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Personal Injury Pre existing Conditions What You Must Know





“Should I tell them about my pre-existing condition?” “Will it hurt my case?” are questions clients often ask.

You don’t want to hide anything about your medical history from the other side. First, you have an obligation to share the information. Second, a preexisting condition that is aggravated can mean more compensation than if you were completely healthy before the accident.

Take the case of Shannon whose car was struck from behind while sitting in traffic. There was no visible damage to her Toyota Supra. Ordinarily a low property damage case like this one would not be worth much.

However, she began to feel pain in her neck right after the accident and was taken to the emergency room. A CT scan revealed that a preexisting disc injury had been aggravated. Eventually Shannon required surgery.

When I presented a claim to the at-fault driver’s insurance they made no offer at all. This is often the case in accidents with no visible car damage.

After a lawsuit was filed and a trial date was set the insurance company settled the case for a significant amount.

The Rule On Aggravation Of Pre-existing Conditions

In all 50 states it is established that a tortfeasor (i.e. the person-at-fault, also known as the defendant) is liable when he aggravates a preexisting condition of the plaintiff (i.e. the injured person, the person who files the lawsuit).

The United States Supreme Court gave approval to this principle in United States v. Feola (420 U.S. 671, 685.) In the Feola case the person-at-fault assaulted a plain clothes federal police officer. He tried to reduce his liability by arguing that he did not know the man was a federal officer.

The Supreme Court did not care. It was irrelevant, said the Court, that the assailant did not know the victim was an officer. In summary, said the Justices, citing a well-established principle of American law, a tortfeasor "takes his victim as he finds him."

This principle is often referred to as the “eggshell plaintiff rule” in reference to an early English case where a man with a thin skull suffered death when a normal man would have only suffered a bump on the head.

Asymptomatic Versus Symptomatic Condition

The rule is applied differently depending on whether, before the accident, the victim was "asymptomatic," i.e. no symptoms or "symptomatic" i.e. having symptoms.

Here is a summary of the majority American rule on aggravation of asymptomatic pre-existing conditions as expressed by the Utah Court of Appeals:

"the rule is well settled that when a defendant's negligence aggravates or lights up a latent, dormant or asymptomatic condition, or one to which the injured person is predisposed, the defendant is liable to the injured person for the full amount of damages which ensue, notwithstanding such diseased or weakened condition."

The other situation involves a preexisting condition where pain or disability is present before the new injury worsens it. In that case the tortfeasor is only responsible to pay the victim compensation for the aggravation of the condition.

In these cases it is necessary to apportion between the preexisting condition and the worsening caused by the new accident.

Workers Compensation

The rule is well established that when an industrial accident lights up or aggravates a pre-existing deficiency or disease, it is compensable as long as the industrial accident was the medical and legal cause of the injury.

Conclusion

Knowledge of the law of pre-existing conditions is a "must know" area for anyone handling an injury case. Be sure to research and understand the principles as they apply in your state.

Disclaimer

This article is provided for informational purposes only and is not intended to take the place of competent legal advice from an experienced injury attorney in the state where you live.
About Author Rex Bush :

Rex Bush is founder of Bush Law Firm near Salt Lake City, Utah where he handles personal injury cases in Utah and throughout the United States and Canada. For information on personal injury issues visit his Utah injury attorney website: <a href="http://www.utah-personal-injury-attorney.com" target="_blank">http://www.utah-personal-injury-attorney.com</a>


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Article Added on Monday, May 25, 2009
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