You were just involved in an accident due to someone else’s negligence and are now injured. While preparing to make a demand for compensation against the negligent party, you begin worrying about how evidence of a previous injury to the same body part might negatively impact your claim. You wonder:
Is it still possible to recover damages?
Yes. If you were injured due to someone else’s negligence, they are responsible for the extent of the damages they caused. This means that while they may not be responsible for all of your pain and physical limitations if those conditions existed before the accident, they are responsible for the extent to which your injuries were aggravated or you were further damaged by their negligence.
Typically, if you have a preexisting injury to the same body part that you are alleging suffered injury as a result of the other party’s negligence, the defense will try to argue that there is a lack of causation due to a pre-existing injury. In more basic terms, they will essentially argue, “I did not cause your injury. You had this injury before the date of the accident.”
In order to prevail, you will have the burden of proving by a preponderance of the evidence the extent of the damages that were caused by the other party’s negligence, which you did not have previous to the accident. You will generally need to obtain an expert medical witness to examine your medical records and, sometimes, conduct a physical examination called an independent medical evaluation (IME). After conducting a records review or IME, the medical expert will generate a report detailing the extent to which your current injuries were caused by the negligence of the other party in the accident in question.
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Will the other party find out about your previous injury?
Yes, probably. You should not withhold information about previous injuries. By filing a personal injury claim, you put your medical history in question, allowing the other side to obtain copies of your medical records during the discovery phase of your case. If you untruthfully deny a previous injury while under oath during a deposition or at trial, you will be guilty of perjury, which is a very serious offense. In addition, it is very likely that the judge may find that you are not a credible witness, causing you to lose your personal injury case.
The best way to handle a personal injury case involving a body part that has been injured before is to hire a skilled and experience personal injury lawyer and face the issue head on. It is much better to address the situation specifically by providing great detail about how your symptoms worsened and your limitations increased after the accident in question to demonstrate what portion of your injury was directly caused by the other party’s negligence.
If you have been injured due to someone else’s negligence, contact the personal injury lawyers at our firm today for a consultation. We are committed to working hard to obtain the best results possible for our clients.
Call or text (646) 692-0204 or complete a Free Case Evaluation form