Regarding Pre-existing Conditions
In a recent slip and fall case a Massachusetts plaintiff failed to prove an “obvious causal relationship” exception to excuse her from having to introduce expert medical testimony rebutting a defense expert’s opinion that her torn rotator cuff was due to a fall that occurred eight months prior to her slip and fall at the defendant’s store.
The plaintiff was diagnosed with a torn rotator cuff 10 weeks after hitting a wall with her right shoulder as she slipped on a wet floor in a store bathroom. In moving for summary judgement on the plaintiff’s negligence claim, the defendant introduced the testimony of a medical expert who opined that atrophy in the patient’s shoulder indicated that the injury occurred when she fell down the stairs eight months before her fall at the store.
“The plaintiff argued that she was not required to rebut the defense expert with her own expert, citing common law rule providing an exception when there exists an “obvious causal relationship” between the alleged injury and the alleged negligent act. “
The judge in the case wrote, “given the evidence, a jury could not conclude, without speculating, that the plaintiff’s rotator cuff tear was caused by the store’s alleged negligence.”
The general rule in Massachusetts in medical causation is an issue that is “beyond the common knowledge or understanding of the lay juror” and generally requires expert testimony.
The plaintiff recounted in her testimony that she hit the wall with her right shoulder as she was falling. She was transported by ambulance after she reported to store employees that she was experiencing “severe right shoulder pain.”
The seven-page decision is Loridas v. Costco Wholesale Corp.
Why Medical Records are Essential
A Legal Nurse Consultant Knows and Understands the Importance of Medical Records Regarding Pre-existing Conditions:
- The key challenge is causation.
- Liability in slip and falls is based upon negligence.
- Damages can be complicated comparing what amounts to TWO separate injuries where a pre-existing injury is involved.
- When the accident exacerbates a pre-existing condition, it can be difficult to establish this causal link.
- Need to generate proof in the medical records history for the previous and current treatment.
- Need to prove the current state of health after the pre-existing injury.
- Need to prove a state of health immediately before the slip and fall.
- Demonstrate evidence as to how a medical condition has worsened after the accident
- Demonstrate how a previous injury was made worse by the fall.
- An incident report for the slip and fall should be filed immediately.
- Medical documentation should be established immediately with a physician.
- A medical evaluation is essential to help tell the difference between new injuries and old ones that have been aggravated.
- Revisit a discussion about importance of disclosure of any pre-existing conditions to attorney
- Consider the “Eggshell Plaintiff” concept if applicable.
- An absence from work after injury may have occurred with lost wages-needs to be established.
- Pre-existing condition may have caused a documented prone to injury from negligence leading to a slip and fall.
- Claims review may show incurred higher medical bills generated due to special treatment required for the aggravated condition.
- It may be a longer period before you are able to heal from an exacerbation/aggravation of a pre-existing condition.
A Legal Nurse Consultant will anticipate the opposing counsel strategy that insurance companies and at-fault parties will often attempt to argue that the pre-existing injury happened prior to the slip and fall, so they shouldn’t be held responsible. A medical expert witness for the plaintiff is crucial to rebut the defense medical expert because there will be one.
Pre-existing conditions offer a few advantages when handling a personal injury claim, the most notable of which is that it provides a scrutinous look at what was going on with the person at the time of the accident. Prior injuries offer a concrete way for judges, juries, and lawyers to see how someone has suffered because of a subsequent event. Medical records can serve to document a disability if injuries have caused a permanent disability.