There are few people who do not carry the residue of some prior injury or illness dating from earlier in their lives. Many of us have suffered a broken bone as a child or have work or sport-related injuries. Some people may be dealing with more serious health problems or chronic medical situations that require ongoing treatment.
You may be concerned that having pre-existing medical issues before being involved in an accident may preclude you from claiming compensation for your accident injuries. The good news is that this is not the case. Having pre-existing health concerns doesn’t mean that you cannot receive a damage award if you suffer new injuries in an accident or if a pre-existing condition is made worse.
The Basic Objective of Damage Awards
The basic principle guiding damage awards is that they should seek to put the injured person back into the position they were in before the injury occurred, to the extent that money can do so. However, damages must be reasonable both to the plaintiff and the defendant. This means that damages paid to an accident victim should not provide them with a windfall that compensates them for more than the loss actually caused by the accident.
If your case ends up in court, a judge will review your state of health before the accident compared to your current situation. They will consider those aspects of your injuries that resulted from the accident, and those that did not. You can be compensated for the former, but not for the latter.
What is the Defendant Entitled to Know About Your Medical History?
After you file a claim for your injuries, you and the defendant are required to provide each other with all documents within your control that are relevant to the lawsuit. In a personal injury lawsuit, this may include things like police reports, witness statements, medical records, and photographs.
In addition, each side can request specific documents from the other party. A defendant will generally request the plaintiff’s complete medical history. Your lawyer will review the request and may object to disclose part or all of the medical chart on the basis that it is not relevant. However, medical records related to pre-existing injuries and conditions are usually considered relevant and will likely have to be disclosed.
As part of medical information gathering, medical assessments may also be scheduled. You may be asked to attend an independent medical examination (“IME”) by your lawyer, the defendant or both. This is a medical assessment conducted by a physician who is not your treating physician and has no prior relationship with you. The physician’s job is to provide an unbiased medical opinion about your condition that can be used as evidence in your accident claim.
The physician will be given your medical records, and part of their task will be to assess the extent to which any pre-existing conditions may be responsible for the injuries and deficits you have experienced since the accident. More information about DMEs (assessments requested by the defendant) is available here: Do’s and Don’ts for your defence medical examination.
You can learn more about the role of medical assessments from reviewing our client resource: How a Personal Injury Claim Works.
Legal Principles that Apply to Pre-existing Conditions
When courts consider how much compensation to award to a plaintiff with pre-existing medical issues, the judge may need to decide whether the injured person is a “thin skull” or a “crumbling skull” plaintiff. These two concepts are related to the foreseeability of the injury that you suffered, and whether it is fair to require the defendant to provide compensation for the full scope of that injury.
The starting principle is that a defendant who injured you is responsible for all injuries that were a “reasonably foreseeable consequence” of the wrongful conduct. Normally, a plaintiff does not need to prove that the extent of the loss was foreseeable, but only that the type, class or character of the loss was foreseeable in the circumstances.
If a plaintiff had a pre-existing condition that made them more susceptible to an injury than the majority of people, or that caused them to suffer more serious or extensive injuries than most people would have suffered from the same accident, they may be considered to be a thin skull plaintiff. This might apply if you had a pre-existing condition but it was not active or causing you problems at the time of the accident.
In this situation, the type, class or character of the injury you suffered was foreseeable and would likely have happened to any other person in your position. However, the extent of your injury may be greater due to your pre-existing injury. The defendant in this situation is expected to “take their victim as they are,” and will be liable for the actual losses suffered, even if they are greater than would be the case for the average person.
On the other hand, if your condition was bothering you or if you were actively receiving treatment for it at the time of the accident, you may be considered a crumbling skull plaintiff. A crumbling skull plaintiff can still receive damages. However, since you had an active, pre-existing medical condition, the defendant will only be required to put you back in the position you were in at the time of the accident, taking into account your pre-existing injuries.
The defendant is liable for any aggravation of your pre-existing condition that results from their wrongful conduct – i.e., if you had a previous medical issue, and the accident made it worse. However, if the pre-existing condition would probably have caused you certain losses in the future, regardless of the defendant’s wrongdoing, those losses will likely not be included in your damage award. It is up to the defendant to persuade the court that you may be a crumbling skull plaintiff.
The courts have provided guidance on the kinds of circumstances that may qualify a plaintiff as either thin skull or crumbling skull. We have discussed some of those cases in this post: How do pre-existing injuries potentially affect your personal injury damage award.
CAM LLP has a team of accomplished and experienced personal injury lawyers. If you have questions about how your pre-existing conditions might affect your potential damage award, please CONTACT us for a free consultation.