Legal Question in Personal Injury in Virginia
Preexisting Condition
I was in a car accident that wasn't my fault. It has now been a year and my lawyer called me and told me that they wanted to settle with me. They gave me a real low settlement and said because I have had trouble with my back before the accident I have never been to the doctor for my back but they are saying my back was messed up before the accident I think they should prove it. My lawyer sent me examples of people with my condition and the amount they received after completeing the therapy and going to the doctors. I went to therapy and to the doctors a lot more times than some of the people on the example and my settlement was way lower than the one on their paper. I am wondering what can I do.
2 Answers from Attorneys
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.