I Have a Preexisting Injury – Now What?
Don’t Give Up!
Last month, we won a settlement for one of our accident injury clients of the at-fault party’s full insurance policy limit. Our client had injured her neck and underwent a cervical discectomy after being involved in a car accident in June of 2021. This same client of ours had been in a prior accident in August of 2017. In that previous accident, she had also injured her neck, and as part of her treatment of that injury, she underwent a cervical discectomy in April of 2018. People often think that if they suffered a prior injury, they are not entitled to compensation if, like our client described above, they are reinjured in an accident. The same applies for people who had prior medical treatment for a medical condition and then injured that same body part in an accident. An example of this might be the person who had knee surgery due to degeneration and subsequently injured that knee due to the negligence of another person and, as result, requires a second knee surgery. In a few ways, the law protects people with a prior injury or medical condition by permitting compensation for the additional harm caused by an accident. One such way is the “Eggshell Skull” doctrine which basically says the person responsible for the accident takes the injured party as they find them. In the first example above, perhaps our client wouldn’t have been so seriously injured if not for her prior neck surgery. Nevertheless, her right to recovery is protected by the “Eggshell Skull” doctrine. The defendant in such a case cannot successfully argue that the plaintiff had an unusually high level of sensitivity to injury. This was once argued, long ago, when a defendant caused a head injury but tried to defend
in an accident. Here, the law allows recovery for any aggravation or exacerbation of the already existing injury or medical condition. By way of example, we won a six-figure recovery for our client who, the day before the accident, had been to his doctor and complained he was barely able to get out of bed and that his pain was “a 10 out of 10” (with 1 the lowest and 10 the highest) for the same body part he significantly aggravated the very next day in a car accident. Finally, the law allows recovery for an aggravation of a preexisting injury or condition. We have won significant compensation for many clients who had “a new injury on top of an old injury.” These have included prior asymptomatic herniated discs, which become symptomatic after an accident; asymptomatic severe arthritis, which flared by the trauma of an accident, leading to a total knee replacement; and other similar treatment presentations.
himself by saying the amount of force involved would not have injured the average person. This argument was rejected, and the principle stated above (that the person responsible for the accident takes the injured party as they find them) was incorporated into the doctrine of our justice system. The law even recognizes the right to compensation of a person who is actively undergoing treatment for an injury or medical condition at the time they are involved
As we journey through life, none of us remain in the pristine condition in which
we may have begun our journey. Fortunately, the law recognizes this and permits recovery. The takeaway message is never prejudge an accident injury situation. It is always in your best interest to consult with an experienced, dedicated personal injury lawyer.
-Roger Simon
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FriedmanSimon.com
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