WHAT IF… I had a “PRE-EXISTING” condition, do I still have a case?
The spry senior citizen Ms. Kelley worked in her garden pruning shrubs, planting seeds for spring, and spreading bags of mulch with red poinsettias for Christmas color. She happily sang Christmas tunes and played with her German Shepherds. She took great pride in her yard being the neighborhood showstopper. With work done, she headed to her weekly hair appointment; but she never made it. As she drove, an 18-wheeler failed to stop at the stop light and careened into her small SUV causing airbags to deplore and her seat-belted body to flail. The holiday spirit, her active life, feelings of good health and joy in her golden years instantly change.
At over 65 years young, this was her 1st time being in a collision. 1st time ever feeling severe pains, needing injections and surgeries. Yet, the lawyers for the trucking company and their doctors argued that her age, degenerative changes, and pre-existing conditions were the cause of her pain and medical needs, not the crash caused by the 18-wheeler crashing into her. While the truck driver and company admitted to causing the collision, they denied causing anatomical, medical, financial (medical bills) and human damages of pain, suffering, anxiety, and mental anguish. In short, they argued that Ms. Kelley had pre-existing conditions of the spine, shoulder, knee for which she required treatment. The victim had to prove that she was injured and the extent of those injuries.
You can almost bet everything you own that an insurance company lawyer and doctor will argue preexisting condition and natural age-related degenerative changes in an effort to minimize their responsibility.
Many if not most people have some type of ailment or discomfort from simply living, some major and some minor that are often forgotten over time. No one expects or prepares to be injured. Often the client does not associate pre-existing conditions of i.e. cancer, blood pressure or heart surgery, or a neck, knee or shoulder complaints from prior times as important to the existing claim of injuries. Yet, prior complaints and treatment are important to any injury claim.
New injuries are compensable and so are worsened pre-existing conditions. Florida Law provides that a victim is entitled to compensation for conditions – physical and mental – to the degree that the accident made them worse. This is called aggravation or exacerbation of pre-existing injuries.
501.5(a), “Aggravation or activation of disease or defect.” It states, “If you find that the (defendant(s)) caused a bodily injury, and that the injury resulted in [an aggravation of an existing disease or physical defect] [or] [activation of a latent disease or physical defect], you should attempt to decide what portion of (claimant’s) condition resulted from the [aggravation] [or] [activation]. If you can make that determination, then you should award only those damages resulting from the [aggravation] [or] [activation]. However, if you cannot make that determination, or if it cannot be said that the condition would have existed apart from the injury, then you should award damages for the entire condition suffered by (claimant).” (emphasis added).
Embrace Pre-Existing Conditions as Part of Living.
It is very important for the client to disclose, to the best of her knowledge, all prior medical conditions to her lawyer and all treating doctors. This disclosure enables protection of the client, proper case assessment, treatment and overall case readiness.
Even with periodic aches and pains, being a cancer survivor and other ailments, Ms. Kelley, like many others, surely had an active and fulfilling life prior to being hit by a semi-tractor trailer. Don’t shy away from the facts of life. Injury victims who previously sought medical treatment may have an easier time proving the extent of their injuries to someone who has not seen a doctor in many years. The medical history records will be gathered and will be used to prove the extent or lack of the pre-existing condition as compared to the current injury.
An example, a knee complaint deemed as arthritic is not the same as an ACL or meniscus tear. A shoulder strain is not he same as a rotator cuff tear or impingement. Whether the same diagnosis or different, doctor will determine the differences.
Egg Shell Rule / Frailty Is No Defense
Florida law says that the frailty of an injury victim is no defense to the wrongdoing caused by the defendant. You must take the victim as you find her (him).
A person who injured another is unaware that the victim’s bodily injury susceptibility. The victim maybe unaware of her frailty, perhaps there were no symptoms. Outside, the person looks fine (like a carton of eggs), but what about the inside? According to the “egg shell rule” the defendant is liable for all damages that flow from their careless and negligent actions.
Each case is different. Ms. Kelley received fair compensation. For Ms. Kelley and many other clients, the Smith-Gordon Law team successfully fought against big business, trucking and insurance companies who put profits over people. If you or a loved one has been injured or died due to the wrongdoing of another’s negligent actions, contact Attorney Salesia Smith-Gordon for zealous yet compassionate representation for the fair compensation you deserve. The consultation to review and discuss your case is FREE and confidential. Learn more by visiting SmithGordonLaw.com
Written by Salesia V. Smith-Gordon, Esq.