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Tony Caggiano
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Board Certified Civil Trial Lawyer
Board Certified Civil Trial Lawyer

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The Pre-existing Condition: Friend or Foe
As accident and injury lawyers, prospective clients seek our help after they are hurt. Whether the claim involves a car accident, theme park accident or a slip-and-fall in the grocery store, we must determine the strength of the case. Most clients are surprised to discover that it is not enough that they suffered an injury. We must successfully demonstrate three key pieces of information. 

(1) the defendant owed a duty of care
(2) the defendant breached that reasonable duty of care
(3) the defendant caused damages

However, there are many cases of absolute liability – the rear-end collision – for example. Others may involve a degree of comparative negligence or fault on the part of the injured party, as well as the defendant. Yet it appears the universal challenge we all face is the value of the damages caused by negligent conduct.

While many variables must be considered to properly determine the “value of the case,” there exists one factor which seems to divide the most ardent trial lawyers: the pre-existing condition. We certainly ask our clients if they have ever injured the same body part about which they are presently complaining. We want to know if the client had a virgin neck or back before the accident. For those clients that had a prior injury and treatment, does that really justify a smaller recovery? Does the insurance adjuster have the upper hand in negotiations because of a pre-existing condition?

Though each case is different, our experience with clients suffering a pre-existing condition shows that they can benefit from their injury history. This is especially true in low impact collisions and minor trauma incidents. Jurors want to believe that they would have handled the accident differently and avoided injury all together. It’s human nature to re-write the story. A pre-existing condition permits these jurors to justify to themselves why this particular person was injured. Suddenly, because of your client’s pre-existing condition, these jurors will gain understanding of the impact of the suffered injury, even if it’s a minor impact or trauma.    

Most experienced trial lawyers will agree that jurors tend to want to believe that they would have done something different than the injured party to (1) avoid the accident; or (2) avoid the injury. Not to get bogged down into the psychological explanations, suffice it say, jurors want to believe that either would not have been at that red light or they would not have been seriously hurt by that minor impact.  A pre-existing condition permits these jurors to justify why they would not have been injured, but completely understand why your client was badly hurt in such a relatively minor impact or trauma. 

No lawyer should routinely undervalue a client’s case simply because of a pre-existing condition.  Rather, the prior medical records should be obtained and thoroughly reviewed for objective evidence of structural abnormality and specific complaints. The existence or absence of prior radicular symptoms or other neurological signs should be considered. Furthermore consider the following: (1) the period of time since the date of the last medical treatment (2) the type of work and recreational activities the client has been able to perform since recovering from the prior injury (3) the length of time the client has been performing the activities of daily living without substantial difficulty. These factors will influence the value of the claim.  In many cases, a pre-existing condition may be a friend to those clients making a bodily injury claim.
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