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If you’ve been injured in an accident and are pursuing compensation for your injuries, there are a lot of factors that go into what the defense is responsible for paying. One example of this is the fact that New York uses the theory of comparative negligence to determine liability. That means that even if, for example, you were 50% at fault for an accident the other party is still responsible for 50% of the damages resulting from the injury. You can establish any percentage of fault less the 100% and collect for the other party’s proportionate share of fault. But what if you had a pre-existing injury, that has worsened because of the accident caused by the other party? Who is liable in this case?
It’s always the goal of the defense to pay out as little as possible. When the injured party has a pre-existing condition, the defendant is going to use that to their advantage and claim that they do not need to pay, because you were already living with pain. While it’s true that you would receive less for an aggravation of a prior injury, it is still possible to pinpoint the defendant to new injuries despite the pre-existing condition.
For example, let’s say you’ve injured your back in the past. You slip and fall on someone’s property, and you’ve injured your back again. It may be that the previous back injury was aggravated, and the defense wouldn’t have to pay as much since they weren’t at fault for the first time you injured your back. However, let’s say you ruptured a disc in your back that wasn’t ruptured when you first injured your back. You can now prove that the defendant caused an entirely new injury on top of the aggravated old injury, and would be required to compensate.
If you had a joint injury like a torn meniscus in the knee, you may still be able to prove liability for any ligament injuries. And just because you have a pre-existing injury doesn’t mean it automatically plays a role in the case. If the previous injury is a completely different part of the body, it will have no bearing on your current case.
Sometimes there is no way to prove that any new injury was formed. Even if that is the case, you are entitled to compensation for an exacerbation of a pre-existing condition. The total settlement is going to be a lot less than if the injury was new and caused by the defense.
The keys to successfully handling a case with a pre-existing injury is to understand that you are still entitled to money. The most important part is being honest about the injury. You need to be honest because there are likely many records in your medical history that will show that have had an injury. Additionally, it is very important to be clear on how the new injury has worsened your prior condition. An effective strategy from the start will be important.
Finally, if the previous injury happened a long time ago, that works more in your favor as well. The more remote in time the related injury is to your current accident, the easier it is to prove the current accident is the pain causing then event. For example, if you had a car accident in 1992 and injured your back but there has been no treatment for years. It is easier to get the full value of your injury as opposed to if you had the prior accident in 2019. You could make a case that the person has fully recovered, and an injury to the same part of the body was caused by the defendant.
Clearly, there are a lot of factors that go into how these pre-existing injuries will play a role in your personal injury case. A lot of strategy and research is involved to counteract the defendant trying to minimize their liability. This is why it is so important to not just hire any attorney that may try to tackle a personal injury case. Our previous blog talks about what to look for in a qualified personal injury attorney .
Steven Palermo is the managing partner for Palermo Law, Long Island’s Personal Injury Law Firm. He has been helping people receive compensation for their injuries for over 21 years. He focuses on cases involving car accidents, truck accidents, construction accidents and slip and fall injuries.
His book The Ultimate Guide to Handling New York Car Accident Claims details the ins and outs of a car accident claim in a simple, easy-to-read manner.