Claiming that the plaintiff’s injuries are preexisting is a favorite defense tactic. Less responsibility for them. Some injuries, like herniated intervertebral discs and torn or frayed shoulder tendons, are extremely susceptible to this tactic. The defense argument is that the conditions are the result of natural aging and/or prior accidents.
Whenever possible, we like to counter this tactic by presenting prior medical records that are silent with regard to complaints similar to those for which we are seeking compensation. While this strategy may not eliminate entirely the preexisting condition argument, at the very least it shows that any such preexisting condition was aggravated in the accident. Florida law authorizes compensation for aggravation. See C. F. Hamblen, Inc. v. Owens, 172 So. 694 (Fla. 1937) and Florida Standard Jury Instruction 501.5a.
One of our recent cases demonstrates the point. Between September, 2013 and March, 2014, our client was involved in three separate motor vehicle accidents. While the third was the most serious, she sought medical treatment from the same board certified orthopedist for neck and back pain in all three. The doctor ordered cervical and lumbar MRIs to assist in diagnosing her injuries.
The third accident also elicited a new complaint of left shoulder pain. The doctor ordered an MRI of the shoulder which demonstrated rotator cuff damage.
Anticipating that the third accident insurance adjuster would like to blame the shoulder damage on the prior accidents and age-related degeneration (our client was born in 1956), we beat her to the punch. Presenting her with an organized package of medical records from each accident, we argued that the absence of previous shoulder pain and a shoulder MRI demonstrated the third accident’s role in causing the shoulder injury, the logic being that had our client injured or aggravated her shoulder previously, it would have been noted in the medical records and an MRI would have been ordered. It was a solid argument that the adjuster accepted. The case settled on reasonable terms.
As the medical records from each accident were coming in, but before I analyzed them closely, I was concerned that the three accidents so close in time would prevent me from being able to clearly attribute any of the injuries to the third accident. However, once I started reading, I realized what I had. I went from being concerned to pleased.
Contact us toll free at 866-785-GALE or by email (firstname.lastname@example.org) for a free, confidential consultation to learn your legal rights.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.