It has been estimated that every driver will get into an automobile accident at least once in their lives. It is no surprise then to learn that hundreds of thousands of car accidents happen every year in Florida alone. These accidents can range in serious results from fatalities to light scratches. Accident claims can become complicated when the victims have suffered injuries in the accident. Claims can become even more complicated if the injured parties have “pre-existing conditions” or “pre-existing injuries” from before the accident.

What is a Pre-Existing Condition or Pre-Existing Injury?

A “pre-existing condition” or “pre-existing injury” is a medical condition or injury that the accident victim already had before the motor vehicle collision occurred. The law about pre-existing conditions is that they cannot be the basis for an injury claim after an accident unless the accident made the conditions or injuries worse.

Common Types of Pre-Existing Conditions

Pre-existing conditions can include arthritis, herniated discs, degenerative disc disease, spinal cord injuries and head, neck and shoulder injuries. If it can be proven that your general condition has been worsened by the accident, then the at-fault driver will be held responsible.

Impact of Pre-Existing Conditions on an Accident Insurance Claim

Sometimes accident victims believe they do not have a claim if their injuries are only an aggravation (or worsening) of a pre-existing medical condition or injury that they already had before the motor vehicle collision occurred. However, that’s not the law in Florida (or most states). In Florida, the law is clear in these situations: you are entitled to recover damages for the aggravation, but you cannot recover for the pre-existing condition or injury itself. In other words, you have a claim for the difference between how you were before the accident, even with the pre-existing condition, and how you are after the accident with the aggravation. In the Standard Jury Instruction that is read to a jury in a court case, the principle of law is expressed this way:

“If you find that the (defendant(s)) caused a bodily injury, and that the injury resulted in [an aggravation of an existing disease or physical defect] [or] [activation of a latent disease or physical defect], you should attempt to decide what portion of (claimant’s) condition resulted from the [aggravation] [or] [activation]. If you can make that determination, then you should award only those damages resulting from the [aggravation] [or] [activation]. However, if you cannot make that determination, or if it cannot be said that the condition would have existed apart from the injury, then you should award damages for the entire condition suffered by (claimant).”

This jury instruction is something that the insurance companies do not tell the injured victim. This instruction is favorable to accident victims and keeps the insurance company from trying to claim that the existence of a pre-existing condition means that the claimant cannot recover anything at all.

An experienced lawyer will be able to counter-attack any schemes by the insurance companies and prove your condition was caused by the accident.

The “Eggshell Skull” Theory

The eggshell skull rules (or thin skull rule) is a form of the “you take your victim as you find him” rule. In accidents, this rule holds one responsible for all consequences resulting from his or her negligence leading to the injury to another person, even if the victim suffers an unusually high level of damage (for example, due to a pre-existing medical condition). The term implies that if a person had a skull as delicate as the shell of an egg, and the negligent party (who was unaware of the condition) injured that person’s head, causing the skull to unexpectedly break, the defendant would still be held liable for all damages resulting from the wrongful contact, even if the tortfeasor did not intend to cause such a sever injury.

Although claimants cannot recover money damages for old injuries that existed before the accident, the “Eggshell Skull Theory” still applies to new injuries. Negligent drivers or people who injure others must take their victims as they find them, whether the victims were healthy and with minimal pre-existing injuries, or those with multiple pre-existing conditions that caused them to suffer an even more severe injury after the accident.

Example: Proving an aggravation is typically done with a detailed and critical review of medical records. For example, if you injured your knee in a previous car accident five years ago, but you have not complained of pain in the knee for the last three years, a good argument can be made that the knee pain you are experiencing now after a recent accident is not due to your old injury; but is due to the recent car accident. In many cases, we obtain the testimony of a treating doctor to prove that the accident exacerbated or worsened the pre-existing condition.

The Burden of Proof is Still on the Injured Claimant to Prove the Extent of the Aggravation

For those with pre-existing conditions, the insurance company will try and argue that the injury was not caused by the accident, but by the pre-existing condition. However, it is not the insurance company’s burden to prove your injuries were pre-existing and not caused by the accident. It is the injured claimant’s burden to prove that the injuries were made worse by the accident.

In an insurance claim or in court, your attorney will have to be able to prove that you deserve financial compensation for being injured in the accident. The job of the lawyer in a case with pre-existing conditions is to prove: (1) that the injury from the accident is worse because of the pre-existing condition and (2) that the aggravation was directly caused by the accident.

If you haven’t suffered a new serious injury in the accident, then any condition you had before the incident must be worse to make a recovery. The insurance companies will try to prove that you had pre-existing conditions that were not made worse by the accident and that no new injuries occurred either. If they are convincing, they will not have to pay you the compensation you should have coming to  you.