HOW DO PRE-EXISTING MEDICAL CONDITIONS
AFFECT A PERSONAL INJURY CLAIM?
July 23, 2021
Suppose you get hit by another vehicle and you re-injure your neck, which was previously injured in a car accident from years back. Can you recover compensation for your injury from the other driver, or will you be prohibited from being compensated because the injury existed before the accident?
As much as the opposing driver’s insurance adjusters may try to evade payment by claiming you already had the injury, or that the injury was not their driver’s fault, legal protections are mostly on your side. However, you’re going to need the aid of an experienced and knowledgeable personal injury attorney to fend off insurance adjusters and their tricks. You may also be better off filing a personal injury lawsuit against the at-fault driver to expand the scope of your available compensation.
If you’ve been injured in an accident in or around Houston, Texas, including the communities of Seabrook, Pasadena, Dickinson, Alvin, League City, and Clearlake, call me, Personal Injury Attorney Jose Orihuela — especially if you fear a pre-existing condition may compromise your injury claim. I will listen to your story, investigate the circumstances of your accident, explain your legal options to you, and then help you exercise your full rights to recover compensation.
WHAT ARE PRE-EXISTING CONDITIONS?
In general medical terminology, a pre-existing condition could be something like high blood pressure or high cholesterol that can contribute to adverse medical outcomes, such as a heart attack or stroke. These conditions are generally treatable with medication and lifestyle alterations.
When it comes to personal injury, these traditional types of pre-existing conditions can play a factor, but so can other injuries you previously suffered — whether from a previous accident or just a mishap at home.
HOW PRE-EXISTING INJURIES CAN BE USED AGAINST YOU
I already alluded to a prior neck injury that was followed by a subsequent neck injury, or re-injury, in another auto accident. The insurance company or the at-fault party’s attorney may try to argue that you were more prone to injury and therefore you are partly or wholly responsible. They may also claim that another pre-existing condition such as PTSD (post-traumatic stress disorder) led you to drive in a more distracted or erratic manner, contributing to the accident.
They will employ this type of argument in the hope that, under Texas’s modified comparative negligence standard, they can prove that you’re more than 50% at fault for the accident, and therefore you don’t qualify for compensation from their client.
MODIFIED COMPARATIVE NEGLIGENCE
Modified comparative negligence — sometimes called the 51% Rule — is used by insurance companies and juries to assign a portion of fault to each party in an accident.
If, for example, you’re rear-ended and suffer injuries, but one of your brake lights was malfunctioning, the court may place 20% of the fault on you. Then, any judgment or settlement you receive will be reduced by that same percentage — $100,000 can quickly become $80,000. If the court finds you to be more than 50% at fault for the accident, you are not entitled to receive any compensation.
THE EGGSHELL SKULL RULE
You are protected by the law, even if you have a pre-existing condition, by something known as the Eggshell Skull Rule. Under Texas personal injury law, the at-fault driver — or the person who negligently causes an injury by any means — is responsible for all of their victim’s injuries. It does not matter if the victim had pre-existing conditions or enhanced vulnerability to injury — the negligent party is totally responsible (but still bound by Texas’ modified comparative negligence rule above).
Consider an example: If a person has brittle bone disease, hemophilia, or another serious pre-existing condition, then a relatively minor or moderate collision could result in that individual suffering catastrophic injuries no one would normally expect. Even though the injuries are rare and unexpected, the at-fault driver is still responsible under the Eggshell Skull Rule.
RELY ON JOSE ORIHUELA, ATTORNEY AT LAW TO HELP
Even with the solid defense shield of the Eggshell Skull Rule, insurers and attorneys will still try to assign fault to you for your injuries. They may even try to get you to sign a release form so they can obtain all your medical records dating back to birth. Don’t let them. Let me handle all of their requests and deal with any individuals making demands.
Also, don’t try to state your case with the insurance claims adjusters on your own. Adjusters are professionally trained to protect their parent company’s bottom line. They are equipped with all the tools and tricks needed to get you to slip up. They may even start by asking, “How are you doing?” If you respond, “fine” or “good,” they may attempt to use that to claim you’re exaggerating your injuries, or even to claim you’re not injured at all.
Even with pre-existing conditions, if you’re injured due to the negligence of another, you have a right to pursue fair compensation. Insurance companies will pay for medical expenses and lost wages, but often only up to a cap, or even just a percentage of what your true losses total. A personal injury lawsuit can open up your compensation to include non-economic factors like pain and suffering and loss of enjoyment in life.
If you have suffered an injury and live in the greater Houston area, including the surrounding communities of Seabrook, Pasadena, Dickinson, Alvin, League City, and Clearlake — call me, Jose Orihuela, Attorney at Law, immediately. I’ll look at all the details of your unique situation and provide you with the reliable legal counsel and representation you need to pursue the justice you deserve.