By Richard H. Adler, Attorney at Law
One phrase or buzzword often causing confusion for the health care provider in a legal context is “pre-existing condition.” Under the law, there are two types of pre-existing conditions. The first is known as an “inactive” or “dormant” pre-existing condition. The second is an “active” or “symptomatic” pre-existing condition.
A provider generally learns of a pre-existing condition when obtaining the patient’s history. The provider may also learn of a prior condition when reviewing x-rays which indicate degenerative or arthritic changes in the same area as the pain from recent trauma. When asked by insurance companies or attorneys whether the recent trauma is “causing” the pain or disability, or whether the “cause” arises from a pre-existing injury, the health care provider must understand that the answer to this question should not be considered from a “medical only” perspective, but from a “medical-legal” perspective.
A medical only perspective may lead a provider to conclude that the pre-existing condition, whether resolved or not, contributes to the cause, severity, or duration of the present symptoms. Accordingly, a provider responding from a medical only perspective might assert that some percentage of the present condition is a result of the pre-existing condition. However, the medical-legal perspective requires a different analysis and the provider’s answer will vary, depending on whether the pre-existing condition was inactive or active at the time of the recent trauma or the onset of the present condition.
Washington law states that if there is no evidence that a pre-existing condition is causing pain or disability before trauma is sustained, then the “lighting up” of that pre-existing condition makes the at-fault party liable for all damages proximately caused to the injured person. With inactive pre-existing conditions, there is no prior pain or disability to segregate from the injuries caused by the new trauma. From the medical-legal perspective, the “proximate cause” of the present symptoms is the recent trauma even though the symptoms may be worse or healing takes longer because of a pre-existing condition.
The Washington Supreme Court has considered pre-existing conditions on several occasions, including the case of Reeder v. Sears & Roebuck Co., 41 Wn.2 550 (1952). The plaintiff in Reeder sustained a low back injury when a walking ramp collapsed at a Sears & Roebuck Co. store.
The doctor diagnosed Mr. Reeder’s condition as a “muscular and ligamentous injury” to his low back, superimposed on certain degenerative changes in his spine. The court summarized the treating doctor’s testimony this way:
His fall…caused an arthritic condition in his spine to be lighted up and become active…It was the doctor’s opinion that Respondent would experience continued pain and trouble with his back as a result of his fall because it had lighted up the latent arthritic condition in his back.
Three months prior to this accident, the plaintiff had wrenched and injured his back while working at the Boeing plant. He lost no time from work. The plaintiff and his physician testified that at the time of the most recent fall, the plaintiff was fully recovered from the low back injury sustained at Boeing. The fact that Mr. Reeder was asymptomatic at the time of the fall was undisputed at trial. There was also medical testimony that the plaintiff might have continued indefinitely, without any active symptoms, unless and until something occurred to light it up.
The Sears & Roebuck Co.’s attorneys requested the trial judge instruct the jury that the plaintiff was not entitled to recover for any physical ailment or disability which may have existed prior to the fall, from which the plaintiff may now be suffering, which was not caused or contributed to by reason of the fall. The Washington Supreme Court decided that it was proper for the trial court to refuse to give the Sears & Roebuck Co. proposed jury instruction because the facts did not support it. Instead, the Supreme Court approved the instruction given to the jury stating:
The rule is, if by reason of delicate condition of health, the consequences of a negligent injury are more serious still, for those consequences the defendant is liable, although they are aggravated by imperfect bodily conditions.
The duty of caring and of abstaining from the unlawful injury of another applies to the sick, the weak, the infirm, as fully as to the strong and healthy; and when the duty is violated, the measure of damages is for the injury done, even though the injury might not have resulted but for the peculiar physical condition of the person injured, or may have been augmented thereby. The proximate cause of an injury is the efficient cause; the one that necessarily sets the other cause in motion.
Another case that illustrates the difference between the medical only perspective and the medical-legal perspective is Greenwood v. The Olympic Incorporated, a case decided by the Washington Supreme Court in 1957. In that case, Ruth Greenwood was injured in a fall while walking down stairs in a hotel.
After the jury reached a verdict against the plaintiff, a motion was filed requesting a new trial asserting the jury had been improperly instructed. The trial judge, after further study, agreed and granted a new trial. The defendant appealed. The Supreme Court ruled that the plaintiff was entitled to a new trial because the jury instruction had been improper. The Court stated:
Although there was evidence that, in consequence of the respondent’s fall, a dormant arthritic condition was activated, causing much pain and discomfort, there was no evidence that she was suffering any disability prior to her fall. Consequently, the statement in the (jury) instruction that the plaintiffs `are not entitled to recover for any physical ailment or disability which may have existed prior to the fall,’ while technically correct and proper in many cases, invited the jury to speculate about prior physical ailments or disability, concerning which there was no testimony.
In 1969, the Supreme Court again had the opportunity to review the legal standards regarding pre-existing conditions in the case of Bennett v. Messick, 76 Wn.2d 474 (1969). In that case, the plaintiff was employed as a fruit picker. Another employee was driving a forklift tractor and ran into the plaintiff. There were several injuries, including an injury to the same ankle the plaintiff had injured forty years earlier while playing basketball. The evidence showed that the prior injury had healed normally and that the plaintiff suffered no pain or disability in the ankle thereafter, until the tractor accident. Testimony indicated however, that a degenerative arthritic process was present in the left ankle, presumably caused by the basketball injury forty years earlier. The treating doctor testified that the second injury from the forklift tractor caused pain and limitation of motion within the ankle because it aggravated the dormant arthritic condition. He further testified that without the tractor injury superimposed on the earlier injury, the chances were better than 50/50 that the plaintiff would have never had a medical problem with the ankle. The Court reaffirmed the applicable rule:
The rule is that when a latent condition itself does not cause pain, suffering, or a disability, but that condition plus an injury brings on pain or disability by aggravating the pre-existing condition and making it active, then the injury, and not the dormant condition, is the proximate cause of the pain and disability. Thus, the party at fault is held for the entire damages as a result of the accident.
In 1982, the Court of Appeals, in the case of Sutton v. Shufelberger, 31 Wn. App. 579 (1982), reviewed the case of a Seattle police officer who, while on duty, had stopped his motorcycle, dismounted, and was hit by a truck. The emergency room doctor testified that the officer reported he had “chronic low back pain.” The plaintiff indicated he did hurt his back in 1971, but that it was not symptomatic. The emergency room doctor had no information as to whether the low back condition was symptomatic or not when he treated the officer. The Court of Appeals ruled that it was not proper to give an instruction on an “active” and “symptomatic” pre-existing condition unless there was evidence of “actual pain or disability” at the time of the new accident. In this case, there was no evidence to support such an instruction.
There are many practice tips for the health care provider to be gleaned from an understanding of the medical-legal issues that relate to causation of pain or disability:
It is not enough for the health care provider to simply read and interpret x-rays as indicating that a degenerative process was present.
A non-symptomatic pre-existing condition is not the “proximate cause” of post-trauma symptoms.
There must be an additional inquiry by the health care provider into the degree of symptomatology, if any, just prior to the present trauma.
It is important for the health care provider to inquire as to when a prior injury occurred, whether the patient had residual pain or disability from that prior injury, and whether there had been any resulting restriction of activities or work.
Precise phrasing of answers given in deposition or trial as to causation and “proximate cause” is critical to the patient’s legal rights.
I hope that this information provides you with some useful insights into how the legal process considers certain medical issues that are often perplexing and difficult for the treating or examining physician.
If we can be of assistance to you, your staff, or patients concerning personal injury issues, please do not hesitate to contact my office.
Very truly yours,
ADLER GIERSCH, P.S.
Richard H. Adler
Attorney at Law