Sunday, December 16, 2012

The Effect of Pre-Existing Injuries on your Personal Injury Claim


Below is an article by Keith Findlay of Baca, Findlay, & Dziak, LLC. Keith handles a variety of legal issues, but focuses heavily in personal injury. If you've been injured, Keith is the right Albuquerque personal injury attorney to help with your case.

The Effect of Pre-Existing Injuries on your Personal Injury Claim

The law does not hold a person responsible for injuries that existed prior to their supposed act of negligence that led to their being liable for such damages. Said another way, if you have a “trick knee” from an old skiing accident and one day you suffer a personal injury due to a treadmill malfunction, you can sue the gym or treadmill manufacturer for your injuries and expenses but you cannot reasonably expect to recover for a surgery to completely repair your previously injured knee. The law will only require that a defendant (or tortfeasor) compensate the plaintiff or injured party for the expenses associated with the injuries that stem directly for their act of negligence.
An area within New Mexico personal injury law that the concept of exclusion of recovery for pre-existing injuries is very active is that of injuries involving soft tissue damage. It is common to have whiplash, back strain and other such soft tissue injuries in car accidents. While injuries such as broken bones are easily attributable to a specific event, soft tissue damage is far more difficult to reliably pin point as far as date of injury is concerned. If the plaintiff in such a case has a documented history of previous neck or back problems, it suddenly becomes far less clear when the specific injury to the neck or back actually took place. This creates significant “wiggle room” for defense lawyers to attempt to minimize the damages attributed to their client.
Naturally, there are varying shades of grey in this concept for attributing liability only for direct injuries caused. If, say, the plaintiff had a history of back problems but had not needed treatment of any kind for many years prior to the event in question the connection between the event and the injury is more clear. However, if the plaintiff had been seeing a doctor regularly for the months immediately preceding the event, then the causation of the back injury is put in question. Perhaps this plaintiff was injured in the car accident, but they are trying to get extra money to treat an injury they had previously suffered. 
The issue of pre-existing injuries in personal injury cases can further be muddled if you consider that many people suffering from such soft tissue injuries can go long periods without feeling pain or needing treatment, only to later find that their injury had caused significant degeneration of the tissue and even greater injury, only much delayed. Even if the plaintiff had not been suffering pain or undertaking treatment immediately prior to the accident, it does not mean that they did not have such degenerative tissue problems from their previous injury, and thus, they may not be compensated for injuries to their neck or back. Because the injury pre-existed, even though it had not been treated for years, means that it was not legally “caused” by the event and thus the plaintiff cannot recover for that soft tissue injury.
It can be treated as a general truth that an injured party will not receive full, 100% compensation for damages relating to their complaint if there existed previous injuries or damage because the defendant would no longer be directly and wholly liable. The practical effect of this is that most personal injury cases that involve at least some pre-existing injuries will settle, or even be adjudicated, at a percentage of the total damages suffered by the plaintiff. If you’ve been injured in an accident, of virtually any kind, do not delay. Speak with your local personal injury lawyer about your situation and learn more about your possible recovery/compensation options. 

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