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Pre-existing Injuries

It is a mistake to withhold from an insurance company an injury that occurred before an accident, thinking it might compromise a legal claim. Pre-existing injuries do not compromise a car accident injury claim when a victim suffers aggravation of a pre-existing injury due to the car accident.

According to the Eggshell Skull Rule, or Eggshell Plaintiff Doctrine, the party at fault (defendant) is responsible for all consequences and must bear the risk of the vulnerability of the injured victim (plaintiff). If the victim fully discloses a pre-existing injury, it may actually result in more compensation if the damage from the current injury is more severe due to the weakness caused by a previous injury.

You should assume that an insurance company will inquire about your prior accidents and seek your medical records. If you conceal a pre-existing condition, the insurance company may make it appear that you are exaggerating or fabricating your symptoms. A judge may even require you to pay attorney fees to the defendant or may prevent you from presenting certain evidence or raising certain issues.

The Law of Pre-existing Conditions in Oregon

There are three types of pre-existing conditions:

  1. Conditions that are present, but do not cause pain before a new injury
  2. Conditions that are present, cause pain, and are aggravated by a new injury
  3. Conditions that are present, cause pain, and exist in the same form after a new injury as before

According to Oregon law, an injured person with a pre-existing condition is entitled to compensation by the negligent party for damages if a new injury-causing accident causes new pain or aggravates pain from a pre-existing injury.

The Law of Pre-existing Conditions in Washington State

Washington State Law recognizes two types of pre-existing conditions:

  1. Active = Symptomatic (with symptoms)
  2. Inactive = Asymptomatic (without symptoms)

If underlying symptoms (pain, suffering, or disability) from a previous injury or condition are inactive (not present) at the time of a new injury, the accident causing the new injury is 100% at fault, even if the new injury aggravates the pre-existing condition and makes it active.

As with Oregon law, if underlying symptoms from a previous injury or condition are active (present) and of the same nature at the time of a new injury, then the pain that the injured is feeling from the previous injury must be apportioned to the pain that the injured is experiencing after the new injury-causing accident. For example, 30% of symptoms may be attributed to the previous injury, and 70% of symptoms may be attributed to the new injury.

Survivors of the Deceased May Seek Wrongful Death Compensation

When a person dies in a motor vehicle accident due to the legal fault of another person, the survivors of the deceased may seek compensation for the loss of that person, including lost wages from the deceased, lost companionship, and funeral expenses. A survivor may be an immediate family member, distant family member, life partner, financial dependent, putative spouse, or any person who has suffered financially.

Damages in wrongful death lawsuits vary from state to state and may be capped or limited in the amount and type of damages. Damages may include:

  • Economic damages (economic loss and medical and funeral expenses)
  • Non-economic damages (survivors’ mental anguish and loss of companionship or care)
  • Punitive damages (designed to punish)
  • Interest and attorney’s fees (interest on damages from when incurred to when collected)

There is a time limit (called the statute of limitations) on bringing a wrongful death lawsuit that begins when the harm is discovered (date of discovery). Generally, a wrongful death lawsuit must be filed within two years of the date of the misconduct that caused the death. With minors, persons with a mental disability, and in cases involving fraud or intentional acts, the time limit may be longer.