You were rear-ended at a stop light in Madison County, Illinois. The collision caused you to have back pain in your low back or neck. At some point after the car wreck, you see an orthopedic surgeon at Alton Memorial Hospital and she informs you that surgery will likely occur in the future. Prior to the car wreck, you had back or neck pain. It started without an injury, but it has been present on and off for a number of years. Insurance companies, lawyers, and doctors sometime call these pre-existing conditions. Can the insurance company use this prior neck or back pain to limit your recovery in the car wreck?
The short answer is no. The insurance company should not be able to use that prior medical condition without an expert witness (a doctor) stating the pre-existing medical condition was the cause of your current injuries or condition. Sometimes the insurance company will ask for an Independent Medical Exam (IME). Click here to learn about IMEs. That said, pre-existing medical conditions in a car wreck is a highly litigated subject for car insurance companies and the lawyers who defend them. Even though the law is clear that “other” causes of a condition are prohibited, car insurance companies will always try to get these into evidence. This can potentially prolong the case and prevent a settlement.
Here is a sample of our arguments to a Judge in a case we recently litigated (and won at a jury trial). The driver who caused the car wreck attempted to get in evidence that my client's neck problem was caused by something other than the wreck. We won on that issue.
The Defendant should be barred from all testimony or argument related to any prior or subsequent injuries, or idiopathic causes, unsupported by testimony from a qualified physician willing to opine to a reasonable degree of medical certainty that injuries that the Plaintiff sustained prior to, or subsequent to her automobile collision with the Defendant, were more likely than not the sole cause of any physical or medical condition of which the Plaintiff complains because of the collision. See Ill. R. Evid. 401-403, as well as Voykin v. Estate of DeBoer, 192 Ill.2d 49, 733 N.E.2d 1275 (2000) (any evidence of prior, other, or subsequent injuries that is not supported by testimony from a qualified physician that these injuries are, to a reasonable degree of medical certainty, more likely than not the sole cause of any complained of Plaintiff condition put at issue in this case, or explaining to the jury how to apportion these other causes when they calculate damages, is inadmissible.)
Further, the appellate courts have held that it is reversible error to admit testimony on cross-examination that something else could have caused a plaintiff's damages or is known to cause a condition within the general population. It is reversible error because this kind of testimony if admitted would afford a jury license to speculate about alternative causes, without evidence tying these speculative alternative causes to anything that has actually happened in the Plaintiff's life.
The improper admission of this kind of evidence is reversible error because it can impact how a jury assesses causation. See e.g., Voykin, 192 Ill. 2d at 60. See e.g., Noble v. Earle M. Jorgensen Co., 2013 IL App (5th) 120248, pars. 22-28 (affirming exclusion of evidence of subsequent fracture, based on Voykin doctrine); Obszanski v. Foster Wheeler Const. Inc., 328 Ill.App.3d 550, 559, 765 N.E.2d 1193 (1st Dist. 2002) (allowing cross-examination regarding subsequent injuries was error under Voykin doctrine: “Here, the introduction of evidence concerning Obszanki's subsequent injury without any supporting expert testimony was error”); see also Caliban v. Patel, 322 Ill.App.3d 251, 256, 255 Ill. Dec. 817, 750 N.E.2d 734 (1st Dist. 2001) (holding trial court erred in admitting testimony regarding subsequent injuries without expert testimony creating the foundation required by Voykin).
Voykin and its progeny requires medical testimony that the sole cause of the Plaintiff's condition is the result of something other than the incident complained of, including phantom injuries or idiopathic changes. Alternatively, the Defendant must provide opinions as to how a jury should apportion these other causes when they calculate damages caused by the condition occurring from the collision. Here, the Defendant does not provide any opinions that the sole cause of the Plaintiff's condition (neck pain and bulging disc) is caused by any other incident.
If the law is so clear, why do insurance companies argue it? Because judges are human. Humans make mistakes. Personal injury law is very nuanced, and many judges are not familiar with the law on the subject. That is why it is important to have an injury law firm who has experiences litigating these issues.