Determining Damages When You Have A Preexisting Condition
It’s another beautiful San Francisco day. You approach a red light, slow down and come to a stop. Unfortunately, the truck behind does not see you stop and barrels into the back of your car. Air bags deploy, and you feel the jolt down your entire body. You feel you are well enough to walk away from the accident and head home. A few days later, you notice your back is sore and causes you increasing discomfort. You initially blame it on an old athletic injury from years ago, but now it seems so much worse. Maybe it’s from the accident, but what can you do about it?
If you are handling your own claim without a lawyer and you talk to the insurance adjuster in this case, they might inform you that you cannot recover damages as a result of the accident because you have a preexisting condition. A preexisting condition is a condition or disease that existed before the time of an accident. However, the adjuster is not telling you the whole story. It is vital you know your rights under California law when it comes to recovering and calculating damages involving preexisting conditions.
Did an Automobile Accident Cause a Preexisting Condition to Worsen?
California law does not allow plaintiffs to recover for any physical or emotion condition that they had before the incident in question occurred; however, if a plaintiff had a physical or emotional condition worsened by the defendant’s wrongful conduct, the jury must award damages that will reasonably and fairly compensate them for the effect on that condition. This right is stated in the applicable jury instruction, C.A.C.I. 3927. Often the jury instructions are an excellent place to look for authority as the controlling law. After all, this is what a judge will tell the jury is the rule, and the instructions always include citations to the supporting authority.
In our example above, the injury is physical; however, you may also recover damages for worsened preexisting mental conditions. For example, if a person suffers from Post-Traumatic Stress Disorder (PTSD) due to a previous incident and an automobile accident contributes to increased suffering from the disorder, the plaintiff may be entitled to recover damages. The accident caused the PTSD to worsen.
To pursue compensation in these cases, you must be able to show that your preexisting condition was made worse by the car accident. You will have to prove the accident was the likely cause of or was at least a substantial contributing factor in your increased physical pain or mental suffering. The way to prove this is with a doctor’s opinion—either one of your treating doctors, or a hired expert.
The Eggshell-Plaintiff Doctrine
Another guideline that supports plaintiffs with preexisting conditions in automobile accident claims is the eggshell-plaintiff. California is one of many states that abide by the eggshell-plaintiff doctrine. This doctrine establishes that the defendant takes the injured plaintiff as he is found. In other words, if due to some preexisting condition, the victim is more susceptible to injury, the defendant is not free from liability. It protects the rights of the injured whose preexisting condition makes them particularly susceptible to injury. Defendants will almost always try to use a pre-existing condition as a way to shift responsibility for harm incurred, but our law recognizes that they are 100% responsible for harm caused, even when a less-vulnerable person would not have been harmed. See C.A.C.I 3928.
In an eggshell-plaintiff case, damages are determined by the full amount of money that will reasonably and fairly compensate the plaintiff for all damages caused by the wrongful conduct of the defendant, even if the plaintiff was more susceptible to injury than a normally healthy person would have been, and even if a normally healthy person would not have suffered similar injury. Although an eggshell-plaintiff may have suffered more damage than a healthy person, they must still receive compensation that would reasonably and fairly compensate them for damages caused by the defendant.
In the eggshell-plaintiff case, you will have to provide supporting evidence—a doctor’s opinion–that you were more susceptible to this injury due to your preexisting condition.
Calculating Damages with Preexisting Conditions
When filing a claim for damages from an automobile accident involving a preexisting condition, it is always important to disclose the preexisting condition; however, be very careful in how you disclose those injuries to the insurance company. Dealing with complicating issues such as these make it less feasible to handle a case without a lawyer. Really, only a straightforward, relatively low-value case should by done on a DIY basis. You will need to gather the following support:
Witnesses: In cases involving aggravation of preexisting conditions or an eggshell-plaintiff, it is vital you have witnesses who can provide evidence that the accident made your condition worse. Medical Providers should review all available evidence in order to assess any factors that may contribute to aggravating the preexisting condition. This is true for both physical and mental conditions. Family and friends may also provide supporting statements regarding your condition prior to the accident and after. But these people are always biased in your favor. The very best witnesses in many cases can be co-workers. Co-workers you would bring in are still biased—they probably like you—but they typically are less biased than a friend.
Medical Records: If you had a preexisting condition prior to the accident, you will want to make clear to the insurance company these current symptoms did not exist prior to the accident. Contact the doctor that treated you when the old injury occurred. Gather documents that state when you were treated and when you were released from treatment. Records that confirm your previous treatment was successful will help support your claim. Be sure to review your records for any inaccuracies. Medical records and bills are a vital piece of evidence in determining your damages claim. It is vital that your current treatment records reflect a causal relationship between the accident and your injury.
Insurance Company Forms: Often the person assigned to your insurance claim will ask you to sign a medical records and bills release. Be aware these forms may entitle them to review all of your medical history. With a preexisting condition, the adjuster may use your own medical history against you. While you must provide the insurance company with medical bills and records to support your claim, you have the right to limit their access to your personal health information. If you sign a release form, it should be limited in time and scope, e.g., only good for 60 days, only applicable to records going back to a certain date, etc.
Contact an Attorney
Accidents involving preexisting conditions may be more complicated than other types of claims. Contacting a car accident injury lawyer with experience in this area of law is your best choice for success.
Since 1995, Boone Callaway has built his reputation by caring about his clients and advocating for their rights. Callaway & Wolf attorneys have recovered millions of dollars for clients throughout Northern California. They have won countless awards, making them the lawyers who other attorneys recommend. Schedule a free, no-obligation consultation today by calling 415-541-0300">415-541-0300.
Boone Callaway is a personal injury & medical malpractice lawyer in San Francisco who has been working with clients in the Bay Area for over 25 years. Mr. Callaway is one of only a few personal injury litigators in San Francisco who is a Super Lawyer, AV Rated and is also a member of ABOTA – American Board of Trial Advocates.