There are two types of defenses available in most automobile accident lawsuits: “I wasn’t at fault”; and “You aren’t that badly hurt.”

The first, “I wasn’t at fault,” deals with liability. The question is whether the other driver was responsible for the collision because she somehow broke the rules-crossed a center line, caused a rear-end collision, or pulled out in front of another vehicle that had the right-of-way. This defense deals with whether a victim can win his case. It is not used in all auto accidents-sometimes the other side will admit that she caused the collision.

The second defense, “You aren’t that badly hurt,” is often heavily relied on when liability is admitted, but it can also be used when liability is contested. Generally, the other driver will tell the judge or jury that “I wasn’t at fault, but even if I was, the plaintiff should not get the money he is asking for.”

For this reason, it’s important for our lawyers (and for defense lawyers) to get a complete medical history from the plaintiff. Let’s say the plaintiff has a lower back injury from an automobile accident. Here is what we need to know:

  • Have you ever had a back injury before the accident?
  • Did you have any other back injuries after the accident?

It’s really simple, but the problem sometimes arises that people don’t always remember all other injuries they had. We’ve all been in this situation-we completely forget to mention something in a conversation, and it doesn’t hit us until 30 minutes later. Part of a lawyer’s job is to jog their client’s memory. Here are some of the questions we often will ask our clients at the outset of the case:

  • Have you ever had a lawyer for any reason?
  • Have you ever made a claim against any insurance company?
  • Have you ever been to the doctor because of pain in your back?
  • Who is your primary care provider? How long have you been seeing him/her?
  • Do you have any disabilities?
  • Have you ever received money from the Social Security Administration?
  • Have you ever been in an automobile accident?
  • Have you ever had an on-the-job injury?
  • Have you ever been in a slip-and-fall?
  • Have you ever had surgery?
  • Have you ever been to a physical therapist?
  • Have you ever been to an orthopedist (bone and muscle doctor)?
  • Have you ever been to a chiropractor?
  • Has a doctor ever prescribed you a massage?
  • Have you ever filed a lawsuit?
  • Have you ever made a workers’ compensation claim?
  • Has your work ever sent you to a doctor?

There’s certainly some overlap with some questions, but it’s hard to know what will trigger a long-forgotten memory. There are two reasons that plaintiffs’ lawyers, and defense lawyers, try so hard for this information.

First, when a victim does not “fess up” about prior injuries, it gives the defense lawyer an opportunity to call him a liar. If you forgot about that minor back injury ten years ago, even if it resolved after a couple of weeks of physical therapy, the defense lawyer will try to convince the judge or jury that you were deliberately hiding it. If they believe that, they won’t believe anything else you say.

Second, prior or subsequent injuries give the defense a chance to blame a victim’s problems on something else. The argument is that accidents before or after the one in the lawsuit are the real cause of injury. To some extent, this may also allow the defense lawyer to paint the victim as someone trying to win the “lawsuit lottery”-trying to convince a judge or jury that their prior injuries were caused by the defendant driver.

Because we want to do the best we can for our clients, in most cases we try to get additional information to figure out if there is anything else out there. Here are some resources we use:

  • Old medical records: records from the primary care provider often give details about aches and pains that may be long-since forgotten. Also, it is sometimes worth it to get information from the plaintiff’s health insurer about prior medical visits.
  • AISG form: the insurance companies send information about claims to a central database. We locate that information through the American Insurance Services Group. For a small fee, we can see what they know. This can be useful because some claims may refresh our clients’ memories about other accidents they were involved in. Also that information is sometimes inaccurate, and knowing about it before trial gives us an opportunity to prevent problems before they occur.
  • Lawsuit records: Lawsuit records are available from Maryland, Virginia and the District of Columbia. These records can help us to determine if there have been any other lawsuits where physical injuries may have been involved.

Defense lawyers think that we try to cover this type of information up, but the opposite is true. The hardest case to bring is one where the plaintiff lied about other injuries. In most cases, we can distinguish those other injuries from the injuries in a current case. We recommend being honest with defense counsel about prior and subsequent injuries. Now, we won’t volunteer to give the defense all medical records and history where it isn’t relevant-our clients are entitled to a degree of medical privacy. For example, in a back injury case, the defense lawyer doesn’t need to know about the plaintiff’s recent hand surgery. It is only with full information that we can properly advise our clients about what should and should not be disclosed in their automobile accident cases.