Aggravation of a Preexisting Condition
What is a Preexisting Condition or Preexisting Injury?
Preexisting injury and preexisting condition 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 a/k/a aggravation of a preexisting condition is the degree that a preexisting injury or condition that a plaintiff had prior to 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 that degree to which the preexisting condition or injury was aggravated.
How Will A Preexisting Condition Affect My Case?
When you have a preexisting condition and therefore must purse the case as an aggravation 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. He may also need to hire your treating doctor ot 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:
Prior vs Post Medical Records
In most preexisting condition cases, you need to get the prior medical records to show what treatment the plaintiff was receiving prior to the accident. If MRI’s or Xrays 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 the 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 an aggravation.
Often employment records can be beneficial in proving a change of condition. 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.
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, 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.
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 an aggravation. Receipts, contracts, workout 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 an aggravation of a preexisting condition forcing the plaintiff to file a lawsuit. Ordering extensive past record 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 these 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) not cost more to purse than is likely to be recovered.
If you have suffered an aggravation of a preexisting condition or other type 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 1-800-298-0111.
Paul Cannon has practiced personal injury trial law since 1995. He is Board Certified in Personal Injury Trial Law (2005). He has earned recognition as a Super Lawyer by Thompson Reuters in 2017 & 2018, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association in 2017. He is a Shareholder, trial lawyer and online marketing manager at Simmons and Fletcher, P.C. His legal writings have been published by the Texas Bar Journal, Business.com, Lawyer.com HG Legal Resources, Lawfirms.com, and others. He has been asked to give education talks and media interviews on dog bite law.