Being a litigant can feel like an invasion of privacy. The other side will delve deep into your background; asking questions about you, your family, your work history, educational background, criminal background, and other details that may seem irrelevant to the lawsuit. But, who you are is relevant because you are a witness, and attorneys seek out this information to aid them in determining whether you will be credible in front of a jury. Perhaps no role in litigation can make a person feel like his/her privacy is being invaded more so than the plaintiff in a personal injury lawsuit.
If you are seeking compensation for a personal injury that occurred due to a slip and fall or an auto accident, it is very likely that, at some point, your past medical history will become an issue. If litigation is instituted, the defense will ask for and are entitled to receive your medical information from before your motor vehicle accident or your slip and fall. Most commonly, this information will date back ten years from the date the negligence occurred and will be from every doctor or other medical providers you have seen. The attorneys will meticulously pour over your medical records until they know your history probably better than you do – every sniffle, every headache, each time you had the flu. Why? To ensure that what you alleged was injured in the accident truly was. The defense uses this information to see if you have had neck pain in the past when you are alleging whiplash from an auto accident, for example, and to what extent you recovered. If the damage to your vehicle was minimal, the adjuster or defense attorney will likely argue that your pain is a pre-existing condition and just more of the same. They will likely argue it is not a new, acute injury, but rather something you had and still have and now are trying to blame the defendant for in an attempt to get money.
Often, plaintiffs are annoyed at best at this expedition into their medical history. However, our courts have ruled that when a person makes a claim for personal injury, they place their medical history in issue and, therefore, impliedly waive their physician-patient privilege. Issues arise when the medical information contains potentially embarrassing subjects that probably have very little, if anything, to do with your injuries: struggles with depression, substance abuse, sexually transmitted diseases, or incontinence problems are all common ailments that are embarrassing to discuss outside of a physician’s examination room. In these instances, your attorney can ask the court for a protective order to limit or even cease any disclosure of this potentially embarrassing and extremely personal material.
The most common problem that arises in a personal injury claim with past medical information is the presence of degenerative conditions, such as degenerative disc disease in the spine. These conditions are caused through the natural aging process. As you get older, your body begins to wear down over time from use. Many times, people do not even know they have these degenerative conditions until some trauma occurs, which aggravates the condition and causes it to begin producing other symptoms, such as pain. The defense often tries to confuse the jury with the presence of these pre-existing conditions to obtain a “no injury” verdict. “We did not cause it, they already had it,” they argue.
But, who knows an adult without any physical problems? No aches and pains? In perfect condition? Who knows anyone over the age of thirty without a single pre-existing problem? My guess is not many of you, if any at all. The law requires the plaintiff in a personal injury action to prove, by the greater weight of the evidence, that the defendant’s conduct was a proximate cause of the injury. In other words, what the defendant did could foreseeably cause the injury claimed and did, in fact, do so. Where the common confusion arises, however, is that the law does not require the conduct of the defendant be the proximate cause, just a proximate cause. An aggravation of a pre-existing condition, therefore, is recoverable under the law.
Trying to handle a personal injury claim on your own can be a daunting task. It is especially difficult when there is voluminous medical information involved. If you are in this situation, consider consulting with an experienced personal injury attorney to see what an attorney can do for you. Most consultations are free, and retaining an attorney and having one on your side can avoid costly mistakes. If you have been injured through no fault of your own, contact our firm for a free consultation to see how having representation can benefit you