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Abels & Annes, P.C. Personal Injury Blog

Can I Sue for an Old Injury?

can i sue for an old injury

Sometimes, clients will come into a lawyer’s office after some time has passed since they suffered injuries, asking whether they can still file a lawsuit. Of course, the answer will depend on the exact facts of your case, but there is one thing that we can state with certainty – the case will be far more complex than if you brought it shortly after the accident.

For that reason, we strongly advise you to begin the legal process as soon as you can if it is within your power. Some exceptions can allow you to file a claim or case for an old injury, but you should not rely on an exception applying if you can avoid it. The best thing you can do is reach out to an attorney to discuss your case.

Statute of Limitations in a Personal Injury Case

In any personal injury case, the statute of limitations applies. This law places a time limit on when you can file your case. The law aims to be fair to all parties, and defendants also have legal rights. One of them is not to have to worry about a lawsuit once a certain time passes after an accident.

In Arizona, the statute of limitations for a personal injury case is “two years after the cause of action accrues, and not afterward.”

The same time limit applies to both personal injury and medical malpractice cases. We will discuss what “after the cause of action accrues” below, but for now, you should know that the time limit is a hard deadline. Once the two-year period elapses, you lose the right to file a lawsuit. The court will not even have jurisdiction over your case to hear it on the merits. It will dismiss your claim, and you will not get your day in court. Even missing the statute of limitations by a day is enough for the court to dismiss a case.

Possible Exceptions to the Statute of Limitations

However, like anything in the law, the statute of limitations contains some gray areas. For example, if the defendant kept you from learning about the cause of your injury, you will get two years from when you discovered who was responsible. Nonetheless, courts strictly construe exceptions to the statute of limitations. They are the exception and not the norm, but they can help you in some situations.

Here are some reasons you might successfully sue for an “old” injury.

Minors Get More Time to Sue

Another way that you can sue for an old injury is if you were a minor when it occurred, and nobody filed a personal injury lawsuit at the time. Once you turn 18 years old, you get a new period to file a lawsuit on your own for the injuries that you suffered as a minor.

You will have two years from the time that you turn 18 to bring legal action. However, it may be hard to locate the proof you need to show that the defendant was liable. In most cases, parents will sue on behalf of their child when the child is still a minor. However, the law allows you to take action if your parents do not. For example, some children have exposure to hazardous substances growing up, and the parents did not file a lawsuit.

Sometimes an Old Injury Is Not Necessarily Old

While the statute of limitations in a personal injury case may be two years, it will generally run from when you knew that you were injured or should have known that you were hurt. Some accident injuries may not be apparent right off the bat. While you must take diligent measures to get the medical help you need right after the accident, some injuries may take time to develop. For example, you may have suffered a traumatic brain injury or a back injury that takes time to materialize.

For purposes of the statute of limitations, your condition might constitute a new injury, even if it arose long ago. Another example of this is a medical malpractice lawsuit. You may not realize until years later that the doctor made a mistake during a surgical procedure. Thus, the injury becomes new when you realize that you were hurt.

You May Not Learn the Cause Until Later

The statute of limitations will start to run when you both know that you were injured and you know the cause of the injury. If you have been suffering from symptoms of an injury for a while but have no specific diagnosis, you may get extra time to file a lawsuit.

For example, if exposure to toxic substances made you ill, but you did not know why you first became ill, you cannot know the cause at the time. This is often the case when workers receive cancer diagnoses after toxic exposure on the job. The fact of the exposure may not come out until years later.

Maximum Medical Improvement

Lawyers may advise you to wait until you reach the point of maximum medical improvement before you file a claim or lawsuit.

This is when your condition cannot improve any further. This sometimes happens long after the injury. Therefore, while your injury may be “old,” there were reasons why you were waiting to sue. People generally wait to file claims until they have more visibility about their legal situation.

However, do not wait too long until you seek financial compensation. Waiting for the point of maximum medical improvement is not an exception to the statute of limitations. If timing is an issue, you should not cut it close to the statute of limitations to file your case. Your attorney will know the right time to make your legal move and file a claim or lawsuit.

Preexisting Conditions

Just because you have an old injury does not let someone else off the hook when they are negligent. Defendants may need to pay when their actions have aggravated a preexisting injury. When someone is negligent, the general rule is they “take the plaintiff as they find him.” They do not get a pass in any way because of your prior condition.

A classic example of this is a neck or back injury. The jarring impact of a car accident will aggravate a condition, even if the prior injury healed. It does not matter if you were predisposed to a new injury. The defendant will need to pay for the damage they caused regardless of your personal history.

Nonetheless, a prior injury will make your case far more complex.

To clarify your condition you may need:

  • Medical records before your injury
  • Employment records that may discuss your limitations
  • Witness testimony from people who know you
  • Evidence of your hobbies and activities
  • Expert witnesses who can testify about your condition

Nonetheless, the facts and your diagnoses matter in a case like this. The defendant will argue that they were not the cause of your injury. The fourth element in the negligence test is that you would not have suffered injuries but for the defendant’s acts or omissions. A defendant may challenge you on the question of causation.

This is where your diagnosis and medical documentation matter. Be open and honest about your prior injury. Do not hide the effect of the accident and its impact on your condition. Never underestimate the ability of an insurance company to learn information. Your compensation will depend on the extent to which this accident aggravated an old injury.

You can expect that the insurance company will try to reduce your payment, claiming that their client did not cause your condition. In some cases, an insurance company may deny your claim in its entirety because they are always skeptical about preexisting injury cases. Here is where you will need a personal injury lawyer to fight back and keep the insurance company from casting doubt on your claim. If your claim receives a denial, you can file a lawsuit seeking damages.

The Difficulties of Suing for an Old Injury

If you are suing for an old injury, you may have some difficulties with your case. Regardless of when the injury happened, you need evidence that will prove that someone else was responsible for your injuries. The rules are not relaxed because of the passage of time.

The further you get from the time of your injury, the more challenging it becomes to prove your case. Any personal injury case will require that you prove what the defendant did and explain why it did not live up to the standard of care. You need more than just your word, and the burden of proof is on you. Any case must prove liability by a preponderance of the evidence, meaning that your allegations are more likely than not to be true.

Over time, it becomes far more difficult to muster the evidence required to prove liability. If you rely on witnesses, recollections fade over time, and it becomes harder to locate people who can testify. Physical evidence also gets lost and spoiled over time. Therefore, the further you get in time from the actual injury, the harder it will be to recover financially.

What to Do After You Suffered Injuries

Car Accident Lawyer, Dave Abels
Dave Abels, Personal Injury Lawyer

The key is to not be in a position where you are suing for an old injury. We understand that sometimes symptoms do not begin to show up until years later. Nonetheless, see a doctor as soon as you can after an accident, even if you do not think you suffered injuries.

An insurance company will focus on what they think you should have done after an accident. If they see that a claim has been filed more than two years after an incident, they will, without fail, try to deny your claim or move to have your case dismissed. This is an absolute certainty. The burden of proof will be on you to show why you did not discover the injuries within the statute of limitations. If the insurance company or a judge thinks that you should have been more vigilant about seeing a doctor, it can lead to a complete denial of compensation.

The other thing to do after an accident is to contact an attorney. Your lawyer will advise you of the steps that you need to take. While there are certain instances in which discovering an injury after the fact is unavoidable, a lawyer will tell you what you need to do after an accident to be in the strongest possible legal position.

If you wait too long after an accident to call a lawyer and get medical help, it will complicate your case and make it harder for you to recover financial compensation. If you do not have a viable case, a lawyer will tell you that, and it will cost you nothing to have that conversation.

Take action as soon as you think you suffered injuries. The time limit for the statute of limitations begins to run when you should have known that you sustained harm. The law may not take a kind view when someone delays getting medical treatment in the face of indications that they should have gone to see a doctor. The best way to avoid suing for an old injury is by taking legal action when the injury is still new.

Seek help from a personal injury lawyer as soon as an accident happens. If you feel anything unusual, seek medical attention, then seek legal help. You have nothing to lose by determining whether or not you have a case.


Abels & Annes
100 N LaSalle St #1710
Chicago, IL 60602
(312) 924-7575

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