If you are hurt in an accident and decide to pursue a personal injury claim, you may wonder if you should reveal your pre-existing medical conditions. You may have heard that insurance companies sometimes try to claim that any injuries related to a pre-existing condition should not be compensated at all, and worry that you will not receive the compensation you deserve.
Our Virginia Beach personal injury attorneys always recommend that our clients disclose to us, as their attorneys, any relevant pre-existing conditions they may suffer. The main reason is this: If they don’t, it will likely be discovered later and will reduce the value of their claim or lead the insurance company to even deny the claim entirely.
We explore why this is below, and show you how we use our over 100 years of combined experience to prove you deserve to recover your damages incurred in a Virginia car accident, even if your injury is partly related to a pre-existing condition.
What Is a Pre-Existing Condition?
A pre-existing condition is a medical issue or injury that a person had prior to the accident or personal injury claim. These conditions can vary and may include chronic or intermittent back pain, arthritis, previous injuries from other accidents, old traumatic brain injuries, and even ongoing medical problems that may have been stable or well-managed before the accident.
The key thing to know under Virginia law is that any aggravation or worsening of a pre-existing condition is totally compensable, and if a car wreck causes any newly incurred injury, the new portion is compensable.
For example, you may have been diagnosed with low back pain at the L5-S1 lumbar disc level. However, a new MRI post-wreck may show that the impact aggravated your L5-S1 disc, but also caused bulging of your L5-L4 disc. That would be both an aggravation of a pre-existing condition and a completely new injury. Both aspects would be compensable under Virginia personal injury law.
Another example: Let’s say you have been struggling with chronic back pain for the last two years. Then you are involved in a car accident that further injures your back. Your pre-existing back pain may complicate your personal injury claim because insurance companies often try to minimize the impact of the new injury by blaming your pre-existing condition for all your suffering.
What is the Eggshell Skull Doctrine Under Virginia law?
Virginia law recognizes the “eggshell plaintiff doctrine.” Also called the “eggshell skull doctrine,” the eggshell plaintiff doctrine states that a liable defendant is responsible for the full extent of a plaintiff’s injuries, even if the plaintiff’s pre-existing conditions made the injured person more susceptible to injuries, causing their injuries to be worse.
The doctrine got its name from the idea that if a defendant negligently bumps into a plaintiff with a skull as thin as an eggshell, the defendant would still be liable for breaking the eggshell, even though a normal skull wouldn’t have been damaged.
Taking advantage of this legal doctrine, however, often requires help from a qualified personal injury lawyer. The legal framework around this type of case can be difficult, and makes calculating compensation challenging. An experienced personal injury lawyer can help maximize compensation and ensure a fair settlement.
What If I Try to Keep the Pre-Existing Condition Private?
If you don’t disclose your pre-existing condition to your lawyer, the other side will probably find out about it anyway, which can harm your case. Our lawyers can easily leverage your pre-existing condition into the best possible light as long as planning occurs.
For example, we can ask your treating doctors to explain and testify about whether you suffered aggravation and new injuries caused by the wreck. But when the fact our client had a pre-existing condition is concealed by our client, it causes a cascade of negative inferences and can quickly diminish a good case’s value.
Insurance companies conduct thorough investigations, as they are out to protect their bottom lines. They have ways to network and keep track of prior workers’ compensation or other personal injury claims through inter-insurance company networking and through subpoenas during suit.
If they discover an undisclosed pre-existing condition, they will question your credibility, and the overall value of your case will go down. Insurance adjusters often look for reasons to reduce payout amounts, and undisclosed conditions give them an easy opportunity to do that.
How Do Insurance Companies Discover Pre-Existing Conditions?
As to how the insurance company might discover your condition, there are a variety of ways:
- Medical Records: After an accident, insurance companies often request your medical records. These documents may reveal past injuries or conditions that could influence your current claim when you mentioned them to any doctors.
- Independent Medical Examinations (IMEs): The insurance company may ask that you undergo an IME. During this process, the doctor they select may review all medical records and uncover pre-existing issues.
- Subpoena: If your case goes into litigation, the defense attorneys will subpoena all relevant medical records—not only on the current case but relating to any prior medical conditions you have suffered. They may also subpoena your health insurance companies you have been covered by to get a list of all of your medical providers in the past.
- Social Media: Insurers often scan social media profiles, looking for any posts or photos that might indicate a different accident and pre-existing conditions.
- Statements from Your Physician: Your doctor may disclose information regarding your past medical history in a medical record.
- Interviews and Statements: You may mistakenly reveal something that indicates a pre-existing condition in your communications with insurance adjusters before you retain our lawyers. In other words, the insurance company is likely to find out! Be advised that you should never give a recorded statement to any adverse insurance adjuster. Always let your personal injury attorney know about any pre-existing conditions you have so we can maximize your injury case.
How Can a Personal Injury Attorney Help?
Pre-existing conditions can complicate a personal injury claim, but our experienced attorneys can still help you secure a fair settlement. We know how to prove that either your injury was partly new and separate, or that it aggravated your pre-existing condition.
When the body is scarred or damaged from a prior medical condition and a new injury occurs, the body often can’t repair it correctly because of the prior injuries. Medical evidence can show this to be true, meaning, for example, that a person with prior scar tissue will not have the same healing ability as a person without pre-existing scarring.
When working on your behalf, we may employ several strategies:
- Medical documentation: We will use your medical history to establish a baseline of your health before the accident.
- Expert testimony: We can use expert witnesses, including medical professionals, to testify about how the accident aggravated your pre-existing condition.
- Comparative analysis: We can compare your health before and after the accident, using medical records to illustrate the changes, and using medical imaging such as MRI’s from before and after.
- Pain and suffering documentation: Testimony and records that show the impact of your injury on your daily life, work, and overall well-being can serve as evidence to strengthen your claim, especially if your abilities became more impaired after the new incident.
- Legal precedents: We are familiar with previous cases involving similar circumstances, and will use these to build a more robust argument in your favor.
If you or a loved one suffered a serious injury and you are concerned about a pre-existing condition, contact our firm today for a free initial consultation. We will carefully investigate your case as we did for our client who was involved in a car accident in Virginia Beach. The insurance company initially refused to offer a reasonable settlement, arguing that our client’s pre-existing condition caused his disability.
Our experienced personal injury attorney presented a strong case on the connection between the collision and the man’s partial disability, as well as his future medical costs and lost earnings. After much negotiating, we secured a $675,000 settlement for our client.
Named a “Best Law Firm” since 2010, we have offices in Virginia Beach, Chesapeake, Portsmouth, Hampton, and Norfolk.
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Rick Shapiro has practiced personal injury law for over 30 years in Virginia, North Carolina, and throughout the Southeastern United States. He is a Board-Certified Civil Trial Advocate by the National Board of Trial Advocacy (ABA Accredited) and has litigated injury cases throughout the eastern United States, including wrongful death, trucking, faulty products, railroad, and medical negligence claims. During his three-decade career, Shapiro has won client appeals before the VA Supreme Court, VA Court of Appeals, NC Supreme Court, SC Supreme Court, WV Supreme Court, TN Supreme Court, and three times before the United States Court of Appeals for the Fourth Circuit, underscoring Shapiro’s trial achievements. In addition, he and his law firm have won settlements/verdicts in excess of $100 million. His success in and out of the courtroom is a big reason why he was named 2019 “Lawyer of the Year” in railroad law in U.S. News & World Report's Best Lawyers publication (Norfolk, VA area), and he has been named a “Best Lawyer” and “Super Lawyer” by those peer-reviewed organizations for multiple years. Rick was also named a “Leader in the Law, Class of 2022” by Virginia Lawyers Weekly (total of 33 statewide honorees consisting of lawyers and judges across Virginia). And in September 2023, Rick was selected as a recipient of the National Board of Trial Advocacy (NBTA) 2023 President’s Award. Although many nominations were submitted from across the country, Rick was just one of eight attorneys chosen by the prestigious National Board which certifies civil trial attorneys across the U.S. Rick was also recently named to Virginia Lawyers Weekly 2024 Virginia’s Go To Lawyers Medical Malpractice. The attorneys awarded this honor are nominated by their colleagues and chosen by a panel from the publication.
