Insurance companies often attempt to use prior injuries to minimize injury claims, but a pre-existing medical condition does not disqualify you from compensation in Virginia, and in some cases your attorney can use a pre-existing condition to help bolster your case.
One of the first things an insurance adjuster will look for in your medical records is a pre-existing medical condition. Insurance companies in Virginia tend to stick to their playbook when analyzing injury claims. We previously discussed a few of their most common plays here and here to try to reduce what they owe. Once the insurance company identifies a prior injury that overlaps with your current complaints, their argument moves from “your injury isn’t worth what you are claiming” to “your injury existed before the crash.”
It is a common strategy, but with the right preparation and honest framing of your case, your pre-existing condition will no longer be used to undermine your case and becomes a medically sound argument to explain the extent of your injury.
The “Eggshell Plaintiff” Rule in Virginia
The law in Virginia recognizes what is known as the “Eggshell Plaintiff” rule. The idea is simple and rooted in fairness; a defendant must take the plaintiff as they find them at the time of the incident.
For example: If you have a vulnerable spine due to a prior disc issue and are involved in a car crash that would have been relatively minor for someone else but instead causes a catastrophic injury, significant pain, and requires surgical intervention, the at-fault driver is responsible for the actual harm they caused, not a hypothetical harm that might have occurred to a healthier person.
By law, this means that a pre-existing condition does not automatically reduce your compensation and the at-fault driver is responsible for the aggravation of your prior condition.
Aggravation of Pre-Existing Conditions
The insurance company will try to end any discussion regarding pre-existing conditions before getting to the most important question, did the crash make that pre-existing condition worse?
The law in Virginia instructs judges and juries to differentiate between your pre-existing condition and your worsened condition after the crash. The worsening, aggravation, or exacerbation of that pre-existing condition is what is compensable when discussing the value of your personal injury case.
This is one of the many reasons why thorough medical documentation is critical. If your prior records show that your pre-existing condition was stable before the crash, and now show your condition is no longer stable, this is clear evidence of aggravation that we can use to support your case. Further, if your treating doctor can speak to the difference in your functional capacity before and after the crash, their opinion can become a key piece of evidence in proving the extent of your injury claim.
How Defense Attorneys and Insurance Companies Use Prior Medical Records
As previously discussed, insurance companies contact injury victims immediately following car crashes to settle cases quickly for fractions of their worth. Another reason insurance companies contact injury victims early and before they have an attorney is to get signed medical releases from the injury victim, giving the insurance company access to the injured person’s medical records, including their prior medical records. Without an attorney to combat their bad faith arguments, insurance adjusters will use your prior medical history to justify their low offers.
It is important to know that if you file a lawsuit in Virginia for an injury claim, the insurance company, through a legal process called “discovery” can request your prior medical records. They will use the discovery process to find pre-existing conditions you may have suffered in the past. This is why it is incredibly important to be honest with your attorney from the beginning so they can begin strategizing for your case early.
When reviewing your prior medical records, insurance companies and defense attorneys are looking for:
- Prior complaints that overlap with your current symptoms. This can include a backache that you may have complained about to your doctor years ago.
- Imaging that shows pre-existing degeneration. Many adults have what is called “degenerative disc disease” in their spine that can appear on routine imaging without causing any pain or discomfort to the individual. However, these images can become the basis for the insurance company’s argument that your symptoms are from the pre-existing degeneration and not the crash.
- Gaps in your discovery responses or deposition testimony. If you fail to disclose prior treatment for a pre-existing condition, the defense will frame this as a credibility problem for you and your case.
How Strategic Preparation Can Counter These Arguments
At the Voelkel Law Firm, one of the first questions we ask our clients is whether they have suffered an injury or received medical treatment in the past for any of the areas that were injured in the present crash. If so, we conduct a thorough review of our client’s prior medical records to understand the extent of their pre-existing condition and develop a case strategy built on the truth. This case strategy includes working with medical professionals to accurately document our client’s change in condition following the crash, framing the aggravation of the pre-existing condition clearly and credibly, preparing our client to discuss their prior injuries honestly during their deposition, and to provide relevant prior medical records to bolster our client’s credibility with the defense and with the judge or jury at trial.
How to Discuss Pre-Existing Injuries with Your Attorney
It is important that when you speak with your personal injury attorney, you tell them everything about your prior medical history. This is critically important, even if you think it may hurt your case. Pre-existing conditions that are managed honestly become context that can be used to explain the extent of your current injuries. The inverse is also true, if your personal injury attorney doesn’t know about a pre-existing condition, the defense will invariably find those records and use that pre-existing condition to catch your attorney unprepared and permanently devalue your case.