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What Might Jeopardize a Virginia Injury Claim

The following is an excerpt from an interview with an attorney who has handled injury claims in the past.

What factors can jeopardize a personal injury claim?

One factor is the statute of limitations. No matter how badly someone has been hurt, if the statute of limitations has run out, they are typically out of luck. If they file a lawsuit, the other party can just plead a statute of limitations defense. At that point, it doesn’t matter if the injury happened because the time frame within which they needed to bring the case has already passed. That is one of the big factors. Contributory negligence is also an issue. If someone contributes to their own injuries or makes them worse, that is a huge impediment. Failure to follow doctor’s orders also makes it more difficult to recover medical bills and receive fair compensation. For example, some people do not receive medical treatment or decide that they can tough it out. All these things can be harmful to a personal injury case. Another thing that can happen is when someone tries to pursue the claim on their own. Sometimes people are successful, but the majority of the time they don’t get the outcome that they would have if they had retained an attorney.

What is a gap in treatment and its implications on an injury claim?

A gap in treatment typically occurs when someone receives medical care on an inconsistent basis. For example, an injured person might go to an emergency room right after a car accident and receive instructions to follow up with their primary care physician, but then they wait a month or two before ever following up with their physician. The period between when they first sought treatment and when they follow up is a gap in treatment. Depending on how big the gap is, how serious the injuries are, and what the person’s primary injuries are, that could negatively affect a case. If someone has pre-existing injuries caused by other accidents, goes to the emergency room, and doesn’t go back to the doctor for six months, it becomes very challenging to prove the causation. A gap in treatment can stop a case before it even gets started. That is why it is important to follow the doctor’s orders. If someone doesn’t have health insurance, that’s even more of a reason to get an attorney involved as soon as possible. Oftentimes, providers will be able to work out ways for a person to receive treatment, by either an assignment authorization, a lien, or a letter of protection, with the understanding that the recovery in their case will pay for their bills later. But a gap in treatment can be fatal to a case, or can at the least greatly limit recovery.

Is a person’s medical history relevant to a personal injury claim?

Past medical history can be very important to a personal injury claim. If someone has osteoporosis and they are in an accident in which a normal person probably wouldn’t suffer any fractures but, as a result of the person’s condition, they have lots of broken vertebrae, that is through no fault of their own. The person who caused the injuries is responsible for the full extent of the victim’s injuries whether or not they have an underlying medical condition that led to how badly injured they were. However, someone’s medical history can make causation difficult to prove. For instance, if someone has been in six previous car accidents and they’ve suffered back injuries as a result of each one, it is hard to separate out which specific injuries were caused by the most recent accident as opposed to the ones before. That doesn’t mean that an attorney will refuse to take a case just because somebody has a pre-existing condition, but they will want to make sure that it is documented. They need to be able to show that prior to the accident, this person had returned to normal functionality or at least to a higher level of functionality than where they are after the accident in question. That is all part of the medical record and people don’t realize that their medical records from before an injury can be very important. Other risk factors, such as alcoholism, drug use, and obesity can pose causation issues depending on the types of damages claimed.

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