Attorney Harvey Cohen Discussed Florida Law on Whether Aggravation of Prior Injury or Conditions Make a Difference In Your Ability To Collect Damages and Amount of Settlement.
In This Article:
- Compensation For Aggravation of an Old Injury or Condition From a New Accident
- The Concept of the “Egg Shell” Plaintiff
- Florida Statute 401.12(b) Concurring Cause
- Types of Physical / Medical Conditions Commonly Aggravated
- How To Document Your Case For Aggravation of a Pre-Existing Condition
- Come Clean With Your Doctor And Personal Injury Lawyer
- Beware of Social Media
- Document First and Decide Later
COMPENSATION FOR AGGRAVATION OF OLD INJURY OR CONDITION FROM A NEW ACCIDENT
You have to be very lucky to have never suffered injury or have some pre-existing physical issue that affects you in some capacity in your daily life. Whether you were injured in a home accident, a sports related injury, prior car accidents or falls or have some degenerative condition due to time aided wear and tear from life itself, most people (as they live longer) deal with some sort of compromise to their body. Just because you have a prior injury or a pre-existing condition doesn’t mean you shouldn’t be compensated if you your condition is aggravated and made worse due to the negligence of another!
Aggravation of a pre-existing condition is compensable under Florida Law just the same as a new injury! If you are hurt in a trip or slip and fall or a car accident or some other incident in which another party is negligent, you must prove that the negligence was the legal cause of the aggravated condition. You might think that because you were hurt before, you’re ability to pursue the claim is not worth it or that you may win a reduced settlement. However, in some circumstances, having a weakened condition that was aggravated can better explain how you may have been hurt in the first place. Remember, you may have a part of your body that is weaker due to injury or more susceptible to injury because of the existence of a prior injury. A minimal impact may not hurt a healthy back, while it might destroy a person with a weak back from a prior accident!
THE CONCEPT OF THE “EGG SHELL” PLAINTIFF
In Florida, a person who is negligent and injures another takes that person as he/she comes. The concept is known as the “eggshell plaintiff.” The story of the eggshell plaintiff is illustrated by a person walking down the sidewalk beneath a high rise apartment with balconies. A lady cleaning outside throws an old pot from her balcony. If she hits a person with a normal head and the pot bounces off and causes no harm, there is no damage that she would be responsible for. Unfortunately, if she happens to strike a person with an “egg-shell” head and that person’s head cracks open and suffers a brain injury, she is responsible even if it were not normal to have an “eggshell’ head. The same holds true for someone who has significant multiple areas of injury and would not have been hurt “but for” the severely weakened condition of his/her body. Another example would be the increased likelihood of a prior disc injury aggravation causing the need for aggressive treatment in a low impact collision or minor accident that may not have injured a person with a healthy spine!
The Standard applicable Jury Instructions in the State of Florida read as follows:
Florida Statute 401.12(b) Concurring Cause
In order to be considered the legal cause of loss, injury, or damage, negligence need not be the only cause. Negligence may be a legal cause of loss, injury, or damage even though it operates in combination with some natural cause or some other cause if the negligence contributes substantially to producing such loss, injury or damage.
Florida Statute 501.5(a) Aggravation or activation of disease or defect
If you find that the defendant 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 the claimant.
The jury instruction above is the instruction given to a jury if your case ever goes to trial and the jury is forced to determine, after listening to all of the evidence, whether to compensate you for aggravating a pre-existing condition. Therefore, it is of the utmost importance to understand from the moment of your injury, that you must be specific to inform all that treat you the difference between your physical condition, symptoms and abilities prior to the accident as opposed to after. In a car accident case, you will likely have to show a permanent aggravation within medical probability. In a trip and fall or non-motor vehicle injury, permanency is not required to receive damages, but failure to show permanency will limit your damages and therefore your compensation.
TYPES OF PHYSICAL / MEDICAL CONDITIONS COMMONLY AGGRAVATED
There are a variety of issues that can be aggravated in a traumatic accident or fall and it can occur to multiple areas of your body. The results of previous surgeries can be undone due to a new accident or incident. The results of previously successful physical therapy can be destroyed. Recovery from severe headaches after a concussion can come back with more frequency or intensity and even contribute to the process of dementia. An injury that only required therapy before (like a prior neck or back injury) may now require aggressive injections or surgery. Diagnostic studies like MRI may show a more significant disc herniation or tear or acute inflammation to a previously treated and resolved area. Arthritis can be accelerated (can be seen on X-ray) to the point where a knee needs replacement much sooner than had been recommended. Therefore, it makes sense that you would be eligible for the financial recovery of some or all of those costs.
HOW TO DOCUMENT YOUR CASE FOR AGGRAVATION OF A PRE-EXISTING CONDITION
Regardless of whether it happened in Broward, Palm Beach or Miami Dade Counties or elsewhere in Florida, in most circumstances, you know immediately that you are hurt from a fall or accident, especially if you have had symptoms in the same area previously, whether you received treatment or not. It is vital that you pay close attention to the difference in intensity, limitations, and duration of pain from any previous issue you had. If you were receiving active treatment from a physician, the best possible way to document before and after would be to go back to the doctor you were treated with and describe all new areas of injury, but more importantly, the difference in your pre-existing injury before and after. Who better to determine a permanent aggravation than the doctor who treated you both before and after?
Make sure to establish the increase in pain intensity, the duration, the difference in your range of motion and certainly, the difference in activities of daily living. It must be clear after giving your aggravated injury an opportunity to be treated and heal, that you suffered a discernable difference (that is permanent) as a result of the incident or accident. If you are seeing a new physician or obtaining treatment for a chronic issue from long ago that was aggravated, make sure you give the doctor a baseline description for how you were doing just prior to the accident?
It is not enough to complain to a significant other that your symptoms are worse. You must have a medical professional document your aggravation, compare it to the condition that pre-dated the accident, treat your issue, document your progress through therapy and diagnostic tests if warranted and upon reaching Maximum Medical Benefit, have enough information to provide a medical opinion that you suffered an aggravation that is likely to be permanent. There is no question that the more significant (aggressive) treatment for a prior condition you have, the easier it is to establish aggravation!
COME CLEAN WITH YOUR DOCTOR AND YOUR PERSONAL INJURY LAWYER
You may think that what your doctor or attorney doesn’t know about your prior injuries won’t hurt them and you may be right. However, it may hurt your case. Your doctor should be given a correct history of your injuries and symptoms in your past, which can be qualified based on how you had responded to care and how you were feeling just prior to the accident. If you fail to provide adequate information, it can certainly undermine and discredit any opinion your doctor may provide in the future that in any way attempts to relate your aggravation to the recent accident or incident. You can win or lose a case based solely on how the jury perceives your credibility. If a jury has a reason not to believe you when you tell them how much worse off you are, you will likely lose. If you lie to the doctor or omit something significant about the part of your body that was previously injured, it will discredit the doctor’s opinion and dirty you in the eyes of the jury. Your lawyer can’t help you without full knowledge of your medical history.
BEWARE OF SOCIAL MEDIA
Social media is a very popular way to connect and share your life with those you wish to share it with. However, if you pursue a claim in court, your social media posts are discoverable by the party who you are claiming damages from. Even if you are hurt and suffering from a significant aggravation of a pre-existing condition, photographs showing you smiling and having a good time can give off the impression (even if you are miserable except for the smile)that you are not hurt or certainly not nearly as bad off as you claim to be. Instagram, Facebook, Snapchat, photographs, movies/video are all discoverable.
DOCUMENT FIRST AND DECIDE LATER
Don’t wait to visit a doctor hoping that a previously injured area will be ok in a week or two. The sooner you document the difference, the more likely you will be successful in your case. If there is any visible signs of injury like bruising or swelling or laceration or redness that shows torque or trauma to an area of your body, make sure you take multiple photos of it. If you wait too long to document aggravation, your case may be over before it begins! There is no reason to wait on a lawyer if you are hurt, as payment to personal injury lawyers is contingent on the resolution. If your case turns out to be something less than what you thought it might be and there is no financial recovery, there will be no lawyer fee.
NEED REPRESENTATION OR ADDITIONAL QUESTIONS ANSWERED?
Mr. Cohen has exclusively represented seriously injured individuals, and the families of those whose deaths were caused due to the negligence of others, since 1990. Mr. Cohen has resolved thousands of cases over his 20+ years of practice ranging from the families of victims of wrongful death, to individuals who sustain whiplash injuries in an automobile accident. Email or call Cohen and Juda P.A at (954) 424-1440 and we will speak to you and handle your case personally. Tell us what happened.
Cohen and Juda P.A.
8211 W Broward Blvd, Suite 310
Plantation, FL 33324
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