Rockafellow Law Firm


Tucson Office


Pre-Existing Conditions

The phrase “pre-existing condition” has received significant attention in the past few years as the nation’s media, politicians, and citizens continue to debate the Affordable Care Act and it's impact on the American system of healthcare.

Most of us equate the phrase to the health insurance companies attempts to limit or deny coverage. However, in the liability insurance realm, a pre-existing condition carries a slightly different meaning.  The law dictates that a person who negligently causes an accident takes the victim as she lies. This means if my negligence causes your pre-existing condition to become symptomatic or worsen, I am liable for that worsened injury. Revised Arizona Jury Instructions, Civil, Personal Injury Damages 2 (2003). However, I am not responsible for any injury or condition you may have had prior to my negligence.

This is sometimes referred to as the eggshell plaintiff rule. Here’s an example:

Brad is talking on his cell phone while driving. He does not notice the red light and he rear-ends another car being driven by Ashley. Ashley had back surgery a few weeks prior and had just begun driving again. This crash causes her severe pain. Although damage to her car was minimal, Ashley’s pain is such that has to undergo emergency surgery to fix her prior operation.

Brad is not liable for Ashley’s initial back surgery. However, he is responsible under the law for her subsequent emergency surgery. This liability extends to the additional pain and suffering caused by the second surgery. Brad cannot hide behind the fact the Ashley was in a fragile condition and more prone to injury at the time of the collision.

Pre-existing conditions cases can be very difficult. The insurance company will try very hard to attribute all of Ashley’s injuries, pain, and suffering, to her pre-existing condition. Ashley’s lawyer must argue that Brad’s negligence caused her condition to worsen. As most of us have some type of pre-existing condition, insurance companies will often take advantage of the victim of a car accident when it comes time to settle, especially when that person is not represented by an attorney. For this reason it is important to call The Rockafellow Law Firm whenever you are involved in an accident that is not your fault. We have the knowledge and experience to make sure that everything about your medical condition is given complete consideration.

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