Comparative Negligence

as it Relates to Pre-existing Injury

Attorneys will request medical records for cases, but may not know if crucial medical records are missing. A claimant’s medical record needs to include the complete medical history. A claimant may not be honest about reporting pre-existing conditions/illnesses for fear of losing their case. A claimant’s underlying condition/conditions may play a critical role in substantiating causation. A legal nurse consult can ascertain there are no crucial missed diagnoses buried within lengthy medical records.

Comparative Negligence as it Relates to Pre-existing Injury

1. Medical bills and accounts related to injuries received during the accident;
2. Receipt of prompt medical attention from professional service providers;
3. Emotional trauma, including pain and suffering, experienced since the accident;
4. Loss of past, present, and future earning potential;
5. Severity, condition, and impact of injuries received during the accident;
6. Severity of accident and substantial proof against at-fault party;
7. Cost estimates of future medical treatment such as physical therapy, psychological consultations;
8. State tort caps or limitations on damages associated with personal injury cases;
9. Prior and anticipated pain and suffering;
10. Disability resulting from the injury;
11. Prior and anticipated medical expenses;
12. Anticipated wage loss resulting from the injury; and,
13. Disfigurement resulting from the injury.

The insurance company or the at-fault party’s attorney may try to argue that a client was more prone to injury and therefore was partly or wholly responsible for their own injury. They may also claim that another pre-existing condition such as post-traumatic stress disorder (PTSD) led the claimant to drive in a more distracted or erratic manner, contributing to the accident.

Common Types of Pre-Existing Injuries

Many difficult claims involve soft tissue injuries that are alleged to have occurred during a low-speed automobile impact. While any injury or condition that existed prior to an accident is a pre-existing one, there are certain types that are more common than others. These common types of pre-existing injuries often include:

1. Slipped disks, herniated disks, spinal stenosis, or degenerative disk disease;
2. Intervertebral disc bulges/herniations within the cervical, thoracic, or lumbar spine;
3. Rotator cuff and labrum tears;
4. Carpal tunnel syndrome;
5. Meniscus and ligament tears within the knee joint;
6. Temporomandibular joint injuries;
7. Joint problems in the knees, elbows, or hands; and/or
8. Head trauma such as previous concussions or a traumatic brain injury (TBI).

These are just some of the common types of injuries or trauma that an accident victim could have already sustained or been living with before the time of the accident. The presence of significant preexisting degenerative conditions may change the tolerance of a specific individuals joints or tissues to applied forces.

Evidence used to support claims and prove that the other party is fully or mostly responsible includes

1. Police reports;
2. Video surveillance;
3. Photographic evidence from the scene;
4. Eyewitness statements;
5. Accident reconstruction diagrams; and/or,
6. Statements from accident reconstruction experts.

Locating Qualified Experts

A Legal Nurse Consultant can assist in locating qualified experts for cases. For example, a Biomechanical/Biomedical Engineer Expert may be the best expert for the proper analysis of a low-speed impact case. The presence of significant preexisting degenerative conditions may change the tolerance of a specific individuals joints or tissues to applied forces, which is precisely why a properly trained Biomechanical Engineer evaluates the personal tolerance levels of a clamant during the incident. This expert is specially trained to be able to evaluate the potential causal relationship of both the magnitude and the direction of forces applied to the claimant. Oftentimes this expertise is incorrectly assigned to a treating physician who is ill-equipped to properly analyze the incident. Although doctors may have knowledge of the diagnosed injuries, they lack information, expertise, and a sufficient technical basis to evaluate the nature of the collision environment which is necessary to provide an opinion regarding injury causation. A Legal Nurse Consultant can locate this expert for a case.