It is not uncommon for someone that is in an accident to have a pre-accident history of prior health problems.  Those problems can cover the full gamut of health problems, from cardiac issues, back or neck problems, vision problems, etc.  What happens if you had back problems or neck problems before your accident?  Can you still recover for neck and back problems that you feel after the accident?

     Pre-accident neck and back problems can fall into a number of different categories.  Some are the types of problems that you have, but you don’t know that you have.  In that category, many people have bulging or herniated discs and don’t realize it and don’t feel any symptoms from it.  Another type of pre-accident back problem is when you had pain that sent you to the doctor and you received treatment for it, including possibly surgery, but then you are pain or symptom free in the months or years leading up to your accident.  The third category is when you have a prior neck or back problem that continues to give you pain and discomfort right up to the day you get into your accident.  Are you allowed to recover in these situations?  If so, what?

     In Illinois, the fact that you had prior neck or back problems DOES NOT keep you from a recovery after a later accident.  If you have an “undisclosed” condition that did not give you any symptoms, or if your prior back symptoms had stopped before the accident, the fact that the current accident aggravated those conditions into current pain allows you to recover the full amount of your care and treatment for those conditions as if you had never had them before.  This is called an “aggravation” of a previous condition.  The at fault driver is as responsible for the whole amount of your damages as if they had caused all of your problems in the first place. 

     In law school, this topic is referred to as “the eggshell plaintiff.”  In a nutshell, the egg shell plaintiff theory is premised upon the common sense and logical fact that when the negligent driver hits you, that person takes you as you exist on that date.  There is no defense that because you are only egg shell thin in protection, that they are not responsible.  In other words, the defendant does not get to claim that if you were in better pre-accident health, that you would not have been injured in this particular accident.  The reason for that is clear.  Why should the defendant, the person that caused the accident, get any benefit so to speak from what your pre-accident health history is?  This is no different than if you were transporting priceless china in the trunk of your car when you get smashed from behind and it is all ruined.  The defendant owes the full amount of the value of that china and cannot claim that you should have only had  paper china in your car.  So, if the defendant aggravates a pre-existing, condition, they are on the hook!  For the WHOLE DAMAGES!!

     But, what happens if your back problems are nagging you right up to the point you get in the accident.  What happens then?  These types of cases are a little trickier to resolve.  The general rule of “aggravation” still applies, but you need to discern the difference in pain you are feeling after the accident compared to your pre-accident pain.  The defendant is responsible for that difference. 

     Whenever you have pre-existing health problems, particularly back and neck issues and get in an accident, these “aggravation” cases are compensable.  It does not mean that the insurance company for the at fault driver will just roll over and pay big bucks right away.  These types of cases are usually hard fought.   The defense will be aggressive, particularly if you have surgery after the accident.  The defense will often hire “expert” doctors to say that the accident did not cause anything other than a short term “exacerbation” of your prior condition and that your pre-accident back history was going to lead to surgery in any event.  In all the category of these cases, the defense will try and create the impression in the jury’s mind that all  of your accident complaints were things you had before or were destined to feel notwithstanding the accident.  Don’t despair.  You deserve a recovery.  This is when you need a real advocate on your side too!  This is NOT the time to hire the neighborhood lawyer that helped with your real-estate closing and your cousin’s divorce.  They may be very good at that, but go to a lawyer that ONLY handles injury cases for victims. 

     Remember, the insurance companies have vast amounts of money to hire good lawyers to fight you.  You need a fighter on your side too.  Good luck.