Will a pre-existing condition hinder a personal injury lawsuit in Nevada?

Posted by Neil Shouse | Sep 21, 2018 | 0 Comments

Not necessarily. Defendants in Nevada personal injury lawsuits will always try to use plaintiffs' preexisting conditions in Nevada as an excuse against liability and large money damages. But judges understand that many people have preexisting conditions and that they should not bar recovery for accidents that may have worsened them.

Examples of preexisting conditions

Like it sounds, a preexisting condition is an illness or injury that a person has prior to an accident. Common preexisting conditions that many adults have include:

  • degenerative disc disease
  • nearsightedness or farsightedness
  • arthritis
  • high blood pressure
  • heart murmurs
  • diabetes
  • asthma
  • migraines
  • depression

The best evidence of preexisting records are medical records. Note that plaintiffs are usually advised to be forthcoming with their medical records that reveal all relevant preexisting conditions:

If a plaintiff hides their medical history only to have the defendant uncover it through an investigation, the defendant can use the plaintiff's secrecy to discredit his/her claim. Judges may even sanction plaintiffs with large fines for being dishonest about preexisting conditions.

"Eggshell plaintiffs" in Nevada personal injury cases

Accident victims who have preexisting conditions are often referred to as "eggshell plaintiffs" because they are more fragile than people without prior illnesses or injuries. But being an eggshell plaintiff does not automatically bar them from recovering money damages for an accident.

In fact, Nevada law requires that defendants take plaintiffs as they are. In short, defendants are liable to plaintiffs with or without preexisting conditions.

Example: An elderly man with osteoporosis is walking through the Bellagio. He slips on spilled water in the lobby. The elderly man breaks his hip. The elderly man sues the Bellagio for negligence under Nevada premises liability laws. The Bellagio admits fault at not cleaning up the spill, but it argues that it should not have to pay the man's extravagant medical bills because his preexisting condition caused him to suffer worse injuries than he would have otherwise. Under Nevada law, however, eggshell plaintiffs like the elderly man are just as entitled to money damages as plaintiffs who are in perfect health.

Typical evidence that plaintiffs attorneys use to show that an accident aggravated a preexisting condition include radiology scans and expert medical testimony.

Damages for preexisting conditions aggravated by an accident

Accident victims with preexisting conditions are just as entitled to compensatory damages as are accident victims without preexisting conditions. However, the damages are limited only to whatever additional injuries the accident caused.

Example: Jill's right leg is healing from a fracture. Jill falls down a defective escalator in the Fashion Show Mall, and the leg fractures in the same place again. The Fashion Show Mall admits it violated Nevada negligence laws by not fixing the escalator. The mall may be liable for any medical bills for treating the repeat fracture. But the mall should not be liable for any medical bills for the fracture prior to the fall or for any future medical bills Jill would have been responsible for had the accident never happened.

Depending on the case, defendants may also be liable for not just medical bills but also lost wages, loss of future earnings, and pain and suffering. And if the defendant acted especially egregiously, the court may impose punitive damages as well.

Legal References:

  1. State Indus. Ins. Sys. v. Kelly, 99 Nev. 774, 671 P.2d 29 (1983)("We have, however, recognized the principle that "preexisting illness normally will not bar a claim if the employment aggravates, accelerates or combines with the disease process to trigger disability or death." Spencer v. Harrah's, Inc., 98 Nev. 99, 101, 641 P.2d 481, 482 (1982). We consequently adopt the rule of law enunciated by our sister state Arizona regarding this issue. The claimant has the burden of showing that the claimed disability or condition was in fact caused or triggered or contributed to by the industrial injury and not merely the result of the natural progression of the preexisting disease or condition.")
  2. Perez v. Las Vegas Medical Ctr., 107 Nev. 1, 805 P.2d 589 (1991)("Additionally, the damages are to be discounted to the extent that a preexisting condition likely contributed to the death or serious debilitation.");
  3. FGA, Inc. v. Giglio, 128 Nev. 271, 283-284 (2012)("A prior injury or preexisting condition may be relevant to the issues of causation and damages in a personal injury action...In order for evidence of a prior injury or preexisting condition to be admissible, a defendant must present by competent evidence a causal connection between the prior injury and the injury at issue.").

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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