In this day and age, it is common for personal injury victims to have prior injuries and accidents that come into play when evaluating the value of a claim. If you listen to the claims adjuster they will have you believe that a prior injury is the “end all be all” of a claim. This is not true. When dealing with “priors” it is important that your personal injury attorney not only understand your prior injury, but more importantly anticipate how to defeat the simple arguments often made by insurance carriers.
The first step when evaluating prior injuries is to get a proper “baseline” of a person’s health prior to crash or accident that caused the new injuries. Baseline simply means: how was the person feeling prior injuries before the new injuries taking place? The most important place to start is with medical records. Personal injury attorneys that are trying to determine your baseline must get their hands on every possible prior medical record of any past injury and treatment. If the medical treatment was 5 or ten years ago this may prove to be difficult, but even medical records of general checkups are critical. If you sustained a neck or back injuries injury 8 years ago, it is common sense that time itself helped in healing the body and alleviated some or all of the injuries. If the medical records are clear that 2 years after the initial neck or back injury took place you were back to 90% recovery, it is a great way to establish the baseline. Most disc injuries do not heal on their own. In fact, a large percentage of people walking around may have sustained disc injuries in the past yet show no symptoms.
This brings us to the next point: Symptomatology. Because injuries tend to heal with time, a prior disc herniation means little when properly generating a baseline of health. If a disc injury was treated, and the patient took care of himself, then disc injury may still be present but present zero pain. So if you sustained a prior injury 8 years ago and had zero complaints for the last 5 years, it is critical to obtain any medical records that show the “lack” of neck or back complaints. This is often overlooked by attorneys, but the most powerful piece of evidence one can show a jury is a prior medical record that was created when there was no reason to not be completely truthful to the treating physician. I have been in trial where the insurance carriers are jumping up and down telling the jury that my client had a prior neck injury. They will parade around the MRI films from 8 years ago, showing the offending disc and they say “See jury, this happened 8 years ago”! This is where medical history is important. What do we show the jury? We show the jury 5 years of medical records where our client told the doctor that they had zero pain and zero discomfort prior to the new accident. “Members of the jury, it’s not about the prior accident, what is important is that every time this person spoke to a doctor the records show that they had no pain.”
AGGRAVATION AND EXACERBATION
Florida jury instructions take in to account that people have been involved in prior accidents. Let’s consider an accident where two people were riding in the same car. One is a 22 year old man with no prior accidents, injuries, or complaints of any kind. The other person is a 55 year old man with a medical history showing that he had several car accidents in his lifetime, and one in particular he treated for 10 years ago. It is logical to conclude that the 55 year-old man is more likely than the 22 year-old to sustain a neck or back injury if involved in the same accident. The older we get, the more susceptible to injures we become. This is where it is critical to understand what an aggravation is and how to deal with it in court. The insurance companies will hire their “sweetheart” doctors to come in and say the injuries were from the prior accident. But jury instructions are clear that if you cause an accident, you don’t get to pick and choose who you hit. Meaning, if you hit the 55 year-old man and caused an aggravation to that prior injury, you are on the hook for the aggravation you caused. Someone causing an accident may hit someone with a physical deformity or predisposition to be injured. Even though your average person may not have sustained an injury in that particular accident, the at-fault person is on the hook for whatever injures they caused or “activate” as a result of their actions. When hiring a personal injury attorney it is critical that they not only understand these jury instructions, but also how to present them to a jury in a clear and concise way.
When it comes down to value, all of these issues come into play. If an attorney is not aggressive in meeting challenges of prior injuries head on, they may be undervaluing your case. They will play into the hands of the insurance companies. Again, it’s not only important to look at what medical records say, but it is even more critical so evaluate what medical records don’t say. Every single personal injury claim has the same basic levels of defense by the insurance industry. They always fall back on saying that the injury, or the problems that show up on the MRI films were not caused by “this” accident. If you spend time in court trying to combat that theory, or arguing with the professional witnesses they hire and pay millions of dollars to, you might as well not walk into the courtroom.
Call our St. Petersburg Car Accident Attorneys to Discuss Your Rights Today
At the law office of Berkowitz & Myer, our St. Petersburg auto accident lawyers know how a drunk driver can impact your life and we will protect your rights to hold that driver liable for your losses. Call us for a free consultation today at 727-344-0123.