ANSWER: Yes, You can make a claim for injuries if you have a pre-existing condition
It is a long standing legal proposition that a tort defendant “takes his victim as he finds him.” This rule is referred to in the law as the “eggshell plaintiff” rule. This legal theory makes a defendant responsible for all damages resulting from his negligence The Defendant, aka the insurance company, will want to argue because of the plaintiff’s preexisting condition, the injuries he/she are more severe than they would have been in a non-frail person. However, this argument will not prevail.
Under the law, A person who has a condition or disability at the time that he or she is involved in an injury accident is entitled to recover damages for any aggravation of that preexisting condition or disability that results from the accident. Thus, a person cannot recover damages for the injury they have, but rather for making that injury worse and for additional injuries they suffer.
This is true even if the person’s condition or disability made him more susceptible to the possibility to being injured than a person without injury would have been. Therefore, even if a healthy person probably would not have suffered any substantial injury in the accident, a person with prior injury may be more likely to sustain injury and the adverse driver is liable for those injuries.
The most important thing to remember is that having a pre-existing condition does not prevent you from recovering damages in an injury accident. A pre-existing condition may make you more susceptible to injury, but that does not allow the insurance company to offer you less compensation. It is very important to be up-front with your lawyer about your past accident, injuries and medical conditions . Laura Payne Hunt, Esq. has many years’ experience working for and against the insurance companies. With this experience and a skilled legal team, she can help get you the compensation that you are you entitled too, regardless of your condition before the accident. If you or anyone you know is injured in an accident, please call our office today at (702) 450-4868 to schedule your free consultation with Laura Payne Hunt, Esq. a highly experienced Las Vegas and Henderson car accident attorney.
Where a preexisting condition or disability is made worse, the damages as to for the exacerbation are limited to the additional injury caused by the accident. In fact, the Nevada Pattern Jury Instructions specifically address this issue at Nev. J.I. 10.06 as follows:
PERSONAL INJURY; AGGRAVATION OF PREEXISTING CONDITION
A person who has a condition or disability at the time of an injury is not entitled to recover damages there for. However, he is entitled to recover damages for any aggravation of such preexisting condition or disability proximately resulting from the injury.
This is true even if the person’s condition or disability made him more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury.
Where a preexisting condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional injury caused by the aggravation.
NEV. J.I. 10.06
Courts have addressed this issue repeatedly over the years. In Lovely v. Allstate Ins. Co., No. 7274 (Me. May 30, 1995) the plaintiff suffered from a preexisting injury which was exacerbated by a subsequent accident. The defendant successfully argued to the trial court that, in order to recover, the plaintiff had the burden of demonstrating which portion of his injury resulted from each accident. After reviewing the evidence, held that the medical testimony failed to provide a basis for apportioning the damages as between the two acidents. Although the record contained substantial evidence of pain and suffering, as well as medical expenses attributable to plaintiff’s elbow injury, the trial court declined to award any damages based on this injury, finding that plaintiff failed to meet his burden of proof.
The Appellant Court reversed on the ground that the trial court had mistakenly placed the burden of proof as to apportionment on the plaintiff. Rather than awarding no damages for the elbow injury, the Appellant Court ruled that the trial court should have awarded plaintiff his total damages. In so holding, the Court actually invoked not the eggshell-plaintiff rule, but also the single-injury rule, traditionally applied in cases involving multiple tortfeasors. The court held that that the single-injury rule “places any hardship resulting from the difficulty of apportionment on the proven wrongdoer and not on the innocent plaintiff,” the Court extended the application of the rule to cases involving preexisting conditions. Thus, the Court held that where a preexisting condition is exacerbated or made worse by a negligent act, resulting in an aggregate injury which is incapable of apportionment, the tort feasor and not the victim must suffer the hardship of proving apportionment.
Insurance companies use any tactic possible to unreasonably deny or undervalue claims. You need an attorney experienced in dealing with insurance companies. Laura Payne Hunt, Esq. has been a Henderson Accident attorney for over ten years. Prior to working exclusively with injured people, Laura worked for a major insurance company in house for many years. She knows how to beat then to the punch so to speak. She can help you fight for the compensation you deserve, including pursuing a filing a lawsuit against the person or persons who caused your injuries. Insurance companies understand that at the end of the day it will be a jury who will decide the value and not the insurance company. However, it takes experience to convince a jury that your condition and pain and suffering has been caused by the defendant’s negligence, rather than the pre-existing condition. An experienced lawyer like Laura Payne Hunt, Esq. knows how to prover your injuries. If you have a prior injury or pre-existing condition and are injured in an accident, you will want to do the following:
- Maintain Documentation: You should make sure you discuss any pre-existing conditions with your doctors.
- Discuss differences with your Doctor –Ask them to be clear about explaining whether your current problems and symptoms are due to the accident or the prior condition.
- Be Honest with your Doctor – You must also be honest and open about your prior condition when speaking to your Doctor.
- Be Honest with your Attorney — Hiding information puts your lawyer at a disadvantage when negotiating with the insurance company.
The best way to protect your claim if you have pre-existing medical conditions or prior injuries is to be candid and honest with your attorney and your doctors about these conditions at your first consultation. Your truthfulness about your medical condition will allow your doctors to understand your new injuries. It is important to be open about your past medical history. This honesty will put you in the best position possible for a maximum recovery in your case. Insurance companies and defense attorneys will have access to past accident history whether or not you are candid. It can damage your case if they find it be other means. That is why it is important to remember to all of your past injuries when discussing your case with your attorney and your doctor and let your attorney and doctors known about these issues. If you are not honest in disclosing these conditions in the beginning, you are setting yourself up for many different problems including harming your credibility, ruining your entire case, and even subjecting yourself to legal action.
If you have a question about a pre-existing condition, please don’t hesitate to call our office or a loved one is injured call our office immediately. We can make sure that you receive the care you need and deserve, and advise on how to preserve evidence. If you have been in any type of accident and have questions, please don’t hesitate to contact our offices today. At my office, we are experienced in helping injured victims get the compensation they are entitled to. Insurance companies never have the best interest of the injured person at the top of their priorities. They want to pay as little on every claim as possible. Having worked for an insurance company as an attorney for 9 years before opening my boutique law firm specializing in helping injured people, I reviewed thousands of auto accident claims and policy provisions.
At the Law Offices of Laura Payne Hunt we are here to help you and your family in the event that accidents and tragedies occur. For any of your legal needs, do not hesitate to contact our offices. The Law Offices of Laura Payne Hunt is a boutique, family owned law firm in Henderson that specializes in helping injured people and the community with legal issues involving auto accidents, wrongful deaths, slip and falls, truck accidents, injuries to children, bicycle accidents, dog bites, and all types of injury claims. Please do not hesitate to call us anytime you have a legal question or you or a loved one has sustained an injury at 702-450-(HUNT) 4868 and text 24/7 at 702-600-0032.