In a Personal injury case if defence attorney argues about pre existing condition.,how valid is this argument?

Asked over 1 year ago - Southborough, MA

I have been in a car accident about 3 years ago. After the car accident I have been experiencing lots of muscle pain and spasm and it has affected my life. My doctor has diagnosed me with fibromyalgia and I do have the typical fibro symptoms. In my past medical history in the past 13 years I have had issue with my right arm and pinch nerve and from time to time depression , but nothing like this pain. Now the defence attorney argues that the accident has not caused the problem,it is pre existing . I need your professional opinion. This condition that Iam experiencing never felt before and even after medical treatments iam not getting better all Iam doing is managing .

Attorney answers (6)

  1. Brian P Finnerty

    Pro

    Contributor Level 11

    9

    Lawyers agree

    Answered . Is your case already in suit? It sounds like you are representing yourself in this matter. If so, you would be much better served to consult with an attorney right away. You won't have to pay a legal fee unless you receive money damages. It's defense counsel's job to poke holes in your damages claim, and arguing that your symptoms relate to a pre-existing condition is a very common, and sometimes valid, argument. Fibromyalgia can be a debilitating disease, and sometimes requires supporting expert medical reports or testimony to strengthen an injury claim because the disease and its causes can be difficult to prove. Your attorney will obtain and review all related medical records and let you know his/her opinion on both damages and causation, as well as obtain all insurance information, police reports, etc., and effectively negotiate with opposing counsel and/or the insurer(s). Your chances of receiving a fair settlement or court judgment will increase with representation. You probably won't get a fair shake without a lawyer.
    I have been handling Mass. motor vehicle cases for over 25 years, and have worked for both victims and insurance companies. Feel free to call if you would like to discuss your case.
    Best of luck with your claim and your injuries.

    Nothing in this email is to be construed as legal advice, or as a solicitation to create an attorney/client... more
  2. Stefano Vincenzo D'Agostino

    Contributor Level 12

    7

    Lawyers agree

    Answered . Defense counsel's argument is valid and a common tactic to disclaim or reduce liability and compensation - However, I suggest consulting with a personal injury lawyer to review and compare your pre-accident medical records with your post-accident medical records to determine a causal connection between your "new" injuries and the recent accident. Good luck.

    Stefano V. D'Agostino, Esq. is licensed to practice only in the Commonwealth of Massachusetts and the... more
  3. Lars A. Lundeen

    Pro

    Contributor Level 20

    5

    Lawyers agree

    Answered . This is an argument we hear all the time. Since this appears to be in suit, I assume you have an attorney. You should discuss these medical causation issues with your personal injury attorney.

    Your attorney will need to develop the medical testimony on your behalf. Hopefully your Dr. will be able to opine, within a reasonable degree of medical probability, that the trauma of the collision caused or activated or aggravated your medical condition. Your physician expert will need to parse out the details with your attorney. It is not unusual for your Dr. to say "white" and the defendant's hired gun physician to say "black". Often these cases become a battle of experts and who is believed. Your attorney certainly can bolster your position through the use of other witnesses, such as friends, relatives, coworkers, etc. who knew your condition both before and after the incident. Speak with your attorney.

    Legal Disclaimer:

    If this information has been helpful, please indicate below.

    Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

    This ans. does not create an attorney/client relationship.
  4. Christian K. Lassen II

    Pro

    Contributor Level 20

    4

    Lawyers agree

    Answered . It is a common tactic by defense attorneys, but your lawyer should be able to handle this.

  5. Andrew Daniel Myers

    Contributor Level 20

    1

    Lawyer agrees

    Answered . The Massachusetts statute of limitations is three (3) years. If you do not have an attorney get one TODAY. No one likes filing suit at the last minute. If suit is not filed in that time period, the claim is barred forever. Insurance lawyers have a theory: throw as much crap up against the wall and see how much of it sticks. That's all they're doing. Here's an article on preexisting conditions: [BLUE-LINK-BELOW]

    Law Offices of Andrew D. Myers, North Andover, MA & Derry, NH provide answers for informational purposes only.... more
  6. D. Robin Gouveia

    Contributor Level 7

    Answered . Preexisting conditions are often argued by the insurance companies and defense attorneys. The laws in the Commonwealth of MA have specifically addressed this issue. An experienced personal injury attorney can help develop how and to what extent any preexisting condition was aggravated or exacerbated. Under the laws, you are still entitled to compensation. Call an experienced personal injury attorney to discuss how these laws apply to your circumstances.

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