Pre-existing Conditions

Josh and Aaron discuss how pre-existing conditions impact a personal injury case, and address some misconceptions clients tend to have.

Listen here or read the transcript below. FVF’s Summary Judgment podcast is available wherever you listen to podcasts including Apple Podcasts, Spotify, iHeart Radio, and more.

0:00:00.0 Aaron: Hey, Josh.

0:00:00.8 Josh: Hey, Aaron.

0:00:01.8 Aaron: What’s wrong with you?

0:00:02.8 Josh: Oh, man. God, how much time do we have here?

[laughter]

0:00:06.0 Aaron: I don’t have all day.

0:00:06.0 Josh: Yeah. Then let’s just pause this conversation and resume.

0:00:10.8 Aaron: Well, reason I ask you that question is sometimes what’s wrong with you goes a little deeper. What’s on the surface might not be all there is to see about someone’s injury. We’re injury lawyers, we deal with people’s injuries. They come to us with, maybe broken bones, maybe a structural problem with their spine. And sometimes they’re really afraid to tell us that this body part has been injured in the past.

0:00:40.5 Josh: Yeah.

0:00:41.1 Aaron: Talk about that.

0:00:42.7 Josh: Yeah. It’s this phenomenon. We’ve had multiple times in our career where we’ve gotten the case. Maybe it came to us a little bit later on, and we haven’t had an opportunity to educate our client, and we’re digging through the medical records and client has a history of back pain or a history of neck pain, yet they’ve given a statement to an insurance company where they tell them that they’ve never had any experience with any pain in those body parts. And, they say, well, I thought that that would be, maybe I was scared about…

0:01:19.2 Aaron: Though that would hurt my case.

0:01:20.6 Josh: I thought it would hurt my case. I was scared to talk about it, when the reality of it is, addressing the truth and making sure that you’re preserving the integrity of your case oftentimes just requires you to acknowledge that you’ve lived a life before and that things have happened to you before. You might have gotten hurt before. And that’s okay. Texas law allows that, allows you to come into a situation with some prior issues and still have your fair day in court.

0:02:00.8 Aaron: Do you remember several episodes ago when I made you jump in my time machine?

0:02:06.2 Josh: Yeah. That was fun.

0:02:07.6 Aaron: And we went forward in time.

0:02:09.2 Josh: Yeah, that was awesome. Yeah, I wasn’t expecting that. I was…

0:02:12.2 Aaron: Get in. Yeah. I’m gonna take you back.

0:02:14.4 Josh: I was just expecting backwards.

0:02:16.5 Aaron: Yeah, we’re going backwards. Yeah. This time we’re going backwards. [laughter] We’re going back… First, we’re gonna go back to law school, and find me and a cloud of stress and tiredness and fear and just understand that that person didn’t remember the case in the first place exactly right, even when he read it. But then we’re going back in time to the case that I read in law school, which was, I’m just gonna guess like 1900 Massachusetts.

0:02:47.8 Josh: Okay.

0:02:48.3 Aaron: And there’s a guy crossing the street and he gets hit by a car and he falls, hits his head on the sidewalk and gets hurt or dies. And the defense said he had an extraordinarily thin skull. You’ve heard of this?

0:03:09.4 Josh: The eggshell skull rule.

0:03:11.7 Aaron: Yes. What the heck are we talking about?

0:03:15.2 Josh: Yeah. So the whole purpose of this podcast is to help people understand, what does it really mean for my case if I have suffered an injury to a part of my body that has a history of problems? Whether there was some acute injury to that body part before, maybe you had previously broken the arm or broken the leg, or maybe you previously had slipped a disc, or just over time you’ve got wear and tear on your body that has put you in a position where you had some pain, you’ve had some issues, or maybe even not, but your body has now become more susceptible to being hurt in an incident than it would have been if you were just a fully healthy person. We always talk about this as being a preexisting condition. And what the law says is, if you’re a person that has a preexisting condition, but that condition was either asymptomatic or the symptoms from that condition were limited in some way, and then a person does something careless and hits you in their car or does something that causes you harm, and it aggravates that preexisting condition, which means either, it takes something that was underlying in your body that wasn’t causing you any problems, but was fragile and breaks it so that it now becomes problematic.

0:04:50.8 Josh: Or, you had something in your body that might have been mildly symptomatic and it makes it really really symptomatic now, or worsens it. Aggravates it. The law allows you to seek compensation for the aggravation for any of the new symptoms that you have developed as a result of the injury causing incident. All of the medical bills that come with that, all the physical impairment that come with that, future medical expenses, lost earning capacity, the whole toolkit of damages that are available in Texas law. So it’s really really common, particularly with spine injuries in our line of work, for people to come to us and they’ve hurt their back or neck and they go and they get an MRI and the MRI shows that they have degenerative disc disease. They have all these underlying conditions of their spine, but they’re saying, “Look, I never had any spine problems. Or maybe every now and again if I slept wrong, I’d have my neck tweaked, but nothing like this now.” But the imaging says you have all these problems and the defense lawyers point to it. “Oh, you have all these preexisting problems,” doesn’t matter.

0:06:11.5 Aaron: Agreed.

0:06:11.6 Josh: What matters is that we get it, we work with medical experts who understand how unnatural forces that are put on body parts that either were fragile or previously broken can make them worse. And we deal with it.

0:06:28.9 Aaron: And how a prior issue, be it congenital or traumatic can make you vulnerable. And what’s interesting about that is that sometimes our clients want to… They’re sheepish, let’s say about telling us like, “oh, I’ve actually hurt this body part before.” In fact, that makes our proof problem easier. Because a lot of times, what we’re dealing with is were the forces of the event, whether it was an explosion or a fall or a car crash, were they sufficient to move the anatomy in the way that it got moved, that put the pressure on whatever it put on, to cause either the break or the impingement or the herniation or whatever it is we’re talking about. And the whole point is if you’re already in a vulnerable state, it’s that much less force required to get you to the end result. And to put summary on what you said earlier about what the law allows in aggravation, the way I like to think of it, maybe this would make it easier for people to think of, is there’s a baseline and then you veer from the baseline after the event. Sometimes you come back to baseline. And sometimes you skew off forever.

0:07:51.2 Josh: Yep. Absolutely.

0:07:52.1 Aaron: And the jury’s job under Texas law is to measure, if you could draw these lines, it would be to measure the area between those two lines. And they do that by jury instruction.

0:08:05.4 Josh: Fair. Yep. Yeah, they sure do.

0:08:06.9 Aaron: And so, a lot of our lawyers, what we like to do with our cases is start with the jury charge. And so, in the very beginning of the case, if our client is telling us they had a preexisting condition, hopefully they’re telling their doctors the same thing. We want to make sure that they’re telling their doctors the truth at all times. Assuming that that’s all documented, then we’re gonna be looking at this jury charge that’s got this aggravation instruction in it, and that comes from Texas Supreme Court.

0:08:37.7 Josh: Yeah, absolutely. And actually, sometimes when people have a history of a particular type of problem, there’s a ton of medical imaging and medical documentation from when the event originally… Their original injury occurred or their treatment for that injury over time that we can use to show objectively…

0:09:06.3 Aaron: That’s the best.

0:09:07.5 Josh: This is what this body part looked like at some point prior to the crash or whatever event we’re helping our client with. And now you can compare the two.

0:09:18.4 Aaron: Yeah. Here’s 2 millimeters in 2017. Here’s 7 millimeters in 2024. And the only thing that happened in between is this car crash. It makes our lives a lot easier.

0:09:30.9 Josh: We’ve routinely had a lot of success helping people who had degenerative disc disease, degenerative spine issues, prior back and neck issues, prior knee issues, prior broken bones, congenital issues to fully maximize their recovery without making them feel like they have to compromise because they lived life beforehand. And Texas law does a really good job of making sure that even those people who have prior issues, pre-existing problems have their day in court. So if you’re dealing with something like that, you got a client who’s dealing with something like that, don’t shy away from it. Embrace it. But the most important thing is to always be honest.

0:10:20.2 Aaron: Can I add one more thing…

0:10:24.4 Josh: Sure.

0:10:25.1 Aaron: Before we go?

0:10:26.5 Josh: Of course.

0:10:26.6 Aaron: So if you’re wondering why in the year 1900 in Massachusetts there were cars driving around when they hadn’t been invented yet. [laughter] the reason that TransAm ran that guy over was because that’s…

0:10:41.1 Josh: You brought it back with time machine.

0:10:43.2 Aaron: Because of time travel. This is the hazard of time travel. Just be aware that…

0:10:45.1 Josh: You brought it back.

0:10:45.6 Aaron: Time travel is no joke. It is serious business. And be careful of what you change when you go back and forth to pre-modern times Massachusetts.

[laughter]

0:11:00.7 Josh: Thank you, Aaron.

0:11:01.8 Aaron: I just want people to know.

0:11:01.9 Josh: But they need to know.

0:11:02.5 Aaron: Yeah. Well, you need to know. Call FVF Law if you have pre-existing condition. And also for gosh sakes, be honest with your doctors at all times.

0:11:12.1 Josh: Talk to a lawyer.

0:11:13.0 Aaron: This is critical. Yeah.

0:11:14.6 Josh: Talk to a lawyer.

0:11:14.7 Aaron: Very good.