Speaker 1: Hi, everybody. This is our Katie Frechman, a New York City personal injury trial attorney, and today we're talking about pre-existing conditions. Can you recover after an accident or injury when you already had a pre-existing condition, meaning you already had the condition, the medical condition before, but then the crash or the trip and fall or the incident made it worse? And the answer is yes. And what we're going to do in this video is we're going to actually look at the pattern jury instructions in New York and the elements that you have to prove in order to recover. So I would first say that when approaching a case of a pre-existing condition, it's important for the lawyer to frame that and to really start planning as early as possible. Even before the trial in New York, you have to plead a aggravation and exacerbation of a pre-existing condition. So for example, we have something known as a bill of particulars. So when we file a lawsuit, the defendant will put in an answer that is their appearance, and then they will ask certain questions, including what is the injury. So the plaintiff has to answer those questions, including what is the injury. So the plaintiff has to ask certain questions, including what is the injury. So if you know as an attorney that your client has already had a prior injury, like for example, they had another car crash where they had a C4, C5 herniated disc. So then you would have to put aggravation of pre-existing neck injury. I don't know if you have to necessarily be so specific that it's an aggravation of the C4, C5, but you do have to plead aggravation in some way. If you don't plead it at all, then you may be precluded from arguing it, and you may be precluded from a recovery. And then it becomes really muddy because the defendant can still argue it, right? They could say, hey, it's not caused by this crash. It's caused by something else, or he had this before, but you can't recover for it. And so a lot of the departments have that. Some of the departments, like I read the third department or the fourth, maybe the fourth department, that's aggravation. And so a lot of the departments have that. And so a lot of the more upstate in New York, they actually allow you to do it when you don't plead it. But in most of the departments, I believe the first department, the second department, there is case law that you do have to plead it. So that's very important. And the other thing that I would do is I would start in jury selection, and I would make sure that the jurors that are going to be hearing your case are open to allowing for compensation on injuries that someone already had. And, you know, it's an easy thing to do. You could kind of ask, well, do you know anybody, who is a perfect specimen, anyone who has no injury, no condition whatsoever? And most people are going to say no, right? Because most people have, you know, they come into the case with who they are, with their life history. And most people have some kind of pre-existing condition, whether it's just like a backache, whether they went to a chiropractor for an adjustment. Some people may have had a prior accident and have an actual MRI, an actual finding of a back injury, or it could be something else like you had a prior shoulder surgery. So maybe your shoulder is more susceptible to injury than somebody who didn't have a prior shoulder surgery. So all of that comes into play. So I would start asking them about that in jury selection, whether they would be willing to follow the law and willing to allow for an amount. Because the law basically says that you take the plaintiff as you find him or her, as he or she finds him. she was at the time of the crash or the fall or the incident, right? So what that basically means is you have to ask yourself the question, who can afford this injury more? Is it somebody who's in perfect shape, like somebody who's working out every day, doesn't have a problem in their entire body, is like super strong? Is that the person that can afford this injury? Or is it somebody who already has a vulnerability, already has this weakness, somebody who's more delicate and fragile, and who can be hurt by the crash? So of course, the answer would be the person that already has something, right? And then the other way you could phrase it is you could say, well, who has less to give, right? Because somebody who's, again, in perfect shape, never had any problems before, they have more to give. And somebody who is already injured has less to give, right? Because they're already injured. So some people talk about it in terms of like baselines, what's your baseline? So somebody who's really healthy might have a baseline of 100. Whereas somebody who's already had like a surgery or a neck injury might be starting at a baseline of like 60. So then they get into the same, let's say crash, the same type of injury, the person who was at 100 might go down to like a 60 now, but they're still okay. They could still live with it. Whereas the person who was at the 60 might go down to like a 20. So they're really injured now, they could barely function because they have nothing left to give. So that's the concept of like baselines, where you were before, coping, or your ability to deal with an injury, your ability to cope. And then also reserves, how much you have left, just like a bank has reserves, right? You want to make sure you have money in the bank, you want to make sure that you're healthy, you want to make sure that you're healthy, you want to make sure that you're healthy, you want to make sure that you're healthy, you want to make sure that you're healthy, health has a reserve. Once the reserves are depleted, there's nothing left. And then you could really be seriously and permanently injured. So those are the concepts that you have to play with. But basically, let's go to the pattern jury instructions in New York. It's 2 colon 282. And it basically calls for two different elements. Number one, before the injury, in this case, plaintiff had, and it has to be a specific condition, right? So you have to prove that during the trial, that before this car crash, before this incident, plaintiff had a specific medical condition. And that because of this incident, the condition was aggravated to cause increased suffering and disability. Now, if you prove all that, then the plaintiff recovers for the increased disability and the increased pain. So basically, you have to have had a condition before, and then that condition has to have been aggravated by this crash or incident to cause an increased suffering and disability. And then that's what you recover for, right? The increased suffering and disability. You don't recover for the underlying condition because you already had it before. So in that example, if you have a C4, C5 herniated disc, before you even got into this crash, you can't recover for that C4, C5 herniated disc because you already had it. But let's say in whatever it was, maybe the first accident was like a trip and fall, and you recovered some money, you had a C4, C5 herniated disc, you had some chiropractic treatment, maybe an epidural steroid injection, that's all you needed. Now, in this car crash or truck accident, you have that same C4, C5, but now you need a percutaneous discectomy. Now you need a fusion surgery. Now it's much more debilitating. Perhaps it's impinging on a nerve that travels to your hand, and then you have a partial paralysis. So you have a C4, C5 herniated disc, and now you have a C4, C5 herniated disc. So for all of that, you can recover, but you can't recover for the underlying C4, C5 herniated disc. And the pattern jury instruction says that explicitly. They say you cannot recover for any physical ailment or disability which existed before the accident, or for any injury not caused or contributed to by the accident. And then it says that you can only be compensated to the extent that the condition was made worse by the defendant's negligence. So to the extent that your C4, C5, let's say herniated disc was made worse by the actual crash, right? This crash, the one you're suing for. So that's very important. So you have to get your doctors on board, and they have to then give you a medical narrative and also testify and explain the medicine as to how it's the medical causation, right? This crash made it worse. So that's very, very important. And what I like to do is, you know, I think a lot of lawyers probably should do this, is write in either jury selection or opening statement to give yourself credibility. What you may want to say is, look, we're not looking to recover for any injury that was there before this accident, right? Because that's what the law says, you can't recover for it anyway, right? So be upfront about it. Say, we're not looking to recover for a C4 herniated disc. You say, look, we're not looking to recover for a C4 herniated disc, because the evidence will show that my client had that three years ago before this crash ever happened. But we are looking to recover for the difference. Whereas that C4 herniation was already asymptomatic, there was no pain, he or she was feeling better, right? Everything was on the road to a recovery. They weren't getting any medical treatment for all those years. And so, you know, all they needed was one epidural injection and some physical therapy, chiropractic, they were better. But now, because of this crash, they needed a fusion surgery, they needed, you know, they had this radiculopathy, they had all this cascade of symptoms. And you could almost show it to say, look, everybody has what's known as degenerative disc disease, or your spine degenerates, right? That just means the painless, normal aging process. So even if you didn't have an injury, everyone's spine is going to slowly degenerate as you get older. That's just the aging process. But you say, look, that is like, let's say a faucet dripping, drip, drip, drip slowly. And this, because of this crash, and all of these injuries, like needing a fusion surgery right away, or having this horrible radiculopathy with partial paralysis, this is not like a drip, this is more like a waterfall. So this is completely different. And this is caused by this. So you have to have your doctor on board to give you that. So that's basically the aggravation exacerbation charge. Now there's another charge. And the other charge is 2,283. And what that one basically says is that the increased susceptibility to injury is something you can charge the jury on as well. So it's a very quick charge. It basically just says the fact that a plaintiff may have a physical or mental condition that makes him or her more susceptible to injury than a normal, healthy person does not relieve the defendant of liability for all the injuries sustained as a result of the defendant's negligence. And the defendant is liable, even though those injuries are greater than those that would have been sustained by a normal, healthy person under the same circumstances. And a lot of people refer to that as the eggshell plaintiff rule. For example, if you have an egg, you know, and then you get into some kind of an accident, that egg is going to crack because that's an eggshell plaintiff. Let's say an octogenarian, someone who's 80 years old, and they get into a little bit of a crash, let's say. But because they're so vulnerable, they have cracks in their head, massive bleeding, subdural hematomas, they might need brain surgery. Now you take the same person who's 20 years old, like a strong person, they get hit by the car the same way. They may not even fall down. They will not have, cracks in their head, they will not need the surgery. So even though it's the same exact conduct, in scenario one, it could be a $10 million case, right, or maybe more. In scenario two, it may not be worth anything, or it may be a small case, like a $5,000 case. So they're just saying that you take the plaintiff as you find him or her, and this eggshell rule applies. And, you know, and it's, I think it's a good argument. Like one lawyer that I was reading some of his ideas, saying, look, if the defendants refuse to honor that, and the defendants say that, you know, it doesn't matter that this person has had it all before, you could give the analogy of, let's say, a farmer carrying eggs in a car, maybe going to the farmer's market, and then they get hit, and all the eggs get destroyed, right? Would it be fair to say, hey, you shouldn't have had eggs in that car, you should have had ping pong balls, because if you had ping pong balls, well, you wouldn't have gotten hurt, right? You can't say that. You can't say that. You can't say that. You can't say that. It's just not, not ethical, right? It's not, it's not right. You have to take the person as you find them. Just like if you get into a crash with an expensive car, like a Ferrari, well, then you have to pay the damage to the Ferrari. If you get into a crash with like a 1982 Datsun, then you pay $200. That's all it's worth, right? It's just, it is what it is kind of thing. So that's a good point. And that's the increased susceptibility to injury. So those are the two charges. So let us know what you think. I think that, you know, I think that argument as, you know, who has less to give. And basically, I think that's really what it comes down to who can afford this injury. And no one can really afford an injury, but definitely the healthy person, the person that's super strong can afford it more than someone who's already injured. So what you're really doing is you're really like reframing everything. So of course, if you have an injury that you've already recovered for in another lawsuit, or that is, you know, you've already recovered for in another lawsuit, you can recover for it. And if you have a condition that has nothing to do with this crash, this crash didn't make it worse, this crash didn't aggravate it, this crash had no effect and contribute to it, then you know, that's not a case. But if you had a condition before that was made worse by this particular crash, then you can recover to the extent that this crash made it worse. So you have to kind of get specific, you have to get all the medical records, but it could make it turn it into a really big, strong case. So those are good cases, we have had a lot of them. And if you have a lot of them, and you know, a lot of the times it happens because people do have something either a medical condition, you know, or a prior incident of some sort of prior fall prior car crash, you know, a lot of people get into more than one accident. So let us know what you think. Let us know what questions you have. Please like and subscribe to our channel. We are here for you. And have a great day, everyone. Okay, bye bye. Thank you for watching. Please like and subscribe to our channel. We are here for you.