover for the extent of the aggravation, but you cannot recover for the pre-existing condition or injury itself.
In the model instruction that is read to the jury at trial, the principle of law is expressed this way:
If you find that the plaintiff [the injured person] had a condition
before the accident that was aggravated as a result of the accident or that the pre-existing condition made the injury they received in the
accident more severe or more difficult to treat, then if you find your
verdict for the plaintiff, the plaintiff may recover for the aggravation
and the increased severity or difficulty of the treatment but the
plaintiff is not entitled to recover for the pre-existing condition.
Insurance companies often do not tell the injured claimant about this jury instruction. This instruction is favorable to claimants and keeps the insurance company or their attorney from trying to claim that a pre-existing medical condition means that the claimant cannot recover anything.
How car accidents may impact a pre-existing condition—known or unknown
For example, suppose you were involved in an automobile accident and had muscular injuries to your lower back (usually diagnosed as a “lumbar sprain”). X-rays and MRIs may reveal that you had a hidden degenerative condition that existed before the accident.
You may have been completely unaware of this condition because it did not cause you any pain or other symptoms. In fact, it may never cause you any symptoms or problems.
Such degenerative changes can, however, make your spine less resilient and less able to withstand traumatic injury, such as in a collision; therefore, these degenerative changes may cause you to suffer more injury, for your injury to last longer, or for your injury to be less likely to heal.
The aggravation may be as minor as occasional neck or back soreness that flares up only when you are very active (e.g., doing more bending or heavy lifting than usual). This may be a nuisance or simply something that makes you careful in your activities.
What happens when you make a claim after an auto accident?
If you are injured in a car accident and make a claim, insurance companies always make a big deal out of your prior medical history and any pre-existing medical conditions. If they can get you to give a recorded statement, the insurance companies always, always ask about your prior medical history and any prior injuries or health problems.
Since neck and back injuries are the most common injuries from motor vehicle collisions, they will certainly ask you about any neck or back pain you ever had before the accident, and if you have ever been told that you have any arthritis, degenerative changes, or diseases.
If your attorney cannot get the insurance company to make a reasonable offer, and a lawsuit has to be filed, the insurance defense attorney is allowed to discover your prior medical providers and any prior medical history or treatment.
The questions the adjuster or attorney ask are designed to intimidate you and to lay the groundwork for making a low offer to settle your case. They want you to think this way: “You can’t recover for a condition you had before the accident, right, so be happy to take what we are offering.”
What if you have a lengthy medical history of injuries?
If you have a significant medical history—and, when answering questions, you are not completely forthcoming about it—then, when the adjuster or defense attorney finds out, the insurance company or defense attorney will use this to claim that you are being untruthful.
By extension, they will argue, you are probably also exaggerating your injuries. (In legal terms, you will now have a “credibility issue” as well as a “causation issue.”)
How to present the effect of the car accident on your condition
An injured claimant’s medical records might show degenerative changes, disc disease, arthritis, or other “wear and tear” conditions. These are typical for an active person and at certain ages.
Part of our job as attorneys is to effectively contrast the difference between the claimant’s life before and after the accident. We use prior medical history and prior activities to focus on the fact that the claimant’s pre-existing condition did not keep the claimant from leading a full and active life before the accident.
If you have a pre-existing condition but you didn’t hurt before the accident, and you do hurt after the accident, then that difference is the only thing that should matter. In presenting this to a jury, we often point out that a pre-existing condition that does not cause any pain or symptoms doesn’t really matter to a person—it’s pain and stiffness and soreness that matter, and that didn’t exist until after the injury.
If you were not getting any treatment before the accident for the area of the body that was injured in the collision, your records will show that you that you hadn’t been to the doctor for any complaints relating to the pre-existing condition and that you weren’t taking any prescription medication for it or receiving any treatment at all.
If you were leading an active life without any difficulties—working, playing sports, handling household chores, doing your job, etc.—then we will be able to show that this accident did indeed aggravate a pre-existing condition.
We’ll be able to show that the incident caused by the defendant (e.g., a collision, a fall, or some other cause) is the reason you have pain, stiffness, or other symptoms, and that you are limited in your activities.
What if you previously received treatment for a condition made worse by the collision?
Sometimes, an injured claimant’s pre-existing condition does cause symptoms or require treatment before an accident, but the accident aggravates their condition and makes it worse, requiring more or different treatment.
As their attorney, we have to determine how to prove our client’s aggravation. If what the doctor thinks about your injuries or how your pre-existing condition was aggravated isn’t apparent in your medical records, we may need to meet with the doctor to review the prior medical records to obtain their informed opinion.
The doctor’s focus is—hopefully—on helping you feel better and relieving your pain. The doctor may not focus on exactly how much worse your condition is compared to before the accident, or even that your present symptoms are due to an accident.
Why “causation” matters so much
When you are involved in a claim as the result of an accident caused by someone else, the doctor’s opinion on causation becomes important. To recover for your injuries and losses caused by the accident, your doctor needs to state—in writing—that, in their professional opinion, the accident aggravated your pre-existing condition.
Often, your attorney will consult with one or more of your doctors and ask them to write a letter stating their opinions. Then, your attorney will address the degree and nature of any aggravation of a pre-existing condition that you are entitled to recover.
The doctor’s opinion report, along with medical bills, are part of the package submitted to the insurance company to help them evaluate your claim and increase the chances they will—at least ultimately—make a reasonable offer to settle your claim.
What if you were actively getting treatment for the condition?
Sometimes, the medical history and records show that a claimant was actively treating a pre-existing condition before the accident.
Active treatment just prior to an accident will make it more difficult for the doctor to determine to what degree the accident may have aggravated a pre-existing condition. Sometimes, the doctor may be unable to determine if there was any real change in your pre-existing condition as a result of the accident.
To help your doctor, it is important to explain what your activities were before the accident and how they have been limited since the accident due to your aggravation. This assists your doctor to make a more thorough examination and to document those changes that have occurred since the accident.
The injury attorneys at Allen and Allen can assist you by presenting conclusive evidence through medical records, friends, and family to show your activity level prior to the accident and the extent of any treatment before the accident; and, then, after the accident occurs, how it has caused you to receive new or additional treatment because it aggravated your pre-existing condition.
You are entitled to recover for that pain and suffering and the effect on your health, in accord with the jury instruction quoted earlier. This is something that insurance companies won’t tell you.