Pre-Existing Conditions and The Eggshell Plaintiff

One of the biggest defenses insurance companies raise in injury cases stemming from car accidents is the pre-existing injury defense.  In any significant injury case, the insurance company and/or defense attorney will request years of prior medical records in an attempt to locate any record which at all suggests a previous injury, or any treatment even remotely similar to current complaints of the injured plaintiff.

In Nebraska, the law is that a defendant takes the plaintiff as they are, and the relevant Nebraska jury instruction on the issue specifically states that if damages from the accident cannot be separated from damages which existed prior to, defendant is liable for everything.

                Nebraska Jury Instructions 2d Ed. – 4.09

“The defendant is liable only for any damages that you find to be proximately caused by the collision.

If you cannot separate damages caused by the pre-existing condition from those caused by the collision, then the defendant is liable for all of those damages.”

Make sure to discuss any potential issues concerning pre-existing injuries with the attorney handling your accident injury claim. Depending on the circumstances, there are often times when your injury lawyer can actually use the previous injury to your advantage.