Insurance companies are businesses, and the existence of a pre-existing injury is something that many of them will seize upon to reduce your personal injury claim or even deny it altogether. You may even lose a lawsuit on this basis if your claim is not handled appropriately. Nevertheless, you should always reveal a pre-existing injury to your lawyer and allow him to decide how to release this information, because your credibility will suffer greatly if you are caught attempting to conceal it. It is entirely possible for a car accident claim to survive despite the presence of a pre-existing injury.
The “Eggshell Plaintiff” Doctrine
The “eggshell plaintiff” doctrine states that a defendant in a personal injury lawsuit must take his victim as he finds him. In other words, if a victim with a pre-existing weakness (an “eggshell skull” for example) suffers unexpectedly catastrophic injuries as a result of a relatively minor impact, an at-fault defendant cannot have his damages reduced to what they would have been if the plaintiff’s skull had been of average thickness – he must pay full damages. The same analogy applies to other types of weaknesses and infirmities.
Despite the eggshell plaintiff doctrine, when a pre-existing injury is involved in a personal injury claim, many insurance companies will either (i) deny coverage altogether by claiming that your injury is 100% attributable to your pre-existing injury and 0% attributable to the accident (a “pre-existing only” injury), or (ii) reduce the value of your claim by purporting to separate your injury into two components – 60% pre-existing injury and 40% new injury, for example. If the insurance company is stubborn, you may have to take them to court to resolve the issue.
Pitfalls for the Unwary: Medical Authorization Forms
If you file a third-party insurance claim (a claim against the liability insurance policy of the other driver, for example), you may be asked to sign a medical authorization form. Don’t do it without consulting with a personal injury attorney first, because a medical authorization form will give an insurance company unfettered access to your medical records, allowing numerous opportunities to “cut and paste” a justification for denying your claim. Instead, have your lawyer release information conservatively and prudently
If you are making a claim against your own insurance policy, however, your state’s law might require you to fully cooperate with them by providing them with any medical records they ask for. Consult your lawyer for details on the law of your state.
Making Your Case at Trial
If your case goes to court, a court will probably attempt to tease apart the damage that was pre-existing and the damage that was caused by the accident, and award you damages for the extent to which your pre-existing injury was aggravated. If it turns out to be impossible to separate the two, the court might just apply the “eggshell plaintiff” doctrine and award you full damages.
In most cases, the most rational way to prove your case is through a “before and after” comparison of your lifestyle and your medical records, perhaps supplemented by the testimony of your doctor, your family members or an expert medical witness. A good car accident lawyer will know enough about the type of injuries that most often occur in car accidents to make the right comparisons and select the right expert to testify. If your case is strong, most personal injury lawyers will work with you on a “no win, no pay” basis.