Sometimes people injured in an automobile collision think they do not have a claim if their injury consists of an injury or medical condition that they already had before the automobile collision occurred. However, that’s not the law in Virginia.
A preexisting injury may cause an injured person to be in a weakened condition, making him or her more susceptible to injury and cause an aggravation of a preexisting condition. If the injured person files suit, the Defendant must take Plaintiff in the condition Plaintiff was in at the time of the accident.
In Virginia, you are entitled to recover for the extent of the aggravation, but you cannot recover for the preexisting condition or injury itself. Following is the model instruction that is read to the jury at trial:
“If you find that the Plaintiff had a condition before the accident that was aggravated as a result of the accident or that the preexisting condition made the injury they received in the accident more severe or more difficult to treat, then if you find your verdict for the plaintiff, the plaintiff may recover for the aggravation and the increased severity or difficulty of the treatment but the plaintiff is not entitled to recover for the preexisting condition.” 1
The insurance companies often do not let injured claimants know that they are entitled to recover for an aggravation of a preexisting condition. Instead, some insurance adjusters, knowingly or unknowingly, choose to ignore that the jury instruction above exists, and they attempt to prevent a claimant from pursuing a claim by saying that the existence of a preexisting condition means that the claimant cannot recover anything. This simply is not true.
So, if you had a condition that did not hurt before the accident, and that same condition causes pain after the accident, you may have the right to claim an aggravation of a preexisting condition. If you were under a doctor’s care for the preexisting injury at issue, the evidence to prove the existence and extent of any aggravation of a preexisting injury can be proven through your doctor’s testimony and your medical records. If you were not receiving medical treatment before the collision for the injury at issue, the evidence to prove the aggravation of a preexisting injury will include the lack of medical records for treatment of the preexisting injury.
There are a lot of different scenarios and factors involved in proving an aggravation of a preexisting condition, but one should never be deterred from filing a claim just because the insurance carrier told you that you are not entitled to do so.
If you find yourself in a situation where you are unsure as to whether you have a viable claim, the attorneys of Altizer Law, P.C., are here to answer your questions.
1 See Virginia Jury Instruction 9.030