Pre-Existing Conditions and the Eggshell-Plaintiff Rule

Published July 17, 2012 · Injury Law Basics

A pickup rear-ends you at a light on Far Hills Avenue. Your neck and low back have hurt every day since, and your doctor has ordered an MRI. Then the adjuster calls and says the film shows "degenerative changes" and "arthritis," so the crash could not really have caused your pain. If that conversation sounds familiar, this post is for you.

The rule: a wrongdoer takes you as he finds you

Ohio negligence law has a principle that lawyers call the "eggshell-plaintiff rule" (or "thin-skull rule"). The idea is simple. A person who carelessly injures someone is responsible for the harm that person actually suffers, even if a healthier or sturdier person would have walked away with less.

The name comes from an old teaching example: if a careless blow lands on a person whose skull happens to be as fragile as an eggshell, the one who struck the blow cannot complain that an ordinary skull would have survived. The victim's fragility is not a defense.

In an injury case, the rule means two things:

• The at-fault party cannot escape liability because you were vulnerable. If a 55-year-old with a stiff, arthritic spine is hurt worse in a rear-end collision than a 25-year-old would have been, the driver who caused the collision answers for the 55-year-old's actual injuries.
• Aggravation of a pre-existing condition is a compensable injury. If you had a condition that was stable, quiet, or manageable, and the crash made it painful, limited, or in need of treatment, that worsening is a harm the law recognizes. You can recover for it.

What you cannot recover is compensation for the part of the condition that existed and would have troubled you anyway, crash or no crash. That line between "what was there before" and "what the crash did" is where these cases are won or lost.

Why the adjuster loves the word "degenerative"

Insurance companies know that most adults over 40 have some wear in their spines. Radiologists routinely describe it as "degenerative disc disease," "spondylosis," or "osteoarthritis." Many people with those findings have no pain at all. So when an adjuster sees those words in your MRI report, you can expect a familiar script:

• "Our medical review shows your condition is degenerative, not traumatic."
• "You had a prior back complaint in 2008, so this is just the same problem."
• "We can offer something for a short soft-tissue strain, but not for the disc."

The argument is designed to split your injury into a small "crash" piece and a large "pre-existing" piece, and then pay only for the small piece. It works on people who do not know the rule and who do not have the records to answer it.

The honest answer is that the law does not require you to have had a perfect spine. It requires you to prove the crash made things worse than they were, and by how much.

How the before-and-after picture is built

Proving aggravation is a documentation project, and it starts the day of the crash. These are the pieces that carry the most weight:

Prior medical records. Your own history is the baseline. If your records show a flare-up in 2008 that resolved after six weeks of therapy, and then nothing for four years, that gap is your friend. It shows a stable condition. We gather those records ourselves rather than letting the insurer characterize them.

Prompt treatment after the crash. A visit to the emergency room or your family doctor within a day or two creates a contemporaneous record of new symptoms. We have written before about why you should see a doctor even if you "feel fine". In an aggravation case, that early visit is even more important, because it ties the change in your condition to the date of the collision.

Your treating physician's opinion. The most persuasive witness on aggravation is usually the doctor who has treated you before and after. A treating physician can say, in plain terms, that your condition was asymptomatic or well controlled, that the crash produced new symptoms and new findings, and that the treatment you need now is a result of the crash. Ohio juries listen to treating doctors.

Objective findings. Muscle spasm on examination, reduced range of motion measured in degrees, positive nerve-tension tests, and changes between an old imaging study and a new one all help separate "arthritis that was already there" from "a disc that was injured on the date of the crash."

Function, not just films. Imaging shows structure. It does not show what you could do before and cannot do now. Co-workers, family members, and your own daily records of what the injury prevents are evidence too. A person who bowled on a league every Thursday for ten years and has not been able to lift a ball since the crash has a story a jury understands.

Honesty about your history is not optional

The flip side of the eggshell-plaintiff rule is that you must be straightforward about your prior condition. Insurance companies search for old claims and old records, and they will find them. A claimant who tells the adjuster or the doctor "I never had back trouble" and is then confronted with a 2008 chiropractic file has handed the defense its best exhibit.

We covered this at length in Why Honesty With Your Doctor Can Make or Break an Ohio Injury Case. The short version: tell your doctors everything, including prior injuries, and let your lawyer deal with how the history fits into the claim. A prior condition truthfully disclosed is a fact to be explained. A prior condition concealed is a credibility problem that can sink an otherwise strong case.

Prior conditions and case value

Adjusters price aggravation claims low because they assume the claimant cannot prove the "before." When the before-and-after picture is complete, the value changes. A crash that turns a manageable condition into a surgical one is a serious injury, and the damages include the full cost of the treatment the crash made necessary, lost income during recovery, and the pain and limitation that would not have existed otherwise. Medical expenses are measured the way Ohio juries measure them, which we explained in our post on billed versus paid medical bills.

If a claim involves a serious or permanent worsening of a pre-existing condition, it belongs in the hands of a lawyer who handles car crash cases regularly and knows what documentation a defense medical examiner will attack.

What this means for you

• A prior injury, arthritis, or "degenerative" finding does not bar your claim. The person who hurt you is responsible for aggravating what you already had.
• The claim is won on records: prior treatment, prompt post-crash care, consistent follow-up, and a treating physician who can describe the change.
• Never minimize or hide your history. Disclose it to your doctors and your lawyer and let the records tell the story.
• Do not accept an adjuster's "degenerative" explanation as the final word. It is an opening negotiating position, not a medical conclusion.