How the pre-existing injury defense works - Texas car accident law.

Insurance companies loves nothing more than to blame your car accident injuries on some past experience. You see, the insurance carriers who represent bad drivers who hurt people have two main methods for avoiding their responsibilities: they can either argue the accident wasn't their driver's fault, or they can fight you over the value of the case. One of the most devious ways for them to do the latter is by claiming that your injuries aren't related to the accident. This can be summarized as, "Even though our insured driver caused the accident, we don't think that the accident caused your injuries," or, in other words, they can accept liability for the wreck while not accepting liability for the consequences of the wreck.

Insurance carriers have a few methods to accomplish that goal, but the best way for them to disclaim liability for your injuries is on the basis that you had a preexisting injury.

If they can successfully show that you were already injured before the accident, then they can deny payment. The problem is that many people have old injuries (sports injuries, past work injuries, etc.) that don't bother them or be in less than peak physical condition due to age, and the insurance carrier will try to unfairly claim that their newfound pain is actually owed to the old injury and not the new injury. It's a dirty tactic, but they do it all of the time. In this article we'll explain how this strategy works and our knowledgable Texas car accident attorneys can help you win in spite of the insurance carrier's protestations.

Questions Answered on This Page:

• What is the pre-existing condition defense, and how is it used in a car accident case?
• How could a pre-existing injury or condition impact my car accident case?
• What types of pre-existing injuries do car insurance companies usually accuse victims of having?
• What will my attorney do to defeat this defense tactic?

What exactly is a "preexisting injury?"

We've all incurred some bumps and bruises in our day. Some of us have even experienced serious medical conditions or injuries, but the bottom line is that those injuries usually heal. When an insurance carrier tries to argue that you're suffering from a pre-existing injury, they're not saying that you suffered some injury in the past. They're saying that you've suffered the exact type of injury as you're now wanting them to pay for, and they're saying that you're not telling the truth about how the injury really happened.

But the thing is, sometimes it's appropriate for an insurance carrier to assert this defense and sometimes it's not. For instance, if Bob suffers a hernia while lifting weights and then he gets in a car accident a few days later and tries to blame the accident for his hernia, that would be an example of when an insurance carrier rightly should argue that his injuries are not their fault. But, if Bob suffered a hernia in 1993 and had it repaired successfully, then he gets in an accident in modern times and suffers a new hernia, it would be unfair for the insurance carrier to try to deny the claim on the basis that it is a pre-existing injury, but that's what insurance carriers try to do every day.

Here are some examples from our 25 years of practice that have run the gamut:

• Actual preexisting condition: We had a client some years ago who came to us after a car accident complaining of severe back pain. We sent him to a specialist who confirmed that, in fact, he had a herniated disk. We then sent for his full medical records and learned that he'd had a herniated disk for several years and that the accident had not exacerbated the problem. Naturally, we couldn't help that gentleman.
• Arguable preexisting condition: One of our clients experienced sharpening neck pains after her car accident. She told us that she'd had neck problems before and had seen a chiropractor for a year or so. Our specialists diagnosed her as now having a separate, new neck problem from the one she'd endured prior to the accident. We had to fight it out with the insurance company to prove this, but they ultimately relented and compensated our client.
• Bogus preexisting condition: A client hit by a delivery driver suffered serious back pain. Our specialists assessed him with several back conditions. The insurance company tried to argue that he'd had these same problems for years. Through much litigation, we were able to prove that their claims were wholly unfounded.

Ways an insurance company will try to prove preexisting conditions:

The insurance carrier comes into the knowledge of a preexisting condition in two ways:

• You volunteer the information to them
• They search for evidence of a past medical condition, usually by looking through your records

Naturally, your best bet is not to communicate with an insurance carrier at all (that's our job) so that you can avoid the first issue. The second method usually becomes an issue during discovery. Discovery is the legal process whereby both parties beseech the court to grant them access to certain information that is allegedly necessary to properly evaluate the case. For instance, the insurance company's lawyers will ask the court to grant them permission to get your medical records for the past 20 years. Naturally, this is an overreaching request since any injury that old is going to be irrelevant to your current accident. But the whole idea is that the carrier is on a hunting expedition whereby they are looking for anything, however weak, they can build an argument upon.

Another important point is that most car accident victims who find themselves dealing with this issue have no one to blame but themselves. What we mean is that many people try to handle their car accident case by themselves, thinking that they'll save the expense of attorney's fees. In doing so, they're treating the very serious legal case like it's something other than a very serious legal case. Folks, Texas law puts the burden on you to prove all allegations against the person who you intend to get money from.

Consequently, the notion that the other driver's insurance carrier has to pay you fair compensation is a myth. In fact, what Texas law says is that if you want compensation, you must prove that they are at fault and prove the value of your losses. But when people with perfectly good cases subject themselves to the insurance claims process (which was invented by insurance carriers, by the way), they often find that the insurance carrier makes a seemingly innocent request. They'll say, "I'd love to settle with you, but I'm going to need to find out how much we owe you first. Would you mind signing a medical record release?" And right there, by saying yes, the injured victim just opened the city gates and invited in the Trojan Horse. Insurance carriers don't need that kind of access to anyone's medical records. Allowing them that kind of access is case suicide.

Please consider that there is a better way. Hire a lawyer who knows what he's doing, and the value his services will add to your case will usually more than pay for any fees you'll have to pay. Case in point, if you create a scenario where the insurance carrier can take something in your records out of context, the damage done by allowing them to argue that you have a pre-existing injury will cost you more than any attorney ever could. And once the damage is done, it's hard for an attorney to then jump in and fix the problem. It's best if we're allow to handle your case from the very beginning so that we can make sure we're in the best position to deal with any insurance company tactics that may arise, or, better yet, work to keep the insurance carrier from being allowed an opportunity for such nonsense.

Do they actually think that will work?

Probably not. Most insurance carriers don't actually believe that an old high school football injury has any bearing on the neck injury you've sustained in a car accident (for example). The whole idea is not that their arguments have to actually hold water, just that it gives them additional ammunition to broker a settlement. They're playing the "what if" game with any defense they use. However, without adequate representation from a car accident lawyer who is experienced in defeating claims such as these, their otherwise far reaching arguments can actually be used against you successfully. Call us 24/7 to discuss your case with an experienced attorney at (855) 326-0000.

Commonly, we've also seen the defendant party use one of the following defenses to combat your car accident case. Click on any of the articles below to read more:

• Failure to show proximate cause
• Act of god
• Failure to keep lookout
• Failure to apply brakes
• Fault of a third party
• Unavoidable collision
• Insurance policy doesn't apply