Depending on the age of my clients, they almost always have a pre-existing condition relating to their neck or back, especially if they are older. They may have been involved in prior accidents or they simply have a degenerative chronic condition for which they received medical treatment including MRI studies, physical therapy, epidural injections and even surgery. The fact that a client has a pre-existing condition to the same body part that is injured in an accident should not serve as a roadblock to a successful financial recovery for pain and suffering arising from the accident. Under the law, plaintiffs are entitled to be compensated for an aggravation of a pre-existing condition. Accordingly, plaintiffs will need to show that the pre-existing condition was not causing any symptomology at the time of the accident and/or if it was causing symptomology at the time of the accident, the accident increased the symptomology to a higher level of pain.
It is important to disclose all pre-existing medical conditions, and in failing to do so you will sabotage your own case. Do not think that an insurance company or their attorneys will not find out about your pre-existing conditions, especially if they are related to a prior accident. I assure you that they will. Accordingly, here are some tips to follow in this regard:
- Never deny a pre-existing condition if your medical provider takes a history from you about prior injuries.
- Make sure your attorney knows about your prior injuries and accidents.
Your attorney should be prepared to handle the pre-existing conditions in a positive way for your case rather than being surprised by defense counsel when they cross-examine you.
- If the pre-existing condition was not causing symptomology prior to the subject accident, make sure you advise the medical provider that you were not having any symptomology prior to the accident and state for how long you were not having any symptomology.
- If you have a pre-existing condition that was symptomatic, tell the medical provider using a numbering system from 1 to 10 how that pain number has increased. For example, if your pain level was a number 3 prior to the accident and after the accident it increased to a number 7, make sure that the medical provider understands the increase in pain.
If a plaintiff fails to disclose pre-existing conditions or simply denies that they had a pre-existing condition, plaintiffs run the risk that their claim for pain and suffering could be completely sabotaged, not because they cannot make a claim for aggravation for a pre-existing condition, but because failure to disclose a pre-existing condition impacts credibility. A jury will be hard pressed to believe that a plaintiff is injured if they are provided information that shows that the plaintiff failed to disclose pre-existing injuries. If a plaintiff lied about pre-existing conditions, then a jury will likely think that the plaintiff is lying about the alleged injuries from the accident.
In conclusion, a pre-existing condition does not preclude a plaintiff from making a substantial recovery in a case. The aggravation of the pre-existing condition must be well documented through medical records and doctor opinions. Always tell the truth when it comes to your pre-existing condition. Good attorneys know how to create value in a case with pre-existing conditions but they do need to know about those conditions so that they can distinguish the pre-existing injuries from the injuries caused by the accident.