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Negligent Security Seminar | March 2015

Florida personal injury lawyers



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    Do Pre-Existing Conditions Affect Personal Injury Claims?

    Are you worried that a pre-existing condition may negatively impact your claim or lawsuit?

    Accident victims sometimes must overcome more significant challenges in the claims process due to pre-existing conditions. The truth is that liable parties will sometimes try to make it seem like any injuries caused by the accident are, instead, related to your prior documented injury or disability.

    If you suffer a truck accident, car crash, or a slip and fall injury, it’s not your pre-existing condition to blame. However, the people responsible for the accident typically do whatever they can to avoid blame to limit financial and legal exposure.

    Bringing up your past medical history may seem unfair, especially if you’re rear-ended or the victim in a negligent security case.

    Most personal injury claims involve some legal maneuvering and overcoming battles, which is why having an expert personal injury lawyer to represent you is vital to the outcome of your case.

    Many Americans Live with Pre-Existing Conditions

    Medical history is highly personal and private. As a result, it’s easy to feel like you’re the only one dealing with your particular disability or pain.

    In reality, a significant percentage of people in the country live with, treat, and manage pre-existing conditions. Often, these conditions stem from work strain, old sports injuries, aging, previous accidents, diseases, and other health factors.

    Knowing this, it’s normal for many accident claims or personal injury cases to involve some type of pre-existing health condition.

    Just because someone had back pain or a bad knee before an accident doesn’t mean they shouldn’t receive the same financial compensation or justice as other people. 

    If, for example, you’re injured in a cruise ship slip and fall, the fact that you had a bad shoulder shouldn’t detract from the liable party’s responsibility for payment for things like:

    • Medical Bills
    • Time Off Work
    • Physical Therapy
    • Pain & Suffering
    • Disability

    Working with an expert personal injury lawyer increases your chances of overcoming injuries, winning fair damages, and preventing those responsible from making erroneous claims related to your health before the accident.

    Personal Injury Case Laws Vary by State

    How much your or a loved one’s prior medical history plays into a personal injury claim varies by state.

    Differences in state laws make finding qualified attorneys to handle your case essential. They must know how relevant laws will affect your claim and any potential compensation related to injuries caused.

    At Leighton Law, for example, we have years of specialized experience representing victims across multiple state jurisdictions. As a result, we get ahead of any anticipated issues surrounding pre-existing conditions, thereby increasing your chances of a large settlement or judgment.

    Thankfully, Florida has laws to protect victims regardless of pre-existing conditions. Here, an aggravation of an established medical condition is eligible for compensation in negligence. There is actually an instruction for the jury about pre-existing conditions.

    So, for instance, if you have a bad knee and trip and fall in a hotel lobby that has unmarked wet areas, you’re likely eligible for damages.

    Pre-Existing Medical Conditions & Compulsory Medical Examinations

    In many cases the defense will request a medical examination. They get to choose the doctor who performs the medical examination you or a loved one must undergo. These are called compulsory medical examinations (CME).

    A lot of people get nervous about the medical examinations, worrying that the doctor will be unfair, etc., but they are a routine component of Florida’s Rules of Civil Procedure. Most states also have similar guidelines.

    The reasoning behind compulsory medical examinations is as follows:

    1. The defense has a right to verify the nature and extent of an injury when someone makes a claim against them.
    2. They have the right to attempt to prove whether there is a lack of an injury.

    Sometimes these medical examinations are called “independent,” but they are never independent and in Florida the courts do not refer to them as such.  Of course liable parties in a personal injury claim will find doctors with will either,

    • Claim there are no injuries
    • Say the injuries don’t meet the legal threshold
    • The victim is exaggerating the injuries
    • The injuries are related to pre-existing conditions

    Remember that in Florida, aggravated pre-existing conditions is compensable, but doctors will frequently say that there was no aggravation and that any pain is related solely to things that happened before.

    Skilled personal injury trial lawyers will present evidence to show that the injuries were not there or were not symptomatic, but they are dependent upon witnesses and medical documentation to prove this to a jury.

    Understanding Medical Exams

    We’re conditioned to trust doctors, insurance company representatives, and lawyers. Well, at least in part. This is because they hold positions of authority in society.

    After an accident, victims often mistakenly assume that any doctor they talk to will have their best interests in mind or that the person from the insurance company is just calling to see how they’re doing. 

    On the other hand, these people are hired by the defense (really the insurance company) and seek to limit financial exposure by getting you to say things like, “I’m fine,” “it hasn’t changed anything in my life” or anything else that hurts your case.

    The doctors performing the compulsory exam are often routinely hired by the defense and have long-standing relationships with the lawyers or law firms, and many of them obtain a substantial amount of their income from performing these exams (and testifying) for insurance companies. As a result, their motivations are clouded.

    What You Say & Do Will Impact Your Personal Injury Claim

    You should always be careful doing or saying anything related to your personal injury claim, especially if you’re dealing with doctors paid by insurance companies or defendants.

    It’s best to assume that a court-mandated medical examination is conducted by a doctor who the liable parties coach, or at least they are incentivized to make declarations that weaken your claim.

    Here are some things to keep in mind:

    The doctor may ask you about details of the accident in a conversational manner. You might think they are being friendly, but they are likely taking notes and adding them to the insurance company’s files.

    • The exam and any doctor or insurance company discussions may be recorded or videotaped. Be sure you know the details before you agree to any meeting or conversation.
    • They may make statements about your pre-existing condition and whether it’s responsible for your pain or current injuries rather than the accident. Stay away from agreeing to anything the doctor says. Be friendly and courteous, but decline to answer questions. Instead, ask them to speak to your attorney.
    • Tell your personal injury lawyer what happened after the appointment to avoid any surprises in court or during settlement negotiations.
    • Beware that everything you do and say may be noted by the defense doctor.  That includes even walking up to the office.  There was a  notorious defense doctor who used to claim that after the exam he watched injured victims after they left through his office window and that they would be walking like they had no pain or discomfort when they thought they were not being seen.

    Aggravation of a Pre-Existing Condition

    How do you prove that an aggravation of your pre-existing condition caused your injuries and not the pre-existing condition itself?

    Of course, most people know immediately when they’re injured in a boating accident or parasailing injury in Miami. Proving that, however, requires working with an experienced personal injury lawyer.

    Here are some facts you’ll need to establish:

    • An increase in pain intensity, location or nature
    • Longer pain duration
    • Limited range of motion
    • Impact on your quality of life (inability to perform certain tasks or pain on trying to do so)

    Claiming your leg or back hurts more is insufficient; you must show that your situation is worse than an established baseline. Typically your existing medical team will know your baseline and thus can document something like an increase in pain intensity.

    In addition, your legal team will likely have medical professionals they can recommend who know the personal injury claim process and will make the necessary judgments on your behalf.

    Working with a Proven Personal Injury Claim Lawyer

    Leighton Law is a leading personal injury firm in Florida. We represent victims of everything from sexual assaults to car crashes to boating accidents. We’re an established leader with an extensive track record of working with people who have pre-existing conditions.

    Leighton Law – $850,000 Slip and Fall Settlement

    We represented a client recently in a case where pre-existing conditions played a role. The client, a nurse on vacation in Orlando, slipped and fell at a major resort hotel. She slipped on rainwater covering a painted walkway outside the resort.

    The floor was not non-skid, and there were no warning signs that the floor was wet after the rain. The design of the floor also created puddles of water, which made it even more dangerous. Painted floors are typically more slippery than non-skid floors. When our client walked over the walkway, she fell and fractured her patella, requiring surgery to repair it.

    Our client’s previous knee injuries and surgeries on the knee played a role in the case. While some people think having previous surgeries will hurt their case, it added to her position. Her knee now needed more complex surgery and rehabilitation because of the accident.

    Leighton Law secured an $850,000 settlement in her case. As a result, she received top-tier medical care and was eventually able to return to work and normal activity. 

    Winning Damages with Pre-Existing Conditions

    People on vacation or visiting someone else’s property have the right to safety and a reasonable expectation the property owners are taking precautions to prevent slip and fall injuries, security incidents, and other accidents.

    Poorly managed properties or negligence can cause accidents that devastate victims and their families. For example, imagine having to go through more knee surgeries after years of rehabilitation just because a resort failed in its duty to properly mark and manage wet areas outside.

    At Leighton Law, we can help you win compensation to pay for injuries related to accidents whether or not you have a pre-existing condition. Talk to our team today about your case and your next best steps.


    Article by:

    John Leighton

    A nationally-recognized trial lawyer who handles catastrophic injury and death cases. He manages Leighton Law, P.A. trial lawyers, with offices in Miami and Orlando, Florida. He is President of The National Crime Victim Bar Association, author of the 2-volume textbook,Litigating Premises Security Cases, and past Chairman of the Association of Trial Lawyers of America’s Motor Vehicle, Highway & Premises Liability Section. Having won some of the largest verdicts in Florida history, Mr. Leighton is listed inThe Best Lawyers in America (14 years), “Top Lawyers” in the South Florida Legal Guide (15 years), Top 100 Florida SuperLawyer™ and Florida SuperLawyers (14 years), “Orlando Legal Elite” by Orlando Style magazine, and FloridaTrend magazine “Florida Legal Elite


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