"Pre-existing Conditions" in Las Vegas, Nevada personal injury cases

Pre-existing conditions do not prevent Nevada accident victims from filing personal injury lawsuits and recovering money damages. And if an accident exacerbates (worsens) a plaintiff's pre-existing injury, the defendant may be liable for any expenses caused by this exacerbation, including:

Having a pre-existing injury or illness can make it more difficult to win Nevada negligence cases and other claims, and past conditions might reduce the amount of money the victim is entitled to. In any case, the best evidence to prove the existence and severity of a plaintiff's past and current injuries are medical records and testimony from medical experts.

In this article, our Las Vegas Nevada personal injury attorneys discuss the following pre-existing conditions legal topics:

Medical records are key evidence in Nevada personal injury cases.

1. Legal definition of pre-existing injuries and conditions in Nevada

Like it sounds, a pre-existing condition is an illness or injury a person already has prior to an accident. Some people are born with pre-existing conditions or get them through prior accidents. Older people are more likely to develop pre-existing conditions as part of the natural aging process.

Examples of pre-existing conditions include:

  • depression or anxiety
  • arthritis
  • myopia or hyperopia
  • loss of hearing
  • degenerative disc disease
  • hypertension
  • arthritis
  • COPD
  • sleep apnea
  • cancer
  • paraplegia or quadriplegia
  • hernias
  • heart murmurs
  • diabetes
  • asthma
  • migraines

In sum, pre-existing conditions can be physical or mental, temporary or chronic, minor or serious.

2. How prior conditions affect personal injury lawsuits in Nevada

Having a pre-existing condition should not negate a victim from winning personal injury lawsuits in the future. Whenever an accident causes the victim to sustain new injuries or an "exacerbation" of prior injuries, the victim stands to recover money damages from whoever caused the accident.

Example: Helen has a sprained ankle. While walking through the Mirage, she slips on a wet floor and breaks that same ankle. Even though Helen's ankle was already compromised prior to the fall, Mirage could still be liable for "exacerbating" her sprained ankle by breaking it.

Had Helen in the above example not broken her ankle by the fall, then Mirage would not have to pay for her sprained ankle: Since the sprained ankle occurred before the Nevada slip-and-fall accident, Mirage is not at fault for that. But since the Mirage's negligence caused the sprained ankle to worsen into a break, Mirage would be liable for aggravating her pre-existing injury.

Helen in the above example is what the law calls an "eggshell plaintiff" because she has a pre-existing injury (the sprained ankle). Under Nevada law, eggshell plaintiffs are no less eligible than healthy plaintiffs to recover money damages for an accident.1

Certainly, defendants in personal injury cases will always try to use the plaintiff's (victim's) pre-existing conditions against them to avoid paying any damages. In the above example, Mirage might try to argue that Helen already had a broken leg prior to the fall and lied about having only a sprain before. Since parties in a personal injury case often disagree about the nature and extent of the victim's injuries, the best proof the parties can rely on are medical records and medical expert testimony.2

It is important that plaintiffs in personal injury cases be honest about whether they have pre-existing conditions. If the defendants catch them in a lie, that could seriously jeopardize their credibility with the court and their ability to recover any money at all.2

doctor with x-ray
It is vital that personal injury plaintiffs are upfront about their past medical conditions. Trying to hide this evidence could give the defendants a huge advantage in court.

3. Pre-existing conditions in workers' compensation cases in Nevada

In standard Nevada personal injury cases, the burden is on the plaintiff (victim) to prove that the defendant's actions exacerbated his/her pre-existing injuries. But legal procedures are different when victims sustain injuries in the course of their employment.

When an injured employee with a pre-existing condition files for worker's comp in Nevada, the law initially presumes that the occupational injury exacerbated the employee's pre-existing condition. If the insurance company then wishes to fight the worker's claim, it needs to prove that the work accident is not "a substantial contributing cause of the resulting condition."3

Example: Henry is a factory worker with worsening hearing loss. One day there is an explosion at the factory, which creates a loud boom. Henry then files a workers' comp claim alleging that this loud boom caused his hearing loss to accelerate to near deafness.

If the factory's insurance company wishes to fight Henry's claim, it has the burden to prove that the loud boom was not a "substantial contributing cause" to Henry's near deafness.

In the above example, the workers' comp insurance company would undoubtedly comb through Henry's medical records in search of proof that Henry was already nearly deaf prior to the explosion. It would also probably hire a medical expert to testify that the loud boom would not have affected his hearing too much.

4. How pre-existing conditions affect money damages in Nevada

Depending on the case, accident victims with pre-existing injuries may recover less money than they would otherwise. When an accident causes a prior injury to get worse, the culprit is liable to compensate the victim only for the exacerbation of the injury, not the underlying injury itself.

Example: Alice is a paraplegic and relies on a home health nurse and a wheelchair. While shopping in a Wal-Mart, a heavy shelf item falls onto her and breaks her back. After a long recovery, Alice is in the same position as she was before the accident.

Alice sues Wal-Mart to pay for her medical bills, including her continuing need for a home health nurse and wheelchair. Since Alice needed a home health nurse and wheelchair prior to the accident, Wal-Mart may be able to get out of paying for them. Instead, Wal-Mart would probably just be liable for all the medical bills related to her hospital stay and rehabilitation. Walmart may also have to pay for pain and suffering any lost wages she incurred while she was out of work.

As discussed above, courts rely heavily on medical records and expert medical witnesses to parse out exactly how much of a plaintiff's injury the defendant is liable for.4

5. When a person with pre-existing injuries dies in an accident in Nevada

When a person dies in an accident, that person's family or estate can bring a Nevada wrongful death claim against the alleged culprits. If that victim had a pre-existing condition that made him or her particularly sick or fragile, the defendant might try to argue that the wrongful death claim is baseless because the victim would have died anyway.

This situation is common in Nevada medical malpractice cases. When determining liability, courts follow the "loss of chance doctrine": If the medical provider's negligence diminished the patient's chance of a better outcome, the provider may have to pay damages. These damages are reduced in proportion to the extent that the victim's pre-existing condition likely contributed to the death.5

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Legal References

  1. FGA, Inc. v. Giglio, 128 Nev. 271,  278 P.3d 490 (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.").

    NEV. J.I. 10.06 ("A person who has a condition or disability at the time of an injury is not entitled to recover damages there for.  However, he is entitled to recover damages for any aggravation of such preexisting condition or disability proximately resulting from the injury. This is true even if the person's condition or disability made him more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury.Where a preexisting condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional injury caused by the aggravation.")
  2. FGA, Inc. v. Giglio, 128 Nev. 271,  278 P.3d 490 (2012)("Moreover, unless it is readily apparent to a layperson, a defendant seeking to introduce evidence of a prior injury generally must produce expert testimony demonstrating the relationship between the prior injury and the injury complained of, and why it is relevant to a fact of consequence...The test for competency of medical expert testimony depends on the purpose for which the testimony is offered...If medical expert testimony is offered to establish causation, it "must be stated to a reasonable degree of medical probability." However, if expert testimony is offered to contradict the party opponent's expert testimony, the offered testimony must only be "competent and supported by relevant evidence or research." However, for defense expert testimony to constitute a contradiction of the party opponent's expert testimony, the defense expert must include the plaintiff's causation theory in his analysis. If the defense expert does not consider the plaintiffs theory of causation at all, then the defense expert must state any independent alternative causes to a reasonable degree of medical probability because he or she then bears the burden of establishing the causative fact for the trier of fact. Otherwise, the testimony would be "incompetent not only because it lacks the degree of probability necessary for admissibility but also because it does nothing to controvert the evidence of appellants.").
  3. NRS 616C.175  Employment-related aggravation of preexisting condition which is not employment related; aggravation of employment-related injury by incident which is not employment related.

          1.  The resulting condition of an employee who:

          (a) Has a preexisting condition from a cause or origin that did not arise out of or in the course of the employee's current or past employment; and

          (b) Subsequently sustains an injury by accident arising out of and in the course of his or her employment which aggravates, precipitates or accelerates the preexisting condition,

    --> shall be deemed to be an injury by accident that is compensable pursuant to the provisions of chapters 616A to 616D, inclusive, of NRS, unless the insurer can prove by a preponderance of the evidence that the subsequent injury is not a substantial contributing cause of the resulting condition.

          2.  The resulting condition of an employee who:

          (a) Sustains an injury by accident arising out of and in the course of his or her employment; and

          (b) Subsequently aggravates, precipitates or accelerates the injury in a manner that does not arise out of and in the course of his or her employment,

    --> shall be deemed to be an injury by accident that is compensable pursuant to the provisions of chapters 616A to 616D, inclusive, of NRS, unless the insurer can prove by a preponderance of the evidence that the injury described in paragraph (a) is not a substantial contributing cause of the resulting condition.

    Grover C. Dils Med. Ctr. v. Menditto, 121 Nev. 278, 112 P.3d 1093 (2005).("A new injury or an aggravation of the prior injury is the responsibility of the most recent employer. A mere recurrence remains the responsibility of the former employer...we recognize that an "aggravation" under the last injurious exposure rule is the result of a specific, intervening work-related trauma, amounting to an "injury" or "accident" under workers' compensation law, that independently  contributes to the subsequent disabling condition. Thus, to be considered an aggravation, the subsequent injury must amount to more than "merely the result of the natural progression of the preexisting disease or condition," which becomes increasingly painful with the performance of normal work duties. Instead, when symptoms of an original injury persist and when no specific incident can independently explain the worsened condition, the condition is a recurrence of the original injury...Nevertheless, when determining whether a claimant with an ongoing condition suffered an "aggravation" under the last injurious exposure rule, the fact-finder should be concerned with whether the subsequent incident caused the original condition to worsen physically, not merely whether it merely caused additional pain to manifest itself. And generally, "because an injury is a subjective condition, an expert opinion is required to establish a causal connection between the incident or injury and disability." "Evidence that an injury merely worsened is not sufficient to prove aggravation." ...We reiterate that, in ongoing symptoms cases, the mere increased severity or exacerbation of symptoms, without more, is not "sudden" or "unforeseen" and does not constitute "objective symptoms of an injury" under Nevada's workers' compensation law.").

    State Indus. Ins. Sys. v. Kelly, 99 Nev. 774, 671 P.2d 29 (1983)("'[P]reexisting illness normally will not bar a claim if the employment aggravates, accelerates or combines with the disease process to trigger disability or death." 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...The fact that industrial aggravation may have been but one of several causes producing the symptomatic condition is of no moment. 'An industrially related accident does not have to be the cause of the injury or death, but merely a cause. If the job is said to precipitate or accelerate the condition, a causal connection with the work can be found.' ...'[I]n the field of Workmen's Compensation, the employer takes his employee as he is. In legal contemplation, if an injury, operating on an existing bodily condition or predisposition, produces a further injurious result, that result is caused by the injury.'").

    Mikohn Gaming v. Espinosa, 137 P.3d 1150, 137 P.3d 1150 (2006)("In successive injury cases, the appeals officer must first make a determination as to whether the injury is a new injury, an aggravation of an old injury, or a mere recurrence of the old injury. "'[I]f the subsequent injury is merely a recurrence of the first, and does not contribute even slightly to the causation of the disabling condition, the [carrier] covering the risk at the time of the original injury remains liable for the subsequent injury.'" Otherwise, if the injury is a new injury or causes an aggravation of the old injury, the workers' compensation provider at the time of the new injury is liable.").

  4. See note 1.
  5. Perez v. Las Vegas Medical Ctr., 107 Nev. 1, | 805 P.2d 589 (1991)("loss of chance" doctrine...Under this doctrine, the injury to be redressed by the law is not defined as the death itself, but, rather, as the decreased chance of survival caused by the medical malpractice...Of course, the plaintiff or injured person cannot recover merely on the basis of a decreased chance of survival or of avoiding a debilitating illness or injury; the plaintiff must in fact suffer death or debilitating injury before there can be an award of damages. Additionally, the damages are to be discounted to the extent that a preexisting condition likely contributed to the death or serious debilitation. Specifically, "[t]he amount of damages recoverable is equal to the percent of chance [of survival] lost [due to negligence] multiplied by the total amount of damages which are ordinarily allowed in a wrongful death action.").

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