Can I Sue for an Old Injury?

One of the questions Michael T. Gibson and his legal team often hear is how long people have to file a personal injury claim.

Can you sue for an old injury you incurred five, ten, or even twenty years ago? Do you have to file your lawsuit right away after becoming injured? Like most things in the legal arena, we could easily answer these questions with: “It depends.”

That answer, however, is unsatisfying.

Here is a deeper look at the issue of suing for old injuries and how long you have to file a personal injury lawsuit.

Much of it depends on the Statute of Limitations

A statute of limitations establishes the deadline by which parties in a dispute must initiate legal proceedings. The clock on this deadline begins running as soon as the incident occurs. In the case of a personal injury claim, this means the time starts running from the day of the accident that caused your injury. It is worth noting that the statute of limitations is not the same from state to state, or even for different types of legal proceedings.

The statute of limitations on personal injury claims is typically between one and five years. This does not mean your case must be resolved within that time frame, merely that you have filed your legal claim in civil court. Certain circumstances, however, can result in a longer or shorter deadline.

These circumstances include:

• You were injured as a child. Child injuries are also handled differently from state to state, but in most locations, a child under 18 cannot file a legal claim or hire an attorney to represent them. Many states allow parents to file a claim on behalf of their child. Some also allow the child some time after they reach the age of majority to decide to file a claim.
• You were not aware of your injury. You may become physically injured and not know it for some time, even years. This circumstance can happen in a medical malpractice claim where doctors leave a surgical tool or sponge in the body and the patient doesn’t discover it until the negative effects arise. Another type of claim where this could happen would be in a case involving exposure to a carcinogen that produces cancer many years after the fact. Many states provide a clause in their statute of limitations allowing for extra time if the claimant was not immediately aware of their injury.
• Claims against the government. Claims against a local, county, or federal agency generally go through a slightly different claims process that features a short deadline. If a governmental employee or agency injured you, ould contact an experienced personal injury attorney right away to preserve your right to make a claim.
• Some intentional injury claims, such as child sexual assault claims. After a sea of complaints in recent years involving child sexual assault occurring in large and well-known organizations such as the Catholic Church and Boy Scouts of America, many states decided to open their filing windows to allow these child victims however long ago the abuse occurred to seek compensation from their abusers.

What Is the Point of a Statute of Limitations?

The statute of limitations exists to:

• Address the lawsuit promptly. Just as a personal injury claimant would not want to wait ten years to obtain compensation for their injury, the defendant does not want to wait for many years under the cloud of a lawsuit that could come at any time. The courts do not want to render decisions based on years-old evidence and documentation. Having a statute of limitations keeps personal injury claims moving in a forward direction for the benefit of everyone involved.
• Provide the freshest evidence and testimony. After a time, evidence gets lost or unusable. People forget details of events that occurred. Statutes of limitations ensure in most cases that there is not much time for evidence to go away or the memories of witnesses to wane.
• Ensure that no party drags out the claim to harass someone else.

Can I File a Lawsuit Before the Statute of Limitations Has Expired?

You may file your lawsuit anytime before the statute of limitations expired. Failing to file your legal claim before the statutory deadline will result in you losing the right to seek compensation for your injuries.

How long before the statute of limitations you should file your claim also depends on:

• How long it takes for you to reach maximum medical improvement. Maximum medical improvement means you have likely recovered as much from your injury as you ever will, even if you continue treatments for it. Attorneys often like to wait to determine the value of the claim until they have a clearer picture of the expenses you have incurred and likely will incur in the future from your injuries.
• How the at-fault party’s insurance responds to your demand. Your attorney will submit a demand package to the insurance adjuster that details the claim, provides documentation of expenses, and demands payment on the claim’s value. The insurance adjuster can respond by either approving the claim for payment, at which point there is no need for a lawsuit; denying the claim and providing the claimant with a reason for the denial, at which point you with the guidance of your attorney can decide to file your lawsuit right away; or offer a settlement which admits to some liability on the part of their insured but does not offer the full value of the claim, which will likely result in settlement negotiations in which your attorney will counter-offer until an offer is made that both parties can agree on.
• How interested the insurance provider is in negotiating. Insurance companies may wait the claimant out. This means the insurer will make a low settlement offer and refuse to budge from that amount. If the amount is too low, your attorney will provide your options, including filing the lawsuit. Settlement negotiations can continue after you file suit, and often filing provides the spark the adjuster needs to take the negotiations seriously and avoid an expensive trial with an uncertain outcome.

If I Re-Injure an Old Injury, Can I Sue?

Pre-existing injuries are the source of much concern for personal injury claimants. The simple answer to the question is: Yes, if an accident that someone else’s carelessness or recklessness caused reinjured or worsened a pre-existing injury, you can still file a claim seeking compensation for the expenses and impacts you incurred.

If you suffered new injuries in the accident but experienced no worsening of existing conditions, you can seek compensation for the expenses and impacts of the new injury, but not for the unaffected pre-existing injury.

The Complexity of Pre-Existing Injuries

While the existence of a pre-existing injury will not remove your right to obtain compensation for the expenses and impacts you incurred as a result of the accident, it will likely make your case a bit more complex to prove.

The insurance company will often use the presence of a pre-existing injury as an excuse to reduce the value of the claim.

To preserve your right to the maximum amount of compensation available in your case, your attorney will seek to show:

• Evidence proving that your pre-existing injury worsened after the accident. This often involves showing medical documentation such as imaging tests or physician’s notes. Additionally, the court can consider the testimony of others as to your quality of life now versus before the accident.
• A medical opinion from a professional with experience in the injuries you suffered who has evaluated you and has studied your medical history.

If you have suffered a pre-existing injury that the accident worsened, tell your attorney. It will not cause your attorney to decide not to represent you. However, failing to disclose information about pre-existing injuries could damage the value of your claim.

Who Is Responsible for Managing the Deadlines In Your Case?

You are responsible for hiring an attorney in a timely fashion so that they have time to adequately review and investigate your case before the statute of limitations expires. However, one of the many services an attorney will provide for you once they begin working on your case is to manage the deadlines in your claim, including the statute of limitations.

Your attorney will also communicate these deadlines to you, informing you if there is a situation in your case that would result in an extended statute of limitations or if your deadline is shorter due to a claim against a governmental agency.

What Other Services Will Your Attorney Provide?

You can expect your attorney and their legal team to:

• Provide a free case evaluation where you can learn more about the personal injury claims process and the firm and obtain answers to your legal questions.
• Determine liable parties and associated insurance resources to discover how much compensation is available in your case.
• Establish a value to your claim based on available insurance resources, the severity of your injury, and the expenses and impacts you have already incurred or will likely experience in the future.
• Manage communication with the at-fault party’s insurance provider. Insurance providers often attempt to contact claimants personally rather than going through their attorney, to employ tactics that the claimant is not aware of. These tactics can include false statements about how much compensation is available, convincing a claimant to authorize the release of all their medical records, convincing a claimant to accept a settlement that won’t pay for their losses, and more.
• Collect the evidence and witness testimony to prove your court case.
• Attending all pre-trial conferences and hearings involving your case.
• Litigate your claim, including the delivery of opening and closing statements, the examination of witnesses, and the presentation of evidence.
• Collect your settlement or award.
• Provide a convenient contingent-fee billing method that allows you to wait to pay for your legal team’s services until there is a positive outcome to your case. The contingent fee also helps your attorney manage your deadlines and begin working on your case immediately, without waiting on a retainer or payment of hourly fees.

Is Your Case Past the Statute of Limitations?

Many individuals hesitate to speak with an attorney out of fear that they’re wasting their time, that it’s too late to file a claim, or that their pre-existing injury bars them from compensation. The easiest way to obtain factual answers to these questions and understand your best bet for moving forward is to talk to an experienced personal injury attorney.