A pre-existing condition, or even the false claim of a pre-existing condition, can greatly impact the value of your personal injury claim. In a worst-case scenario, it might defeat your claim altogether, leaving you with no compensation.
This article outlines various scenarios that might relate to the claim of a pre-existing condition arising from a Texas car accident. It is essential that you understand your rights under these circumstances.
What Is a Pre-Existing Condition?
A pre-existing condition is an injury or another adverse health condition that predates your car accident. You might have an old back injury, for example. If your back injury predates your car accident, the car accident cannot have caused your back injury – at least not that specific back injury you had prior to the crash.
The defendant, or more likely their insurance company, will seize upon this to deny your claim of compensation to the extent that it is based on your back injury. Even with a pre-existing condition, however, you might still qualify for compensation.
How Insurance Companies Will Try to Prove Your Injuries Were Pre-Existing
Insurance companies are businesses. Their number one goal is to make a profit, not to compensate you for your losses. Because of this, you can expect the insurance company to do what it can to deny or minimize your car accident claim. Here are some of the techniques they like to use to assert the “pre-existing condition” defense:
- Review your old medical records. You shouldn’t give the insurance company permission to view your medical history. If you file a lawsuit, they might seek to compel you to release this information during pretrial discovery. If they find anything, you can be sure they will do their best to exploit it.
- Demand an Independent Medical Exam (IME). This is a particularly common request during pretrial discovery. They will use their own doctor to conduct the examination, and the doctor is likely to be biased in favor of concluding that your injury predated the accident because…guess who’s paying the doctor?
- Hire an expert witness: An expert witness can provide persuasive testimony that your injuries predated your car accident. However, the witness must comply with the Texas Rules for Expert Witnesses.
- Snoop on your social media accounts for any reference to a pre-existing injury.
The more money you demand, the harder the insurance company will fight to prove your injuries were pre-existing.
How You Can Prove the Accident Caused Your Injuries
To prove that your injuries did not predate your accident, you can turn some of the insurance company’s tactics around on them. You can also use other legal weapons to make your case. Following are some examples.
Refer to Your New Medical Records
Just as the insurance company might refer to your old medical records to try to prove that your injuries were pre-existing, you can refer to your post-accident medical records to help prove that your injuries are new.
Hire Your Own Expert Witness
You might hire an accident reconstruction specialist, for example. Differing opinions among experts are common. You might need your own expert witness to refute the insurance company’s expert witness. You could end up in a “battle of the experts” where the winner turns out to be whoever hires the most persuasive expert.
Call Your Own Eyewitnesses
In many cases, the way that an accident happens can prove when an injury occurred. Eyewitnesses can help you establish the nature and sequence of the accident.
Refer to the Police Report
In most cases, you cannot use a police report as evidence in court; instead, you have to call the officer to the stand to testify. However, you can use a police report in settlement negotiations.
Use Physical Evidence
You can use photos that you took yourself. If a picture is worth a thousand words, a CCTV video is probably worth an entire novel. These days, CCTV videos are more common than most people realize. You might also extract information from a car or a truck’s event data recorder to help reconstruct the accident.
An experienced personal injury lawyer can help you collect admissible evidence and present it in the most persuasive possible manner.
What Happens If Your Accident Worsened a Pre-Existing Condition?
Maybe the insurance company is falsely claiming that you have a pre-existing condition. On the other hand, maybe you do have a pre-existing condition. Even if you do, however, that need not disqualify you from receiving personal injury compensation. You can recover compensation for the extent to which the accident worsened your condition.
If you had a nagging back injury but are now bedridden, for example, you can recover compensation for the difference between your previous degree of impairment and your current degree of impairment. If you suffer an occupational disability because of your car accident, your increase in impairment might be worth a lot. You will need to prove the following:
- The extent of your original pre-existing condition. How bad was it?
- The extent of your car accident injuries. Medical records should help prove this much.
- The fact that the accident is what caused your condition to deteriorate.
- The exact extent to which your condition deteriorated.
Proving all of this can require the submission of quite a bit of evidence.
Well over 90% of all personal injury claims resolve through out-of-court settlements, not trials. Because pre-existing injury claims are so speculative, your negotiations must take into account this uncertainty. A skilled negotiator (such as your lawyer) can turn uncertainty into your advantage. Insurance companies usually don’t like going to court unless they are fairly sure they can win.
You’re Going To Need a Seasoned Fort Worth Personal Injury Lawyer for This One
It is difficult to win a personal injury claim when your case involves a credible claim of a pre-existing injury. Nevertheless, experienced personal injury lawyers win cases like these every day. Here are some of the tasks that a lawyer can handle for you:
- Conducting an Investigation into your claim.
- Gathering evidence that complies with the Texas Rules of Evidence.
- Retaining expert witnesses if necessary.
- Negotiating with the insurance adjuster.
- Litigating your claim in court if necessary.
Your chances of receiving fair compensation are far better with a lawyer on your side, as a lawyer can take care of virtually every aspect of your claim while you focus on your recovery.
Further, Fort Worth personal injury lawyers typically charge on a contingency basis. This means you pay nothing unless you receive compensation for your injuries, and your legal fee adds up to a percentage of your total compensation.