Can I sue for an old injury? You may have had an injury a recent accident aggravated. Or, you recently learned that there was compensation available for individuals who sustained injuries due to someone’s carelessness or recklessness, and you would like to recoup the expenses you’ve incurred from an accident that happened four years ago. Here is a look at pre-existing conditions, the statute of limitations, and other issues that can help you determine if you’re eligible to seek compensation for an old injury.
The Statute of Limitations: How Old Is Too Old?
As explained by Investopedia, the statute of limitations is the maximum amount of time that the parties of a dispute have to initiate legal proceedings. Many cases involve a statute of limitations, including personal injury claims. There is no federal statute of limitations on personal injury claims. However, each state sets its statutory guidelines for filing claims.
For example, if someone sustained injuries as a result of another’s negligence in Missouri, they generally have five years from their injury to file a personal injury lawsuit. In Illinois, personal injury claimants generally only have two years to file a lawsuit.
With some very specific exceptions, the law bars individuals who fail to file their claim in court within the statute of limitations from using the court system to seek compensation for the expenses and impacts of their injury. Because of this, an injury from an accident four years ago is too old for a lawsuit in Illinois, but the opportunity to file one in Missouri remains open in most cases.
Exceptions for Childhood Injuries
In every state in the U.S., individuals under 18 are considered minors. As such, the law does not permit them to do certain things, such as entering into legally enforceable contracts as needed to settle a legal claim or hiring an attorney to represent them. Because of this, injured minors cannot file a personal injury claim to seek compensation.
Instead, they have two options:
- They can either have their claim filed within the personal injury statute of limitations for their state; or
- They can wait until they turn 18 and file the claim within their state’s personal injury statute of limitations with the time beginning on their 18th birthday. In other words, if an individual was injured in a car accident in Missouri when they’re eight years old and their parents do not file a claim seeking compensation on their behalf, they have until their 23rd birthday to file a claim. This is five years from the date they were legally eligible to seek compensation on their behalf.
You Were Injured Before, and Now Your Injury Is Worse
Pre-existing conditions are often a source of frustration for personal injury claimants and great interest for insurers tasked with evaluating and compensating claims. One of the many common insurance company tactics they use to devalue claims is to ask a claimant to authorize the release of their medical history so that the claims adjuster can thoroughly investigate it in search of pre-existing conditions.
Why? Because the at-fault party’s insurer is not responsible for compensating the condition itself, only the degree by which the condition worsened due to the at-fault party’s negligence.
It is important to note, however, that having a pre-existing condition does not prevent you from seeking compensation for the expenses and psychological impacts you incurred in the accident. Instead, it simply means more legwork is involved in gathering the evidence needed to prove your claim.
If you have imaging scans of your injury before and after the accident, this can be a powerful tool in showing how the accident worsened the injury and how the at-fault party is liable for the additional treatments needed to bring the injured party back to the state they were before the accident occurred. Testimony from medical professionals about the change in the claimant’s condition after the accident can also be helpful.
How an Attorney Can Determine if You Can File a Claim
One way to determine if you’re eligible to seek compensation for an old injury through the personal injury claims process is to speak with an experienced personal injury attorney about your case.
Personal injury attorneys typically offer a free, no-obligation case evaluation where you can obtain answers to your questions about your case and learn more about the role of an attorney and their legal team in helping you get the compensation you need.
Personal injury lawyers also generally work on a contingent fee basis. This means they do not get paid for their services unless you receive compensation for your claim through outright payment, a negotiated settlement, or a court award. This gives claimants the peace of mind of knowing they can afford the services of an attorney, as well as reassurance that the attorney would not agree to help with a case when they see the claimant cannot file a claim due to the expiration of the statute of limitations.
Other Services an Attorney Can Provide to Help You Sue for an Old Injury
Attorneys don’t just dispense legal advice to prospective clients during a free case evaluation. They also provide several other services to assist their clients with the claims process and improve their chances of obtaining the most compensation for their claims. Whether your injury is new or old if you’re still eligible to file a claim, here are some of the services you can expect from your attorney.
Determining Liability and Insurance
To have a successful outcome to your claim, you must prove that someone else is liable. Liability refers to a legal debt or owed obligation. While some at-fault parties are responsible due to intentional acts, most personal injury claims address the liability someone has for accidents and injuries resulting from careless or reckless actions, commonly referred to as negligence.
To prove that the at-fault party needs to compensate you for your injury, your attorney will gather evidence and witness testimony to show:
- The at-fault party had a legal duty in a given circumstance to take reasonable actions to avoid causing harm to others. For example, in a case involving injuries from a car accident caused by a negligent driver, the claimant must first be able to show that the driver was operating a vehicle on a public roadway when the accident occurred. Drivers on public roads must drive their vehicles safely and follow local and state traffic laws.
- There was a breach in the duty owed by the at-fault party. Using the car accident scenario again, a breach in the duty owed by a driver using a public roadway generally involves something illegal or unsafe, such as failing to maintain the vehicle properly or driving while impaired by alcohol or distracted.
- The breach of the at-fault party’s legal duty resulted in an accident in which the claimant suffered harm.
In addition to helping their client prove that the at-fault party caused the accident, an experienced personal injury lawyer also can determine the types of insurance policies held by the at-fault party that can cover the claimant’s compensation.
Assigning a Value to the Claim
An attorney will determine that a prospective claimant is eligible to seek compensation for their injuries based on the details of the claim and the amount of time available for the process before the statute of limitations expires. Once the claimant’s injury has stabilized, and there is the opportunity to have a clearer picture of the expenses and impacts they incurred due to the injury, the attorney will assign a value to the claim.
The lawyer bases this value on several factors, such as the amount of available insurance, the severity of the claimant’s injury, and any permanent injuries resulting in the need for compensation for future medical treatments.
Communicating With the At-fault Party’s Insurance Provider
After the claimant’s attorney assigns a value to the claim, they will submit the claim as a demand to the at-fault party’s insurance provider. Upon receiving this demand, the provider will assign a claims adjuster to evaluate the claim and determine how much compensation they owe to the claimant.
It is important to understand that the claims adjuster is an employee of the at-fault party’s insurance company. They’re not looking at the claim through the lens of ensuring they have provided enough compensation to the claimant; rather, they’re looking at the claim to determine the least amount of money they’re legally obligated to pay.
According to information provided by the U.S. Department of Justice, about 60 percent of all claims related to real property, contracts, and torts (an act or omission that results in harm to another) feature personal injury. Of these claims, only about 4 percent go to trial, with a settlement resolving the vast majority of claims before a court reaches a decision.
While there is no guarantee as to which claims will settle out-of-court, it is essential to note that a settlement is the most likely resolution to a personal injury claim. However, the initial settlement offer made by the at-fault party’s insurer is usually only a fraction of the claim’s established value. The claimant’s attorney negotiates with the insurer to get them to increase their offer to a level that fairly compensates the claimant for the costs and impacts of their injury.
At the same time, the attorney provides guidance and information to their client so that the claimant understands why their claim is valued as it is and how large the settlement offer needs to be considered fair compensation.
Gathering the Evidence and Testimony Needed to Prove Liability
You need two types of evidence to resolve a personal injury claim successfully. The first type of evidence proves liability and often includes documentation such as a police report for an accident or an official statement made by the claimant, eyewitness testimony, video footage or photographs, and information about any citations or charges that the at-fault party incurred at the scene.
The second type of evidence involves documentation of the financial and psychological impact of the injury on the claimant. This is information that justifies the value of the claim, such as medical bills, bills pertaining to property damage (such as the cost of repairing or replacing a vehicle after a car accident), wage information from the claimant’s employer, and testimony from family, friends, and medical professionals about the impacts of the injury on the claimant’s life.
Filing a Lawsuit (Before the Statute of Limitations Expires)
As noted, failing to meet the statute of limitations for a claim usually results in the loss of the right to use the court process when seeking compensation for the expenses and impacts of the injury. However, allowing the statute of limitations to expire will also result in the insurance provider refusing to consider the claim, as—without the claimant having the ability to sue them—they no longer have any consequences for not compensating the claim. For more information, reach out to a personal injury lawyer.
An experienced attorney will manage the timing of the claim to ensure that there is time to file a lawsuit, thus protecting the claimant’s right to sue if the insurance provider fails to compensate the claim fairly.
