Your medical history may come back to haunt you

When it comes to personal injury cases, your own medical history may come back to haunt you! What do I mean by that? Here are a few examples from some cases I recently handled:

I recently had a client who had a shoulder injury from a car accident. She eventually had surgery. Certainly, she had a significant injury since surgery was required. Everything in her medical records suggested injury from the car accident. For example, she complained at the accident scene of shoulder pain (as noted in the police report). At the hospital, she complained of pain to her shoulder. She endured painful cortisone injections to the shoulder which is something people generally won’t do unless they are having tremendous pain. Then she had the surgery and did weeks of rehabilitation. Again, people generally don’t do that unless they are truly injured.

Unfortunately, after reviewing this client's medical records over the last five years, we found that seven months prior to the accident, she had complained of shoulder pain in the exact same shoulder! In fact, the medical records indicated she had been having shoulder pain for six months prior! Of course, if you have surgery after an accident, the insurance company is going to want to see your medical records from the past. Generally, they want to see 5 to 10 years of medical records. Why do they want to see your prior records? Well, because many people try to blame pre-existing conditions on a car accident. In this particular case, my client had forgotten she had made that prior complaint. The truth is, the prior shoulder complaint may have been linked to a gastrointestinal problem that was causing "referred" pain. However, the notation was there, and you can bet the insurance company used it against her. They argued her shoulder pain probably pre-dated the accident and therefore, they should not be held responsible for it.

I had another client recently who was complaining of neck and back pain post accident. Eventually, after physical therapy failed, she had several cortisone shots to her neck and back. She assured me she had never had this type of pain before. Of course, I had to research her prior medical records because I wanted to make sure I was familiar with her past care so there would be no surprises.

Lo and behold, we found that two months prior to the accident, she had complained of the exact same problems to her neck and her back. In fact, the medical records indicated her prior neck and back pain were "chronic" and have been going on for well over three months (with radiating pain to her upper and lower extremities). That is not to say the client wasn't injured in the auto accident. I’m only raising these issues because we cannot ignore the historical medical records and how they might be used against us. A jury, a judge, or an insurance company is not going to like this kind of thing. The client was upset. However, I explained to her that her prior similar complaints found only 2 months prior to the accident could sink her entire case.  She could then be on the hook for all our costs and all the defense costs.

Most people are already suspicious of personal injury accidents, and many people think accident victims are just trying to make a buck. The fewer uphill battles we have, the better. Pre-existing conditions that are denied (or sometimes forgotten, conveniently or otherwise) can destroy an entire car accident case.

Another client recently came to my office and explained he had smashed his knee into the dashboard as the result of a head on collision. Of course, this is a significant injury, and he told me he might need surgery. However, having worked for an insurance company myself, I asked him about his past medical care. He explained he did have prior complaints to the same knee. In fact, a few months before the accident, a doctor had recommended an MRI to the same knee. I explained that before I could take his case, and before he could make any significant decisions about whether or not he wanted to proceed with a car accident claim, the best thing we could do is obtain his prior medical records and study them carefully. After all, the insurance company is going to be pouring over them. It stands to reason that we should also be looking through them and learning what lurks in those records.

Here is the moral of the story: If you’re going to complain of any significant injury after an accident, and if you have similar issues in your medical past, they will certainly come back to haunt you. The insurance company will simply argue that your injuries pre-date the car accident and that you are simply trying to blame the car accident for all your previous problems.

If you have a previous problem, be candid about it and forthright. It could be that the car accident aggravated your previous problem or exacerbated an otherwise dormant injury. Then it becomes an issue of what kind of aggravation it was and whether or not you have a residual problem. Of course, sometimes it is difficult to ascertain whether or not you would have had the same problem even without a car accident (insurance companies always make that argument).

Ignoring your medical history or assuming no one is going to look at it, is one of the biggest mistakes I see clients make. If you have a significant medical history, it would be a great idea for you to obtain your own medical records so that you can review them before the insurance company does. That will help you outline your strategy and handling your personal injury case.  Also, don't hide your medical history from your attorney.  That doesn't do anyone any good!  If you are not willing to confront your medical past, then perhaps you shouldn't be making a personal injury claim.