It is a common belief amongst juries that any pre-existing condition that a plaintiff might have is not compensable in a lawsuit. However, in Florida, this is not entirely the case. Depending on the nature of the condition, you may be entitled to damages for a pre-existing condition aggravated in the current accident. That is, you cannot collect damages for a pre-existing condition in itself, but you can collect damages for a pre-existing condition made worse. It is important to do your research and understand the law, as it can be quite complex.
Juror Bias and Pre-existing Conditions
There can be some juror bias against a plaintiff with a pre-existing condition, even if that condition is compensable by law. We have been indoctrinated with the belief that anyone trying to claim a pre-existing condition as an injury is committing fraud, when under Florida law, that is not so. Yet the bias persists. Routinely, plaintiffs are required to meet high standards of credibility, and claiming re-aggravation of a pre-existing condition can severely damage that credibility with jurors who have been taught that only brand new injuries are compensable.
This bias can actually lead plaintiffs to conceal their pre-existing conditions out of fear, when the proper thing to do is promptly and accurately disclose. A failure to disclose a previous injury, especially an injury to the same part of the body, can affect the plaintiff’s credibility with a jury, but also with insurance adjusters. Without the explanation of a previous weakening of the body in a certain area, an adjuster may arrive at the conclusion that a plaintiff is lying about their current injury.
Jury instructions are very clear on assessing pre-existing conditions in plaintiffs. The Florida Standard Jury Instruction #501.5(a) states that jurors should try to separate the amount of harm caused by the accident versus the harm that had existed previously in the body. However, if they cannot do so, then they should award damages for the entire condition suffered by the claimant. The law is on the plaintiff’s side if the injury cannot be separated from the pre-existing condition.
An example of a pre-existing condition that might fit under this jury instruction is degenerative disease, such as amyotrophic lateral sclerosis (Lou Gehrig’s disease). Degenerative diseases can be present in the body while asymptomatic, and an accident can trigger damage, which might expose symptoms that would not otherwise appear until later in life.
Another type of pre-existing condition that might be compensable is an old injury which has healed, but remains weaker than it would otherwise have been. This type of injury is the basis for the “eggshell plaintiff” rule, which states that the plaintiff must be taken as they are found at the time of the accident. If a plaintiff has a pre-existing condition that may leave them weaker than the average person, they must be evaluated on that basis, not on the basis of an ‘average’ or ‘healthy’ person.
Contact an Attorney in Miami
If you need help navigating the complex area of how to deal with a pre-existing condition or injury, Kaire & Heffernan, LLC can help. Call our Miami office today.
Mark Kaire has been practicing law in Miami for nearly 30 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for many years.