John J. Keller

Making a Claim for Aggravation of a Pre-Existing Condition Virginia law says that one who causes injury to another person through negligence or wrongful behavior is financially responsible to that person for all damages that occur as a direct result of the negligence. The law requires that the innocent victim of an auto accident, for example, must be made “whole” by the wrongdoer, who we often refer to as the tortfeasor. Sometimes, the negligent driver’s representatives will claim that the injured claimant already had a bad back, a permanently injured knee or some other chronic condition for which he or she is now asking financial compensation. The negligent party will stress aggressively that the claimant is trying to get compensated for conditions and pain that existed for a long time prior to the accident. This is where an effective attorney comes into to the picture to show that the client’s injuries are due to the accident and not caused by the prior condition. The Tortfeasor Takes the Injured Party as He Finds Him Virginia cases hold that the tortfeasor takes the plaintiff as he finds him. This is also called the “egg-shell” plaintiff theory. It means that the tortfeasor cannot necessarily base the measure of damages owed to the victim on what would be expected of a normal person in normal physical shape. For example, if a distracted driver plows into an elderly person crossing the street in a protected crosswalk, the driver is legally liable to compensate the injured person for all injuries arising from the impact. Because the victim is elderly and has numerous conditions of old age, it will likely turn out that he or she will take a longer time to recover and require more medical treatment to recover. If that individual suffered from a prior condition of Parkinson’s disease, for example, that was largely under control and in remission, a violent physical impact could medically trigger a recurrence and escalation of symptoms that would not normally have occurred. It that escalation of symptoms continues and becomes a serious problem for the injured person, the negligent driver cannot complain that this is due to the victim’s pre-existing condition. If the plaintiff has strong medical testimony and evidence that the physical impact, under the circumstances, was a substantial factor in causing the resurgence and intensification of the condition, then the negligent driver will be financially responsible for those damages. Although the attorney is ethically bound to claim only those injuries or aggravations caused substantially by the accident, the attorney is also primarily concerned that the client is not deprived of substantial monetary compensation by allowing the other side to successfully claim that these are merely the usual symptoms of the pre-existing condition. The Tortfeasor is Not Liable to Compensate the PreExisting Condition Itself The Virginia courts carefully delineate that the negligent driver is not responsible to compensate for the usual ongoing symptoms of the disease or condition. The driver is not responsible for compensating the victim for having a prior condition. Any acceleration or exacerbation of symptoms, however, which are attributed by prevailing expert medical testimony to the accident, must be compensated. Consequently, one can collect for aggravation of a pre-existing condition in Virginia and other states. There are many twists and turns of human trauma and disease, however, and it can be difficult to determine what has come from the accident and what was there in the first place and thus not entitled to compensation. These are questions of legal causation and an effective attorney will show how the answers line up in the injured client’s behalf. The Treating Physician’s Testimony May Be Vital In Proving Exacerbation of a Pre-Existing Condition The injured party’s attorney will give the insurance adjustor the written report and records of the treating physician. In some situations, it may be necessary to retain an independent physician and provide that expert’s report also. The reports will describe the condition and its status prior to and after the accident. An experienced attorney will develop in exacting detail the presence of an aggravation or exacerbation of a preexisting condition for the insurance adjustor. As the personal injury claim proceeds through the claims process, the injured person is receiving medical attention and treatment. In the above example, the patient will likely be treated by his or her regular treating neurologist. The attorney will in many cases meet early on with the neurologist to get their mutual terminology and understanding of the situation on the same page. A prepared and knowledgeable treating physician can be a valuable asset in obtaining a maximum recovery. There Must Usually Be A Serious Physical Impact To Claim Aggravation of a Prior Mental or Emotional Condition Although aggravation of pre-existing conditions is a mainstay of Virginia law, a rather narrow exception prevents recovery to persons who are hypersensitive emotionally. The courts have not opened the gates to allow for compensable emotional damages that are not triggered by a strong physical impact. These disqualified claims are sometimes called “mental-mental” and they are the most difficult on which to collect damages under the current state of the law. Generally, one cannot recover for emotional and mental distress in the absence of a physical impact or injury that is established as the cause of those symptoms. What are some other examples of exacerbation of a pre-existing condition? • A back condition is inflamed and accelerated by the impact of a violent rear-end collision; • Increased pain and inability to walk when a longtime underlying knee condition is aggravated after the knee goes violently into the dashboard in an automobile collision; • Aggravation from a motor vehicle accident of a prior disk herniation that had been under control through surgery and therapy; • A serious physical injury triggers an exacerbation of the symptoms of post-traumatic stress disorder; • A passenger with underlying chronic heart failure dies of a sudden heart attack after sustaining a violent impact to the chest and other parts of the body from an auto accident; In each of the above examples, the attorney prepares a case to show the adjuster and, where necessary, the jury, that the resulting injuries or aggravations were caused and/or triggered directly and substantially by the accident’s physical impact. In most instances, the treating physician’s report and/or testimony is vital. An effective personal injury attorney will be adept at communicating the legal and medical issues so that the physician will understand the case thoroughly. A physician who knows and appreciates that there was a pre-existing condition that is not compensable, but that the exacerbation of it by the accident is compensable, will be an invaluable asset to explaining these dynamics and maximizing the claimant’s recovery. Talk With an Experienced Virginia Beach Car Accident Lawyer If these issues are implicated in an accident that you or a family member have experienced, you can find out your rights and the strength of your claim by consulting with an experienced and dedicated personal injury attorney. If you received serious injuries in any auto accident that was another person’s fault, Virginia Beach personal injury attorney Jeffrey Brooke is a strong choice for the kind of help that you will need to prevail. The Jeff Brooke Team always keeps your and your family’s best interests at heart and aggressively pursues your case to get the full compensation you deserve. At The Jeff Brooke Team, we dedicate our personal injury practice to helping injured victims and their families. Contact us by phone at - or by using our online contact form. Jeff Brooke is a personal injury attorney devoted to helping individuals who have suffered serious and catastrophic injuries or lost a loved one because of someone else’s negligent and careless actions. The Jeff Brooke Team serves all of southeastern Virginia. The firm helps clients in the Greater Tidewater and Greater Hampton Roads areas, including in Virginia Beach, Norfolk, Portsmouth, Chesapeake, and Chesterfield. The Jeff Brooke Team also handles cases in northeastern North Carolina, including the Outer Banks. View our locations.