Legal Question in Personal Injury in Virginia

Re: Preexisting Condition

There is no automatic answer to this. It is a

very common situation for the attorney for the

insurance company or driver-defendant to make

such an argument. It is a standard page from

the defense attorney's playbook.

The trouble is that it IS very hard to prove

how much of the injury was from the accident

and how much of the injury was already there

before the accident.

Legally, you are entitled to payment for ALL of

the injury from the accident, 100%.

But as a practical matter, if you cannot prove

how much of the injury is from only the accident

alone, you will lose and maybe get nothing or only

so much of it as you can actually prove.

The answer lies in the FACTS that you can prove,

not in a general principle of law. Therefore

there is no "right" or "wrong" answer because it

depends on the facts of what is actually going

on with your back and what the accident did to

your back and what you can prove.

Practically, it is very hard to say what is

going on inside your body, where people cannot

see. Therefore, all you can do is have a "battle

of the experts" in which the expert witnesses

from each side say opposite things. And expert

witnesses can be expensive for you to arrange.

It helps if you never needed to go to the doctor

before, at least a little.

When it comes to settling a case voluntarily,

there are no rules. The two sides can agree to

anything. So it is entirely a question of what

you are willing to accept, and whether you are

willing to pay the expenses of going through with

a trial and taking your chances of receiving

maybe more, maybe much more, or maybe less. It

is impossible for anyone to say what is the right

thing to do, because no one can say for sure if

you will get more or less by going to trial.

Deciding whether to settle is more gambling than

it is science or law.

Re: Preexisting Condition

You can accept the other side's offer of settlement and the case will be over or proceed to trial and attempt to prove your injuries and resultant damages to the trier of fact by a preponderance of the evidence.