by Michael Burman
Every personal injury case starts with a date of injury. The way trauma causes injury to the human body is called the “mechanism of injury.” In a car wreck, the mechanism of injury is the impact from the collision causing stress and strain to various body parts. Trauma from the mechanism of injury results in symptoms of pain. The doctor determines a diagnosis to explain the cause of the pain. Treatment begins to help heal the pain.
A pre-existing condition is a symptom, diagnosis or treatment that: (1) started before the date of injury, and (2) is similar to the symptom, diagnosis or treatment caused by the mechanism of injury on the date of injury.
Back pain is the most common example of a pre-existing condition. Before the date of injury, most people have back pain in some form or fashion. So the question becomes, is the back pain after a car wreck, the result of a pre-existing back condition before the car wreck? What injury actually resulted from the mechanism of injury?
In Kentucky and Tennessee injury law, a party claiming to be injured by another party's negligence, must prove a causal connection between the negligent act and the injury claimed. Issues regarding this causal connection, are often referred to as “medical causation issues.” These are often the most complicated issues in a case.
A negligent party is not required to pay damages for a condition that pre-existed the date of injury. If the negligent party can show the symptoms and treatment are 100% the result of a pre-existing condition, then the negligent party is not responsible for any pain and suffering damages to the injured party.
And so, dealing with pre-existing conditions means accurate reporting to the doctor and the attorney handling the case. Many clients are not good historians and so, at Burman Law, we take time to help our clients remember doctors and treatment over years and years. We search past medical records for clues to identify pre-existing conditions.
“Over-generalization” is the most common tactic by insurance adjusters in cases involving pre-existing conditions. The adjuster finds a mention of pre-existing conditions in the medical records and then the adjuster opines that all similar “date of injury complaints” are 100% attributable to the pre-existing condition. An insurance adjuster is not qualified to give expert medical opinions.
The second most common tactic by the insurance adjuster is “playing doctor.” The adjuster gives opinions about how the pre-existing condition is causing the symptoms, diagnosis or treatment that occurs after the date of injury. An insurance adjuster is not qualified to give expert medical opinions.
At Burman Law, pre-existing conditions are identified for extent and duration, cause, diagnosis and treatment. We determine how these pre-existing conditions truly impact medical causation issues. For example, a person with back pain may be more easily injured by trauma from the mechanism of injury. People with pre-existing conditions, especially older people, have a harder time healing from a traumatically caused mechanism of injury. Arthritis may be aggravated by the mechanism of injury. And so, a good understanding of the medical-legal issues involved, along with an understanding of the client's medical history, is crucial to confronting insurance adjuster tactics from “over-generalization” and “playing doctor.”
Mike is a death and injury lawyer with 25+ years of experience helping hundreds of accident victims against at-fault drivers and commercial operators of all types. Other lawyers often call Mike for advice with their personal injury lawsuits and wrongful death lawsuits. Once you begin your free case evaluation with Mike, you will know the legal advice is coming from an experienced attorney who knows the law and wants to help you overcome a difficult situation in your life.