It’s a favorite tactic for insurance companies to try denying an injury claim because of pre-existing circumstances. Having a pre-existing condition that may predispose a person to injury or make it harder to prove the harm resulting from the most recent event. However, it does not deny a person’s right to seek compensation.
You can count on your claim being challenged when you have a pre-existing condition, so you need to keep that in mind when you see healthcare providers. You want your medical records to distinguish as clearly as possible what is happening now from your condition before the most recent injuries. The personal injury lawyers at Farah Law can help you understand how to file a personal injury claim with a pre-existing condition.
How Your Pre-Existing Conditions Might Be Used Against You
Two types of pre-existing circumstances will draw attention when a personal injury claim is made. One concerns a person’s susceptibility to injury, and the other concerns the aggravation of a previous injury.
Eggshell Skull
In some instances, an injury is unusually harmful to a particular person due to a personal condition, such as a physical illness or disability. In these cases, the insurance company may argue that an average person would not have experienced the same injury. This is often followed by the claim that the wrongdoer should not be liable for the additional damage due to the pre-existing condition.
Fortunately, common law has long established that a wrongdoer is responsible for all of the harm they caused, regardless of the particular susceptibility of the person injured. The so-called ‘eggshell skull’ rule followed by Texas holds the wrongdoer liable for the unforeseeable harm precipitated by the unusual condition.
Aggravated Injury
When a new injury aggravates a previous injury, the old injury may be blamed for the current symptoms. Since only the aggravation is compensable, it’s necessary to be able to establish the condition of the injury before the event in question and to show how the condition has been worsened. This is part of the reason it’s vital that a victim compile a full medical record for both their previous conditions and those caused by the personal injury in question.
The Texas Pattern Jury Charges are instructions for jurors in personal injury cases so they understand their duties regarding damage awards. These instructions hold that jurors in cases involving pre-existing conditions should not include any amount for a pre-existing condition except to the extent the pre-existing condition aggravated the occurrence in question.
Why You Need to Tell Your Doctor if You Have a Pre-Existing Condition
It’s always recommended that a person involved in an accident seek medical attention as soon as possible thereafter. It is especially important for someone with pre-existing conditions to establish a medical record tying the accident to the onset of new injury symptoms. The more separation your doctor can place between current injuries and former injuries, the easier it is to distinguish a current claim and evaluate the appropriate damages.
You should always be candid with your healthcare providers and make sure they are aware of any pre-existing conditions or injuries. You must honestly discuss the status of the old injuries prior to the recent injuries. Full disclosure also promotes credibility since the other side will be requesting copies of pertinent medical records. It will not help your personal injury claim if it appears as though you are trying to hide something.
What You Should Know Before You Sign a Medical Records Release Form
When you make a personal injury claim, the opposing party, or even your own insurance company, is going to want to review your medical records. They do this to verify your claimed injuries and determine if you have other medical conditions that might affect your claims. A third party can only review a person’s medical records if the person signs a release allowing them access to the records.
Medical releases are often prepared by the party wanting access to the records and can be overly broad, effectively allowing the requesting party to go on a ‘fishing expedition.’ The Texas Supreme Court recently addressed the permissible scope of discovery when requesting medical records regarding injuries claimed from a car accident. The Court acknowledged that the scope of discovery is typically broad, but the right to information must be weighed against the needs of a particular case.
Whether a request for medical records is overly broad must be considered in light of the following factors:
- The likely benefit of the requested records
- The needs of the case
- The amount of compensation that is in controversy
- The resources of the parties
- The importance of the issues at stake
- The importance of the records in resolving the issues
Be Careful to Protect All Your Information During Insurance Negotiations
As a general rule, you should read any medical release form closely to determine what information the company is requesting. They do not need to see your entire ‘medical history’ but should only be allowed appropriate access to review medical records directly pertaining to the claimed injuries. Your personal injury attorney can review the form and help you make an informed decision about what they can access.
Medical records may not tell the whole story when it comes to pre-existing injuries. Often, the party in opposition will want to compare other available sources of information to see if there are any conflicts. Employment records, information from witnesses, and social media content are all sources of information that can be used to discredit the current claims.
Having a Pre-Existing Condition Is Not Uncommon
According to an article on the Centers for Medicare and Medicaid Services, as much as 50% of non-elderly Americans have some type of pre-existing health condition. The number increases to 86% for Americans over the age of 55. As the population of the United States ages, more and more people will experience pre-existing conditions that could impact their case in a personal injury claim against a negligent party.
Still, if you were injured (again) by someone else and sustained new injuries, you are entitled to compensation, assuming you can prove the fact of new injuries and the extent of harm you have suffered. By retaining a qualified personal injury attorney with experience handling pre-existing condition claims, you do not inadvertently jeopardize your claim by providing unnecessary information.
Do Not Let a Pre-Existing Condition Interfere With Your Right to Compensation
If you were injured by someone else’s careless, reckless, or even intentional actions, you have a right to be compensated under Texas law. You hold this right even if you have a history of similar injuries or you are more susceptible to injury than most other people. However, you will have to be able to distinguish recent injuries from previous injuries.
Dealing with pre-existing conditions in a personal injury claim requires the ability to convince an insurance company that your documented injuries should only be associated with recent events. At Houston-based Farah Law, our personal injury attorneys have been fighting for the rights of clients with pre-existing conditions for decades.
Don’t let an insurance company intimidate you about a pre-existing condition. Contact Farah Law to arrange a free consultation today.
