Dirk Derrick (00:00):
Welcome to The Legal Truth, the podcast created to provide you general legal information about South Carolina law, lawyers, and the legal process. And hopefully, prevent you from being surprised by the unexpected. We will answer many of the questions I've been asked during the past 35 years about South Carolina personal injury claims and workers' compensation claims. We will also discuss existing laws and proposed changes in the law and how they affect you. My name is Dirk Derrick. I'm the founder of the Derrick Law Firm, and I'm your host.
Voiceover (00:35):
Please see required ethics disclaimers in show notes.
Pearl Carey (00:42):
Hi everyone and welcome back to the Legal Truth Podcast. I'm Pearl Carey, and I'm here with my co-host, Dirk Derrick, and today we're discussing the truth about pre-existing conditions and personal injury claims. Thank you so much for being here, Dirk. And my first question for you is, how do pre-existing conditions impact a personal injury claim?
Dirk Derrick (00:59):
Well, first of all, we're all walking around pre-existing conditions if we've got any age on us at all. We get born, we start walking and then start wearing down. So everybody's got some level of pre-existing condition. There's a special rule in South Carolina called the eggshell plaintiff rule is what we call it. Basically, the defendant, the person who causes injury to somebody or causes an incident, takes the plaintiff as they find them. They cannot argue. We shouldn't have to pay damages because this plaintiff had weak bones and therefore the bones broke when they fell, whereas a young athlete would not have sustained these injuries. So they take the plaintiff as they find them. They're responsible for any new injuries, but they're also responsible for any aggravation or exacerbation or new symptoms from the old underlying conditions.
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The most common thing we see is in our spine. When we walk and we're wearing down our spine, and you can have bulging discs that you don't know you have because you've never got any treatment for it. You may have degeneration in your discs, degeneration in your legs and your knees, you're not getting treatment for, and then an incident happens, an injury happens, and that condition is now flared up because of an injury, and now you need treatment. The defendant is responsible for any of those new symptoms and aggravations, but they don't have to pay you for having an underlying degenerative disc disease.
Pearl Carey (02:34):
So what counts as aggravation versus a brand new injury?
Dirk Derrick (02:37):
Well, a brand new injury is you have a clean body part, you have a clean shoulder, you don't have any tears in your shoulder, you don't have any bursitis in your shoulders. You have no pre-existing condition at all, any shoulder. If somebody would've taken an MRI of your shoulder before this wreck happened, the doctor said, "Clean, 100% normal. You hurt your shoulder. That's a new injury."
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If you've got a partially torn rotator cuff from a sports injury, you're living with it, you get by with it. You don't lift things real heavy overhead because it bothers you, but you get by. And if somebody takes the MRI, they can see a partial tear rotator cuff, and then you get an accident. Now, you've got a full thickness tear rotator cuff and some other injuries. That's an aggravation. It made your rotator cuff tear worse. So that's an aggravation versus a new injury.
Pearl Carey (03:26):
So how should plaintiffs document their pre-existing condition?
Dirk Derrick (03:31):
Most of the pre-existing condition will be documented in their medical record. One of the first things that an insurance company does when you file a claim for personal injury is they try to get you to sign a medical authorization. If you have not talked to a lawyer yet, be careful signing medical authorizations. They're usually wide open and then go back your entire life, all your medical records. We don't allow them to get medical authorization on our clients. We gather the medical records and we send it to the insurance company, but your pre-existing conditions are often evidenced by what is put in your prior medical records, and that's part of building up a case.
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You're not going to hide it from insurance companies. Most of the time, they have databases. They can look and see if you had a previous injury and got a previous claim. When we investigate our own client's case, we're looking at prior medical records, because we need to know how to address an injury at a certain body part. It usually comes. The pre-existing conditions usually show themselves in prior medical records, prior insurance claims for bodily injury are the two main sources.
Pearl Carey (04:37):
What if the defense says it's just degeneration?
Dirk Derrick (04:40):
They always say that. If you have a pre-existing condition, they're going to argue that it's just degeneration. It's going to happen sooner or later. And the defendant is not responsible for anything that's caused by just degeneration, but they are responsible for increased pain, new symptoms and problems on top of the pre-existing condition. That's not just degeneration, that’s going to take experts, that's going to take doctors looking at imaging, looking at medical journals, looking at studies on the speed of degeneration if this thing wouldn't have happened.
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It's gonna take an expert to testify, what’s degeneration versus what is an aggravation or exacerbation of the injury or the pre-existing condition. It gets mushy. A lot of gray area. You've got to be able to separate. You've got to be able to say, "Hey, here's where they were. Here's the baseline they were at with this condition." You can get some good information from medical journals and studies as far as what’s the average degeneration rate for a particular injury. And then you have this incident and it changes. You've got to be able to prove what that change is, how it's made worse.
Pearl Carey (05:57):
So that would be when you bring in those medical experts?
Dirk Derrick (06:00):
Unless it's a clear, clear case of aggravation. If it's a case where it's not as clear, it's just the symptoms got worse, you need expert testimony.
Pearl Carey (06:14):
Got it. And so how does comparative fault still apply when there's a case of aggravation?
Dirk Derrick (06:20):
It still applies. Comparative negligence deals with determination on who contributed by their own negligence in causing an incident. Having a pre-existing condition is not negligent. I mean, that's just what you have, so it has nothing to do with the determination on who caused it if the plaintiff was comparative negligent or not.
(06:43):
It comes down to the pre-existing condition, the degeneration issue. And that argument is all about actual damages and how much actual damages the defendant should pay. The aggravation of a pre-existing condition in degeneration argument comes down to the value of actual damages. It is what the jury is looking at to determine an actual damage award. What is the value of the harms and losses caused by this incident? That's where they look at degeneration. Once they have that total number, comparative negligence determines how much of that number the defendant is responsible for.
Pearl Carey (07:27):
Okay, that makes sense. So how do private health insurance liens work when there's an aggravated condition?
Dirk Derrick (07:34):
In South Carolina health insurance, they have a right of subrogation if they exercise that right. And what that means is they're entitled, they pay for health services that were caused by someone else's negligence. They have a right under South Canada law to subrogate or get paid back all or a portion of what they've paid to pay the bills that you have now recovered money for from a liable third-party. They advance it, you then collect money from at-fault party. They want some of their money back for anything that was caused by this incident.
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If they are entitled to be subrogated or reimbursed for anything they paid for a new injury and for an aggravation, if that aggravation caused additional treatment, they do not have the right to collect any money from your recovery for treatment that would've happened even if this incident did not happen.
Pearl Carey (08:34):
So only for the incident that was caused by somebody else's then?
Dirk Derrick (08:38):
It’s got to be a new injury, an aggravation and not for anything that's caused by the underlying condition. If you go back and you look, and the way we look at these things, we look at the baseline. You can go back and look at somebody's baseline before the incident occurs. If somebody has a condition and here goes what they're getting their medical treatment, here goes the pain level, here goes their treatments leading up to the incident, you can see what their baseline was. You can see how bad are they hurting? How's it being treated? How often are they getting treated?
(09:06):
Then the incident happens. Well, this baseline that would've continued is pre-existing stuff. Anything that's added on that is their aggravation or the new injury. And health insurance, Medicare, they all would have a subrogation right to be paid back for any money you got for that aggravation.
Pearl Carey (09:26):
Okay, got it. So what should plaintiffs disclose about their medical history with insurance companies and with their attorneys?
Dirk Derrick (09:33):
Be honest, be honest, be honest. Nothing hurts a case worse than somebody not being honest. If the defense can show that someone is not honest about one thing, they can sell that to at least some of the members of the jury. If they can't, if they weren't honest about this, they're not honest about anything. So being honest, got to do it. You can kill your case. That's the first thing.
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Second thing is, if you're honest about it and let your attorneys know, we can look at stuff, we can study, we can evaluate, we can get experts involved and deal with most of the stuff, because you are entitled to recover if anything, any kind of aggravation or exacerbation, any kind of new symptoms. So I think sometimes people are worried that if they say, "Yeah, I had this, got in a wreck six years ago and I got treated from my back," that's going to reduce their ability to recover for this. And that's not necessarily so. If it's been six years and you treat it for two months and you've been well and going back to work and-
Pearl Carey (10:36):
This knocked you back.
Dirk Derrick (10:37):
... and this knocked you back, it has nothing to offset what you should be able to recover. Now, if you look at the records and you’re complaining 9 out of 10 out pain in your back a week before this thing happens and they've scheduled you to have an MRI and then you get in a wreck, so you’ve got back injury, that gets much messy, because you're already going in for treatment. So to separate what you already had causing 9 out of 10 pain, what you have now that's causing 9 out of 10 pain, gets difficult. Now, you can do it with some symptoms. Your symptoms may be different. That gets messy and gets hard to separate something that close to the date of the incident.
Pearl Carey (11:19):
Okay. So what would be your top practical tips for pre-existing condition cases?
Dirk Derrick (11:25):
Be honest. We'll pull all the priors to see what you had before. Another thing is lay witnesses. Lay witnesses are important. Your coworkers, your family, your supervisor, because some people can say, "Well, we don't know if Jane Doe had this pre-existing condition." You show them the medical records and there's nothing in it and they say, "Well, that doesn't mean anything. I don't always go to the doctor if I'm having a problem." In a lot of cases, in most cases, it helps to have these lay witnesses. We call them before and after witnesses. But somebody who knew you before the incident who's able to say, "Pearl came to work every day with a smile on her face. She was happy to be there working. She never complained about her back hurting. I saw her lifting a case of coffee mugs to give to focus group participants. So I saw her doing things that she wouldn't have been able to do if she'd had this condition.” And then after the thing, now she just sits around the office and cries and she won't pick up anything. She won't do any work and somebody like that. I'm joking about it.
Pearl Carey (12:23):
Yeah.
Dirk Derrick (12:23):
But somebody who can say before and after and explain
Pearl Carey (12:28):
That there was a clear difference in behavior.
Dirk Derrick (12:29):
There's a clear difference. Really, really helpful for cases. So being honest, we'll get you medical records and then lay witnesses.
Pearl Carey (12:38):
Thank you so much, Dirk, for joining me today on The Truth About Pre-Existing Conditions in Personal Injury Cases, and thank you so much to all of our listeners. For more information, visit Derricklawfirm.com, and we can't wait to see you in the next one.
Voiceover (12:55):
Thank you for joining us on the Legal Truth Podcast. If you have questions that you would like answered on a future episode, please send them to TheLegalTruth@Derricklawfirm.com. If you would like to speak to us directly, call us at 843-248-7486. If you find the podcast valuable, please leave us a five star review and share The Legal Truth with your neighbor, friend, or family member who is seeking reliable information about a South Carolina personal injury or workers' compensation claim. Dirk J. Derrick of the Derrick Law Firm Injury Lawyers is responsible for the production of this podcast located at 901 North Main Street, Conway, South Carolina.
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Derrick Law Firm Injury Lawyers has included the information on this podcast as a service to the general public. Use of this podcast in any related materials does not, in any manner, constitute an attorney-client relationship between Derrick Law Firm Injury Lawyers and the user.
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While the information on this podcast is about legal issues, it is not intended as legal advice and should not be used as a substitute for competent legal advice from a licensed professional attorney in your particular state. Anyone seeking specific legal advice or assistance should retain an attorney. Any prior results mentioned do not guarantee a similar outcome. The content reflects the personal views and opinions of the participants in the podcast and are not intended as endorsements of any views or products.
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This podcast could contain inaccuracies. The information contained in this podcast does not constitute legal advice and is not guaranteed to be correct, complete, or up to date as laws continue to change. In this podcast, you will hear information about focus groups. Please note that not all of the firm's cases are presented to a focus group. Additionally, when speaking about juries or jurors in relation to a focus group, we are speaking of focus group participants and not actual trial juries or jurors.
