Author: Richard H. Adler

The Washington courts have not addressed when an apportionment must be made between a traumatic person injury and preexisting condition since 1969. That changed when the Washington Supreme Court decided the Harris v. Drake case in October 2004.

Bradley Harris was injured in a motor vehicle collision with Doris Drake. Mr. Harris suffered back and shoulder injuries that ultimately necessitated arthoscopic shoulder surgery. When attempts by Harris' attorney to settle the matter failed, a lawsuit was filed and Ms. Drake's insurance company hired an attorney for her. Ms. Drake's attorney claimed that Mr. Harris' shoulder injury was related to a "preexisting condition" not the accident because:

1. An MRI performed one month after the motor vehicle collision showed a normal shoulder;
2. Mr. Harris' shoulder problem appeared only after he was released by his doctor to resume his painting job; and
3. Mr. Harris' own surgeon testified that painter often have impingement syndrome problems caused by their profession.

Despite the insurance company attorney's argument, there was no evidence at trial that Mr. Harris had a shoulder problem prior to the motor vehicle collision. The jury found for Mr. Harris and Ms. Drake's attorney appealed the case.

Washington courts have held in the past, where there is no evidence a preexisting condition is causing pain or disability close to the time a traumatic injury is sustained, the at-fault party is liable for 100% of all subsequent treatment bills and damages when the incident "lights up" the dormant or asymptomatic preexisting condition. In other words, when an abnormal condition is present but inactive and not requiring active care, there is nothing that requires any apportionment of the injuries or treatment caused following the new trauma. The trauma is solely responsible from a medical legal perspective.

The Supreme Court in Harris vs. Drake reaffirmed this legal principle when ruling:

"Even allowing for the possibility of a preexisting condition, the defense failed to show that such condition was symptomatic prior to the accident. When an accident lights up and makes active a preexisting condition that was dormant and asymptomatic immediately prior to the accident, the preexisting condition is not a proximate cause of the resulting damages. Bennett v. Messick, 76 Wn.2d, 474, 478-79 (1969)"

The Bennett case affirmed in Harris v. Drake involved a person injured when a co-worker driving a forklift tractor ran into him while he was picking fruit. Mr. Bennett had suffered previous injuries, including an injury to the same ankle injured in the new incident. The evidence showed the prior injury had healed normally with no residual pain or disability in the ankle until the forklift tractor accident. Diagnostic testing after the incident revealed the presence of degenerative arthritis in the left ankle. Mr. Bennett's treating doctor testified the forklift tractor injury caused pain and limitation of motion within the ankle in part because it aggravated or lit up the dormant arthritic condition. He further testified without the forklift tractor injuries superimposed on the earlier injury, chances were better than 50% Mr. Bennett would never have had a medical problem with the ankle. The Supreme Court in Bennett determined this testimony did not provide a basis to apportion the injuries and damages between the arthritic condition and the incident stating:

The rule is that when a latter condition itself does not cause pain, suffering, or a disability, but that condition plus an injury brings on pain, suffering, or a disability by aggravating the preexisting 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. Bennett v. Messick.

The legal principles affirmed by the Washington Supreme Court in Harris v. Drake have direct implications for today's healthcare providers when taking history from the patient, documenting in the patient's chart notes, writing narrative reports for attorneys and insurers, and providing testimony at trial including:

1. If a patient has an asymptomatic preexisting condition and that condition is made symptomatic or lit up by the new trauma, under Washington law, the condition and related treatment needs are related 100% to the new trauma;
2. Just because a patient has degenerative changes noted on diagnostic imaging does not mean the preexisting condition is responsible for their post trauma symptoms and findings. It must be determined for medical legal, insurance reimbursement purposes, whether those degenerative conditions were symptomatic and requiring active treatment close in time to the new trauma. If the answer is no, none of the post trauma care and findings can be attributed to the degenerative changes instead of the traumatic incident;
3. Whenever a patient reports that they had a prior injury in an affected area, it is important for the provider to obtain a good history of the prior symptoms and treatment, functional abilities and limitations if any, leading up to the date of the present trauma; and
4. Care must be taken when discussing the history, causation of the current problems and making diagnosis keeping in mind the applicable medical-legal phasing in chart notes and in narrative reports. This can be critical in determining the patient's access to healthcare and establishing their legal rights with respect to the injury incident.