What if …. I had a pre-exiting condition, do I still have a case?

With her 3 German Shepherds near, the spry senior citizen Ms. Kelley worked in garden pruning shrubs, planting seeds for spring, poinsettias and spreading bags of mulch for Christmas color. She happily sang Christmas tunes and played with the dogs. Though hard work, lifting, bending, squatting, shoveling, she took great pride in her yard being the neighborhood show stopper and loved her dogs. Now, time to get beautified, she raced to shower and change for her hair appointment. As she drove, she an 18-wheeler failed to stop at the stop light and careened into her small SUV causing airbags to deplore and her bodily flailing. The holiday spirit, her active life immediately changed.


This was her first time being in a collision. First time ever feeling severe pains, needing injections and surgery. She lived alone with her 3 dogs. Yet, the trucking company and their doctors argued that her age and pre-existing conditions was the cause of her pain and medical needs not the crash caused by the 18-wheeler. The victim had to prove that she was the victim while the truck driver and company admitted hitting her, but denied causing anatomical, emotional and financial damages.


You can almost bet everything you own that an insurance company lawyer and doctor will argue PRE-EXISTING CONDITION and DEGENERATIVE CHANGES in an effort to minimize their responsibility.


Many if not most people have some type of ailment from living prior to an injury like Ms. Kelley, some major and some minor that are often forgotten over time for which medical treatment and medications were given. Often the client does not associate those pre-existing conditions of i.e. cancer, blood pressure or heart surgery as important to the existing claim of injuries, yet they are important factors to consider.  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.


Do Not Be Discouraged By Pre-Existing Conditions

It is very important for the lawyer and all treating doctors to know the prior conditions to discern if there are new or worsening conditions. In short, the before versus after accident conditions of the client.


Even with arthritic aches and pains, being a cancer survivor and other ailments, Ms. Kelley, like many others, surely had an active and fulfilling life prior to the crash. Pre-existing conditions should be embraced as part of living. Victims who 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 records will be used to prove the extent of the pre-existing as compared to the current condition.


Egg Shell Rule / Take Victim As You Find Her

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 body was previously broken…as thin as an egg shell …which makes the victim more susceptible to injury. The outside of the person looks fine, 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, whether or not they had prior knowledge of the frailty and even if that frailty caused the cascading effect of resulting in greater injuries to the victim.


If you or a loved one has been injured to the wrongdoing of another’s negligent actions, contact the Smith-Gordon Law Team. We are here to advocate for you and walk with you through the process with zealous representation for your fair and just compensation. Learn more about us by visiting SmithGordonLaw.com. The consultation to review and discuss your case is absolutely FREE and confidential.


Written by Salesia V. Smith-Gordon, Esq.

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