Jul 16, 2010

The "Thin Skull" Doctrine & Why Insurance Companies Hope You Don't Read This Article...

It usually starts with the phone call from the insurance adjuster. She tells you that she has had a chance to look at your medical records. She says that while is aware doctors were treating you for the injuries caused by the car crash, she is also aware that x-rays showed you had "extensive degenerative disc disease." She goes on to tell you that her settlement offer would be more EXCEPT that you have preexisting degenerative disc disease in your back. Therefore, she doesn't think they should be responsible for this entire injury. In other words, you're damaged goods.

What do you do now? You had no pain, no doctor visits, and no physical limitations BEFORE this accident, which wasn't your fault. So why is the insurance company telling you something different? Could they be right? Should you just take what little money is being offered?

If you have encountered this argument from an insurance company, this article is for you. If knowledge is power, then this article is "super-octane jet fuel."

There are certain illusions, deceptions, and half truths that insurance companies use to convince injury victims to take less settlement money. They hope that you never learn about one of the most important doctrines in personal injury law...the "thin skull" doctrine.

Surprisingly, the legal notion of "thin skull" really does originate from the popular children's poem about Humpty Dumpty. The idea was that Humpty (the egg, not the old-school rapper from the 80's) was injured more from the fall off the wall than a person (or egg) whose skull had been made of bone instead of eggshell (i.e. thin skull). The idea here is that the focus on Humpty's pre-existent disposition to being injured directs the reader away from what his injuries actually are. But such a mis-focus is not allowed under Colorado law.

For nearly forty years, Colorado law has said that in legally apportioning Humpty's injuries, regardless of how predisposed Humpty was to greater levels of injury, You never get to say, "well gee, I wonder if Humpty would have had a skull of bone, maybe he wouldn't have been hurt as badly from the fall." In the eyes of the law, that does not matter. So the at-fault party charged with causing needless injury to Humpty IS100% responsible for all injuries, damages and losses incurred to this poor egg from the fall off the wall.

Starting in 1973, Colorado recognized that a negligent defendant must take their plaintiff as they find them. This means that if a defendant happens to cause injury to a person with a thin skull, paper veins, or a porcelain spine, regardless of the preexisting frailty of the victim, the at-fault person ("defendant") is responsible for ALL injuries his conduct caused. That is true EVEN if those injuries are vastly more extensive than what the average person under the same circumstances might have incurred.

In front of a jury, the judge will ALWAYS read the following jury instruction. The jury is told that this is the law of Colorado and they MUST follow it:

"In determining the amount of Plaintiff's actual damages, you cannot reduce the amount of or refuse to award any such damages because of any physical frailties that may have made him more susceptible to injury, disability or impairment than an average or normal person."

Insurance companies are in the business of taking in premiums and trying their best to limit the extent to which they pay out claims. So if they can get you to take less, who does it hurt? It hurts .

It should be noted that if a person was already being treated for a very injured back and then gets into a new accident, that is an entirely different issue than what we are discussing. Under those circumstances, an insurance company would be able to consider a percentage discount for injuries that were preexisting and already symptomatic prior to the injuries caused by their at-fault driver. The key distinction here is that this person had symptoms and was getting treatment prior to the car accident (as opposed to simply being predisposed to injury but not having any symptoms prior to the accident).

The deception lies in these insurance company telling you that they are not considering paying you full value on your losses because of "degenerative disc disease", which was not actively being treated prior to the accident.

When the adjuster says the words "degenerative disc disease," the question you should fire back with is: "what evidence is there that says my condition was symptomatic BEFORE the crash?" If they have evidence of prior active care in that precise area of your body, then you will have to negotiate from a weaker position. However, if the adjuster says "well we just figured that as bad as your spine looks, we think what you are experiencing was inevitable." THERE IT IS! This is the point in the conversation that reality, the law, and any sense of straight-shooting honesty are out the window.

I say this because if you get accused of having "degenerative disc disease," you are basically part of a no more unique class of people than simply EVERY adult over age 21 in the world. The reality is that the process of aging wears on our spine, our teeth, and our hair line. After age 21, nearly everyone can be diagnosed as having some level of degenerative disease. Does it mean you're symptomatic? Does it mean you are headed for a back surgery? Absolutely not!

In fact, a famous study (quoted for a different self-serving purpose by lawyers hired by insurance companies) known as the "Boot camp" study showed that more than 1/3rd of all 18-21 year olds who were in a boot camp, all physically fit young men, had "extensive degenerative disc disease as identified by MRI studies."

Basically, if the insurance company tries to get you to take less because you have degenerative disc disease, you respond "well you have degenerative disc disease too, and I'm calling an attorney!"

If you never had a physical problem before a crash, and now you do, don't let the insurance company deceive you into believing you're damaged goods and therefore worth less in settlement. When the adjuster says "significant degenerative disc disease", know that what she is really saying is: "we are going to try to fool you into taking less."

At Anderson Hemmat, we understand the bullying tactics used by insurance companies sometimes intimidate injured victims into taking less than what they rightfully deserve for being injured through no fault of their own. Just because you may have "degenerative disc disease", that doesn't mean there should be an offset in your recovery. If you see these tactics being used in your case, please call us so we can help.


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