Lawyers’ Corner: Pre-Existing Conditions in Rudder v Easter

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Auto accident attorneys don’t always get to choose clients who were in perfect health before the car crash. But pre-existing conditions don’t automatically lead to dismissal. A recent unpublished Michigan Court of Appeals case explains when and how a pre-existing condition can still result in Third Party damages.

You don’t need to be the picture of physical health to be in an auto accident. Drivers, passengers, and pedestrians may all have pre-existing conditions that affect their auto accident cases – both no-fault claims against the insurance company, and Third Party claims. But just because an injury existed before, doesn’t mean your client can’t be compensated.

When Accident Victims Have Pre-existing Conditions

Tracey Rudder had back problems. She had been seeing a spine specialist for at least three months before her auto accident on November 8, 2011.  On August 9, 2011, she reported to her specialist that she had severe lower back and cervical neck pain, rating a 10/10 on a pain scale, because of an accident at home. Her specialist diagnosed Tracey with lumbar degenerative disc disease, lumbar spondylosis, cervical degenerative disc disease, and cervical spondylosis. As recently as five days before the accident, her doctor ordered a CT scan and prescribed spinal injections and physical therapy.

Then on November 8, 2011, Rudder was rear-ended while she was stopped at a red light in Burton, Michigan by Jackie Easter. Three days later, the CT and related X-rays showed no acute fractures or dislocations.

Eventually, Rudder’s attorney referred her to the Michigan Head & Spine Institute for continued treatment of her severe neck and lower back pain. Doctors there indicated that the problem started on 11/8/11 as the result of the auto accident. Medical records indicated that the symptoms worsened and that her neck and back pain began radiating into her arms and legs “[r]esulting from the accident.”

Rudder later sued Easter on a Third Party negligence claim. Her threshold injury was the harm done to her back. As was to be expected, the two independent medical examiners who reviewed Rudder’s case in defense of the lawsuit found that all of her symptoms related to the slow, progressive nature of her degenerative disc disease. It was not, in their minds, related to the accident at all. The trial court agreed, and dismissed Rudder’s case.

Pre-Existing Injuries and Third Party Negligence

The question before the Michigan Court of Appeals was whether a genuine issue of material fact existed as to the cause of Rudder’s injuries. Her attorneys argued that, since the doctors that examined Rudder came to different conclusions, a question existed as to whether she “suffered from an objectively manifested impairment because of the accident.”

In order to file a third party negligence suit, the Michigan No-Fault Insurance Act, MCL 500.3135 requires a plaintiff to demonstrate she has suffered a threshold injury of “death, serious impairment of a bodily function, or permanent serious disfigurement.” Serious impairment means “an objectively manifested impairment of an important bodily function that affects the person’s general ability to lead his or her normal life.”

The court acknowledged that “the aggravation or triggering of a preexisting condition can constitute a compensable injury.” Specifically, the court found:

“A degenerative condition can be exacerbated by subsequent injury such that it constitutes an impairment of a body function.”

To be grounds for a Third Party lawsuit, though, that aggravation must be because of the accident.

Physicians’ Assessments and Missing Information

The problem the court saw with Rudder’s claim was that her expert witnesses didn’t have all the information. Rudder had a neurosurgeon and a pain management specialist who provided reports in support of her claim. However, these doctors appeared not to have reviewed her medical records from prior to the crash. Her neurosurgeon’s letter said:

“I do not believe that [plaintiff’s] problem is a degenerative problem in the strict sense, since she was completely asymptomatic prior to the motor vehicle accident and her symptoms have all occurred as a direct result of the motor vehicle
accident on November 8, 2011.”

Her pain specialist said that her preexisting condition in her back had returned to their “previous baseline” before the accident. The court did not find these assessments credible. It ruled:

“We conclude that, even viewing the evidence in the light most favorable to the nonmoving party, BC Tile & Marble Co, 288 Mich App at 582-583, plaintiff has not established a link between the accident and her post-accident condition, either as an injury caused by the accident or a preexisting condition that was exacerbated by the accident.”

Representing Pre-existing Injury Clients After Rudder

The problem in Rudder was that the plaintiff’s attorneys was not able to demonstrate how the accident aggravated their client’s pre-existing injuries. It was not the existence of the pre-existing back pain that defeated her claims, but her doctors’ apparent ignorance of the prior treatment.

Auto accident attorneys often end up heading up the team assisting car crash victims. They may refer their clients to doctors and specialists to get them the relief they need, and assist with filing medical provider claims to ensure prompt recovery of benefits.

But Rudder shows that those doctors must not rely on the attorney’s referral to explain the injury. A thorough review of Rudder’s medical records would have revealed the pre-existing condition and allowed the treating physicians to give an informed opinion on whether and how the auto accident aggravated the existing injury.

When representing injured motorists, it is important for auto accident attorneys to review doctors’ reports carefully, and to ensure expert witnesses have all the necessary information, even the parts that make a case more difficult. Without all the details, a carefully chosen expert’s testimony could become completely useless, and a valid claim could be dismissed.

David Christensen is an auto accident attorney at Christensen Law in Southfield, Michigan. He has handled cases with pre-existing conditions for over 25 years. If your client has a difficult auto accident issue, contact Christensen Law today for a referral.