[Music] Welcome to the Millennial Lawyer Podcast. Hello and welcome to the Millennial Lawyer Podcast with personal injury attorney Mark Shirion. I am your host Kevin Rosenquist and today’s episode is insurance versus reality. How to navigate claims involving preexisting conditions. Mark, welcome back. 

Happy to be here, Kevin. 

So, this is an interesting topic, pre-existing conditions. How do pre-existing conditions typically influence the evaluation of damages in personal injury cases? 

Pre-existing conditions complicate damages because the defense loves to say you are already hurt, but the law does not let them off that easy. So, if an accident worsens an old injury, like a bad knee now needing surgery, uh damages reflect that aggravation. So, the challenge is proving what’s new versus what was already there. Without clear evidence, insurance companies lowball offers, claiming it’s all pre-existing. Uh, so it’s a fight to show the accident flipped a manageable condition into a lifealtering. 

That’s a good way to put it, too. Manageable condition versus lifealtering. 

That’s what you’re looking to show. Correct. Yeah. 

There’s a term eggshell plaintiff. Can you explain the legal concept uh that is and how it applies to clients with pre-exist pre-existing conditions? 

It’s interesting because you learn about the eggshell plaintiff in the first year of law school. So the way I would explain it is the eggshell plaintiff rule is a gem because it says you take your victim as you find them. 

So, if someone’s unusually fragile, like a pre-existing back issue, and your negligence shatters them, you’re still liable for the full damage, right? 

So, say a minor fender bender leaves a client bedridden because of an old injury. The at fault party can’t dodge responsibility just because they didn’t know. So, it’s a shield for clients with vulnerabilities, ensuring they’re not penalized for their starting point. So, that’s how you learn about it in law school. You kind of take the plaintiff as you find them. So it is like I said a shield for clients with vulnerabilities. 

And to make sure everyone understands, this is an actual legal term and it’s not just a random thing that people say. 

No. And like I said, you learn about it in law school. Yeah. And it is correct. It is an actual legal term. 

Okay. Interesting. I never heard that one before. That’s definitely but it makes sense because Yeah. 

There are some people I mean Yeah. Yeah. If you have a messed up back and you had surgery, it doesn’t mean you are susceptible to back injury. That’s just how it is. 

Exactly. In your experience, what strategies can plaintiffs use to effectively address the presence of pre-existing conditions when they’re pursuing a personal injury claim? 

First is transparency. You know, disclose the condition up front so the defense can’t use it as a surprise weapon later on. So I think first and foremost being extremely transparent and upfront about the pre-existing condition you know then focus on differentiation so show how life was manageable before and miserable after a doctor can connect the dots and a doctor would be able to say this crash turned a stiff neck into a constant agony so timing helps too consistent medical records before and after the accident build a clear before and after story. So, it’s about framing the narrative. The accident didn’t create the condition, it amplified it. 

You mentioned insurance companies like to point at pre-existing conditions. Do they often kind of, you know, for lack of a better term, weaponize it to try to work it against the plaintiff?

Absolutely. Any opportunity they have to weaponize it against the plaintiff, they will take that opportunity to show that this condition was there before the accident and is not related to the accident. So they’re trying to say it’s the same as it was before. It was already there and you’re trying to say no no no it’s far worse because of the accident. If you can demonstrate that. 

Absolutely. Yeah. Easier said than done sometimes I imagine. Well again we rely on the medical records. Yeah. You know and I have to say sometimes it doesn’t exasperate. It was bad before and it was just as bad after the accident. Right. Um, and it didn’t make it any worse. It may have just, you know, may have exasperated but may not. 

So, we rely on doctors. It’s not us that are able to make that call, right? 

We do rely on records to demonstrate that if it’s available. 

Yeah, that’s a good segue to my next question. What type of medical evidence is the most compelling when demonstrating how a personal injury, you know, did exacerbate a pre-existing condition? 

Right. So comparative medical records are king. So MRIs, X-rays, pre and post accidents showing new damage like a worsened disc bulge or herniation. Doctor testimony is huge too. Uh so a specialist saying that this trauma accelerated arthritis by years carries a lot of weight. Treatment records matter. Sudden surgeries or meds you didn’t need before, you know, scream aggravation. So juries love hard data over vague complaints. So specificity wins. Yeah, definitely. 

And insurance companies, what do they try to do to you know how they handle the claims involving pre pre-existing conditions? Meaning like what will they do, what tactics will they use to try to say, “Oh, no. This wasn’t any worse than it was before.” 

Insurance companies pounce on pre-existing conditions. They’ll argue it’s all unrelated to the accident, trying to slash payouts. You know, they cherrypick old records to muddy the waters. Clients can fight back by arming themselves with evidence, detailed medical records, consistent treatment history, even personal journals showing the change. So, and obviously you don’t want to negotiate alone. You want to retain an attorney who knows their playbook. So push back with facts, not feelings, and they’ll have to take you seriously. 

Do you find that a lot of people sort of don’t realize that, you know, do they do they maybe go, “Oh, well, my back was jacked up before and maybe don’t pursue a claim because they don’t realize how much the accident impacted their injury.” 

You see that all the time. I feel like that’s been happening all the time. A lot of people underestimate the damage without realizing it because they were previously in pain for something that was unrelated to the accident. So you see that a lot too. People do underestimate and undervalue the damage that befell them. 

Yeah, you see that a lot. Yeah, I’m not surprised. I mean, I could see that if someone’s like, “Oh, yeah, my back was jacked up or I got a bad shoulder already.” That they’re they’re I’m not going to go through the whole, you know, claim process, blah, blah, blah. And that that could come back to bite them, right? What steps can clients take early in their case to ensure that their pre-existing conditions are appropriately documented and and considered? 

So, you have to start with a baseline. Gather all prior medical records before the accident to show what life was like after the accident. So after the crash, see a doctor ASAP. You know, even if it’s just worse pain, delay looks suspicious. Keep a symptom log, dates, severity, limitations. It’s about building a paper trail that’s bulletproof from day one. 

Yeah. Yeah, that makes a lot of sense. and I’m imagining that it’s important for clients to continue their ongoing medical treatment for a pre-existing condition, especially in the context of a personal injury claim. 

Yeah, it’s critical. Gaps in treatment are blood in the water for insurance companies. They’ll say it’s not bad enough to treat. Uh it’s not our problem. Ongoing care shows the conditions are real and the accident’s impact is lasting. So, it also strengthens your credibility. Juries don’t buy I’m suffering if you’re skipping doctor visits. 

So consistency in treatment is your armor. It makes sense to say that if a doctor’s treating you that after the accident, if it does get worse, then or if it is worse, the doctor should be able to tell, right? Like they should be able to tell that your condition has gotten worse since the accident. 

Yes. But here’s where I see an issue. You might be seeing a new doctor that didn’t treat you for that prior injury. So unless you tell the doctor, I have this pre-existing issue or something to that effect. If they didn’t treat you for that prior issue, then the records aren’t going to reflect that. So that’s one thing to keep in mind. 

Yeah, that’s a good point. All right. Well, thank you for tuning in to the Millennial Lawyer Podcast with New York litigation attorney Mark Shirion. To connect with Mark, visit shirianpc.com. And uh please be sure to like and subscribe to our channel. We love having you be part of our community. And uh Mark, great having you here as always. Thanks so much for all the insight. 

Thank you so much. Thanks for watching. Be sure to hit that like and subscribe button and leave us a review in the comments.