Pre-existing conditions or old injuries are often aggravated in auto accidents like car, truck and pedestrian accidents. For instance, a driver who is rear-ended at a busy intersection may reinjure their back or neck, or a pedestrian crossing the street who gets hit by a car may reinjure their knee. Can an injured party who suffered an aggravation of an old injury still succeed in a lawsuit against the at-fault party?
Delaware Law Allows Claims for Aggravation of Pre-Existing Injury
In personal injury cases like car accident cases, Delaware courts recognize the right of an injured plaintiff to make a claim that the accident caused an aggravation or flare up of an old, existing condition. However, the plaintiff is entitled to recover only for the aggravation or worsening of the preexisting condition.
Differentiating the Injuries – The Importance of Medical Records
The plaintiff in an auto accident lawsuit bears the burden of proof; this means proving that the accident caused specific injuries. In pre-existing injury cases, the key is differentiating the injuries and showing that the current accident caused the already existing injury to worsen. Medical records from the old injury will be very important and must be compared to current medical records. To prevail upon the claim for aggravation of a pre-existing injury a doctor or chiropractor must express an opinion, that is based on a reasonable medical probability, that the new auto accident caused an aggravation of the pre-existing injury.
Also, it is important to identify at what point in time the individual ceased treatment for the old injury. If the individual stopped treating for the old injury just months before the current accident, it will be more difficult to prove that the current accident caused the old injury to get worse.
Comparing Diagnostic Test Records
Ideally, treatment for the old injury included diagnostic testing, like an x-ray or MRI, which can then be compared to a current x-ray or MRI. For example, a driver is injured in a car accident in Delaware and suffers a neck injury. The driver previously injured his neck several years prior and at that time, obtained an MRI showing a herniation at C4-5. As a result of the most recent accident, the driver’s MRI reveals a larger herniation at C4-5 as well as herniations at C5-6 and C6-7. Here, the MRIs clearly show that the second accident resulted in a larger herniation as well as new ones.
In addition to medical records, developing the pain and suffering claim requires proving that the injured plaintiff’s life activities have been affected. Therefore, it may be beneficial to present testimony of family, friends, co-workers, neighbors, etc., who would be able to provide a before and after picture.
Contact our Delaware accident lawyers for a free case review. Firm partner Martin Knepper has been handling auto accident cases for over 30 years. (302) 658-1717
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