Aggravation of a Preexisting Condition

What is a Preexisting Condition or Preexisting Injury?

Preexisting injury and preexisting conditions are legal terms that refer to a condition in a person that predated the accident they are making a claim about. If the injury or condition relates to the same part of the body that the personal injury plaintiff is seeking compensation for in their lawsuit, then it can create problems for the litigants and the jurors in sorting out what constitutes fair compensation for the injuries actually caused by the tortfeasor’s negligence. This type of injury is extremely common in cases involving injury to the spine since gravity takes a toll on the shape of the human spine over time.

What Does Aggravation of a Preexisting Injury or Preexisting Condition Mean?

Aggravation of a preexisting injury or aggravation of a preexisting condition is the degree to which an injury or condition that a plaintiff had before an incident that forms the basis of a negligence lawsuit was made worse by the incident that forms the basis of the negligence lawsuit. In states that follow comparative negligence law such as Texas, the fact that the plaintiff has a preexisting condition or injury does not bar him/her from bringing a personal injury claim. The law requires a tortfeasor to “take the plaintiff as he finds him.”  Thus, the tortfeasor is responsible for compensating the plaintiff for the degree to which the preexisting condition or injury was aggravated or made worse.

How Will A Reaggravated Injury Affect My Case?

work hardeningWhen you have a preexisting condition and therefore must pursue the case as a reaggravated injury claim, this can have several effects upon your case. First off, jurors often find it difficult to understand how to gauge how a preexisting condition was aggravated much less place a value on the pain and suffering caused by it. Your attorney will need to bring forth evidence establishing what your condition was before and what it was like after the event that forms the basis of the lawsuit reaggravated your injury.  He may also need to hire your treating doctor or even an independent medical examiner to review the records of your condition before and after and testify about any documented differences.

What Sort of Evidence Is Used to Prove Aggravation of a Preexisting Condition?

Every case is different. Thus, the evidence required to prove an aggravation of a preexisting condition varies from case to case. However, here are some of the things our personal injury attorneys have used to help jurors understand that a plaintiff has suffered an aggravation of a preexisting condition: medical records, employment records, Injury witnesses, evidence of hobbies, and employment evidence.

Prior vs Post Medical Records

In most preexisting condition cases, you need to get prior medical records to show what treatment the plaintiff was receiving prior to the accident. If MRIs or X-rays before and after the accident demonstrate an objective change, your job is easier. In most cases, you do not have this.  However, there are other ways to use prior medical records.  If the plaintiff had not seen a doctor in years and suddenly has to undergo extensive care after an accident, that’s a good indicator that his pain level increased.  If he was getting passive care before and responding well and suddenly he needs surgery, that is evidence of aggravation.

Employment Records

Often employment records can be beneficial in proving a change of condition regardless of whether you are making claim for a work injury.  If your client has a solid work history and rarely misses work prior to an accident, but then cannot work afterward, this is evidence of an aggravation of a preexisting injury. If the records reflect a change in work status from a physical position to a sedentary position after an incident, that can be good evidence. Obviously, the absence of these things in the records can also be used against you. Thus, know your case facts.

Injury Witnesses

A witness who has no dog in the fight but knows your client’s situation is an ideal person to tell the jury about how a plaintiff’s condition has changed from before to after an event. Employers, coworkers, and neighbors can all be good witnesses. Most jurors distrust friends and family members, but some may be good witnesses anyway.  Spouses know the plaintiff the best and can also make good witnesses for this reason.  Lastly, witnesses such as gardeners, lawnmowers, handymen or anyone else your client had to hire to assist after an accident can be beneficial in proving a change in condition. The key is that they must have seen what you were like before the accident and noted a significant difference in your demeanor or activity level after the accident.

Hobbies and Activities Evidence

If the injured party had physical hobbies such as bicycling, going to the gym, fishing, hiking, etc., and had to give them up, this can be good evidence of aggravation. Receipts, contracts, workout partners, or fishing buddies can all be useful to prove a change in physical condition.

Cost and Risk Considerations

Sometimes injury victims have difficulty finding an attorney when they have suffered an aggravation of a preexisting condition.  This may be because of the additional anticipated cost of bringing the claim. Insurance companies often fight cases involving aggravation of a preexisting condition forcing the plaintiff to file a lawsuit. Ordering extensive past records and employment records can add thousands of dollars to the cost of bringing a case. If an expert witness must be retained, this can easily add $5,000-10,000.  Expert witness costs and some other costs are not recoverable from the other side even when you win the case. Those costs come out of the money recovered for medical bills and pain and suffering. If the case is only worth $10,000.00 and you spend $8,000.00 in expert fees to recover it, you will not have enough left to pay the medical bills much less the client or the attorney.

To make matters worse, most experienced personal injury lawyers have had at least one case where a client told them they were “fine” before the accident, and several thousands of dollars later the records proved otherwise. This risk and the associated costs sometimes make it economically unfeasible to take on reaggravated injury cases. A personal injury lawyer working on a contingency fee typically funds the litigation and only gets his money back plus a fee if he wins. As a result, he has to make wise investments in cases that are 1) likely to result in a recovery, and; 2) do not cost more to pursue than is likely to be recovered.

Free Consultations

If you have suffered an aggravation of a preexisting condition or other types of injury due to someone else’s negligence, call Simmons and Fletcher, P.C. for a free consultation.  Not every preexisting condition case is right for litigation. But, if we do your case, we charge no fees unless we make a recovery. Call (713) 932-0777.



If you have a personal injury case and would like to know whether it is something that our law firm can help you with, please fill out the form to the right and submit your information or pick up the phone and call us between 8:30 AM and 4:00 PM on Monday through Thursday and 8:30 AM  and 5:00 PM on Friday and out intake team can go help evaluate your case and determine who the best person is for you to talk to about your case. Consultations are 100% free and you have no obligation to hire us.


Simmons and Fletcher, P.C., rooted in Christian values, exclusively handles personal injury cases, advocating for the rights of accident and negligence victims. Our Houston-based team, dedicated to compassion and excellence, handles cases across car accidents, motorcycle accidents, truck accidents, slip and falls, dog bites, and other types of cases with a commitment to personalized care. Upholding integrity and client-focused service, we strive for impactful legal outcomes. For a detailed understanding of our approach and team, visit our attorneys page.

Contact us for a free case assessment.