Almost everyone has something in a medical chart. A concussion in high school, headaches treated a few years ago, a back injury, a period of depression, an ADHD diagnosis. Insurers know that, and in brain injury claims they use it. Washington law answers the argument directly: what matters is not whether a condition existed, but whether it was causing symptoms in the period right before the collision. A condition that was dormant and then lit up by a crash is treated as the crash’s doing. Our Seattle personal injury attorneys work this issue routinely.
Washington Law Turns on Whether the Condition Was Already Causing Symptoms
Washington courts have a specific rule for this situation, and it is more favorable to injured people than most readers expect.
In Bennett v. Messick, decided in 1969, the Washington Supreme Court stated the rule this way. A latent condition may exist without causing any pain, suffering, or disability. When that condition plus an injury brings on pain or disability by aggravating the condition and making it active, the injury, and not the dormant condition, is the proximate cause of the pain and disability. The court added that the at-fault party is then liable for all damages as the direct result of the accident.
The Washington Supreme Court restated that rule in 2004 in Harris v. Drake. When an accident lights up and makes active a pre-existing condition that was dormant and asymptomatic immediately prior to the accident, the court wrote, the pre-existing condition is not a proximate cause of the resulting damages.
Read together, those two decisions move the question. It is not whether you had something in your medical history. Nearly everyone does. It is whether that something was actually causing you symptoms in the period right before the collision.
Why Brain Injury Claims Attract This Argument More Than Most
Two things about brain injury make this defense unusually attractive to an insurer.
First, the symptoms overlap with many other conditions. The Centers for Disease Control and Prevention notes that symptoms of a mild traumatic brain injury and concussion can be difficult to sort out because they are similar to other health problems. The agency lists headaches, attention and concentration problems, short-term and long-term memory problems, irritability, sadness, anxiety, and trouble sleeping among the recognized effects. Those are also the words that appear in charts for migraine, depression, chronic pain, and ordinary exhaustion. Anyone treated for one of them has a record an adjuster can point to.
The second is imaging. We built this practice around a point we return to constantly: a normal CT or MRI does not rule out a brain injury. When the scan comes back clean, and the chart shows a prior diagnosis, the insurer has the argument it wants, which is that nothing here is new. Understanding the symptoms that follow a traumatic brain injury is often the first step in showing that something is.
A clean scan did not decide the question in Harris either. Imaging taken about a month after that collision was read as normal, and the Washington Supreme Court still affirmed a directed verdict for the injured plaintiff on causation. That case involved a shoulder rather than a brain, so it proves nothing about neuroimaging. It does show that a normal image is not the end of the causation question in Washington.
The Record of Your Life Before the Crash Usually Decides It
If the legal question is whether a condition was dormant or already active, then the evidence that answers it is the record of how you were living before the collision. Assembling that baseline is one of the first things we do, and it draws on more than medical files.
The sources that tend to carry the most weight are these:
- Medical and pharmacy records from the year or two before the crash, which show how often a condition was treated and whether it was being actively managed
- Employment records, including performance reviews, attendance, and any accommodations already in place
- School or training records for a younger client, which put cognitive functioning on paper
- Household and financial records that show what a person was managing without help
- Accounts from family, friends, co-workers, and teachers who can describe the person you were in the months before
None of that is about minimizing the pre-existing condition. It is the opposite. A complete record showing a condition that was quiet, controlled, or long healed is exactly what makes the change after the collision visible to a jury.
Do Not Try to Hide the History
The instinct to leave a prior diagnosis out of the story is understandable, and it is the single most damaging thing a person can do to a claim. Insurers obtain medical records. When a gap turns up later, the argument stops being about medicine and becomes about credibility, and that is a much worse argument to have.
Tell us everything, including the parts you think will hurt. A history we know about early is something we can work with. A history that surfaces in a deposition is not.
When the Condition Was Already Active
Not every case fits the rule described above. Sometimes a person was already having headaches, already in treatment, already struggling before the crash. Harris states the rule for a condition that was dormant and asymptomatic immediately before the accident, and the facts of Bennett fit that same pattern, so on their face those decisions do not resolve the situation of someone whose condition was already active.
In our experience, an already active condition does not, by itself, end a claim. The focus shifts to the change. The questions become what you could do before, what you can do now, and what the collision added. That is a harder, more medical case, and it usually turns on treating physicians who can compare the person in front of them to the person in the earlier records. It is also the kind of case where the long-term cost of a catastrophic injury is easiest to underestimate.
Washington Still Puts a Three-Year Limit on the Claim
Washington law generally requires that an action for injury to the person be commenced within three years. That is the period the statute sets.
The statute does not itself spell out when that clock starts running for a personal injury claim, and in brain injury cases the timing question is rarely academic, because symptoms and diagnoses often arrive weeks or months after the collision. Do not treat the three-year period as generous, and do not wait for a diagnosis to feel certain before asking someone to look at the deadline in your case.
Talk With Us Before the Insurer Finishes Building Its File
A pre-existing condition is a reason to get help early, not a reason to stay quiet. The sooner we can assemble the record of how you were functioning before the collision, the harder it is for anyone to claim that nothing changed.
We offer free case evaluations, and you will not pay any attorney fees until we recover for you. If travel is difficult, and after a brain injury it often is, we can meet you at home or another location convenient to you. Se habla español. To talk with our team, contact Brain Injury Law of Seattle.
