Embrace the pre-existing condition; when presented properly, it can enhance recovery
The accumulation and presentation of evidence to prove and argue general damages have never been more important and challenging for our cases in light of the continued development and growing body of law on the subject of what is admissible evidence for calculating past and future medical expenses. Gone are the days when a plaintiff could simply submit for admission into evidence the billing generated by a treating physician along with his or her blanket testimony that the charges for the delineated service were “reasonable.”
The decisions in Howell and Corenbaum limit a plaintiff’s recovery as damages for past medical expenses to not more than the reasonable value of the services provided, which is defined as the lesser of (1) the amount paid or incurred for past medical services and (2) the reasonable value of the services. An injured plaintiff can recover for past medical expenses in an amount no greater than the amount that the plaintiff’s medical providers, pursuant to prior agreement (i.e., private health insurance) accepted as full payment for the services. The Court reasoned that the most accurate measure of the value (reasonableness) of the services provided is the amount the medical provider actually accepted for its services.
Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, found that the full amount billed for a plaintiff’s medical care is not relevant to the determination of damages for past or future medical expenses, and therefore is inadmissible for those purposes, if the plaintiff’s medical providers had agreed to accept a lesser amount as full payment for the services provided. The issue was whether the full amount of the bill could be admitted into evidence notwithstanding the fact the medical provider agreed to accept a lesser amount than was billed. The court held that the full amount billed cannot support an expert opinion on the reasonable value of future medical expenses, and is inadmissible for the purpose of proving non-economic damages.
The same conclusion in a slightly different fact pattern related to hospital liens was reached in State Farm Mutual Automobile Ins. Co. v. Huff (2013) 216 Cal.App.4th 1463. In that case, the amount of the medical provider’s lien pursuant to the Hospital Lien Act (Civ. Code, § 3041.1 et seq.), could not exceed the “reasonable and necessary” charges for the services provided. Therefore, the unpaid hospital bill based on the provider’s standard medical charges is not, in and of itself evidence of the reasonable value of those services provided.
The most recent decision in the line of Howell and Corenbaum, considering the issue of the admissibility of evidence of past medical expenses, comes from the Second Appellate District Division 3 in Ochoa v. Dorado B240595, July 22, 2014. The decision extends the Howell line of reasoning holding that the billed amount of unpaid past medical expenses provided on a lien are not admissible to establish the reasonable value of those services.
The take-away from the current state of the Howell line of cases is that in almost all our cases, the special damages we will be allowed to present to the jury will be far less than the “billed amount.” This is especially true when our clients’ medical expenses were paid by Medicare and MediCal, which pay a small fraction of the billed amount. This state of the law also requires that in every case, we consider the retention of an expert to solely address the issue of the reasonable value of the services rendered in order to present admissible evidence of past and future medical special damages. Unfortunately, the treating physician may no longer qualify as an expert for this issue or his/her testimony may not withstand vigorous cross-examination.
This shrinking ability to present admissible evidence of special damages causes us to shift our focus to more fully develop the general damages suffered by our clients in order to maximize the value of plaintiffs’ claims for damages.
General damages – Defined
General damages for personal injuries, also called “non-economic” damages, allow the plaintiff to recover monetary damages for pain, suffering, fright, nervousness, fear, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror, or ordeal. This includes mental and physical pain and suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, the loss of lifestyle, mutilation, scarring, disfigurement, deterioration of plaintiff’s bodily state, and consciousness of approaching death. “Admittedly these terms refer to subjective states, representing a detriment which can be translated into monetary loss only with great difficulty. But the detriment, nevertheless, is a genuine one that requires compensation, and the issue generally must be resolved by the ‘impartial conscience and judgment of jurors who may be expected to act reasonably, intelligently, and in harmony with the evidence.’” Capelouto v. Kaiser Foundation Hospital (1972) 7 Cal.3d 889, 892-893.
The CACI jury instruction for use for non-economic damages in a personal injury action reads as follows:
CACI 3905, 3905A: Physical pain, mental suffering and emotional distress
The following are the specific items of non-economic damages claimed by [Plaintiff name].
Past and future physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, emotional distress [insert other damages].
No fixed standard exists for deciding the amount of these non-economic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.
To recover for future [insert item of pain and suffering] [name of plaintiff] must prove that [he/she] is reasonably certain to suffer that harm.
For future [insert item of pain and suffering], determine the amount of current dollars paid at the time of judgment that will compensate [name of plaintiff] for future [insert item of pain and suffering]. [This amount of non-economic damages should not be further reduced to present value because that reduction should only be performed with respect to economic damages].
This instruction provides both a definition of “general damages” and proves as a useful tool to use in closing to argue to the jury that they must award money for all the harm suffered by plaintiff for each of the listed items. The instruction has room for additional “other damages” and we should always consider how to best draft the instruction to allow the jury to consider as many factors as possible while they deliberate general damages.
Pre-existing condition and the unusually susceptible (eggshell) plaintiff
The well-established case law allows a plaintiff to recover damages for aggravation of pre-existing conditions, injury to an unusually susceptible plaintiff and where injuries or death occurs during the course of medical treatment, to treat injuries suffered as a result of the tortfeasor’s negligent conduct.
Aggravation of pre-existing condition or disability:
The right of a person suffering from a pre-existing condition, when he or she was injured by another person’s negligence, to recover for all damages proximately resulting from the negligent act includes the right to recover for aggravation of the pre-existing condition. The degree of aggravation of a pre-existing condition is a factual question for the jury in a negligence action. In order for a plaintiff to receive damages for aggravation of a pre-existing condition or ailment, the plaintiff has the burden of proving that the subsequent act aggravated the pre-existing condition. We must show that the negligent act and resulting injury had a worsening effect on the pre-existing condition, made the pre-existing condition symptomatic or more difficult to treat.
A tortfeasor may be held responsible where the effect of his negligence is to aggravate a pre-existing condition or disease. Hastie v. Handeland (1969) 274 Cal.App.2d 599. Plaintiff may recover to the full extent that his condition has worsened as a result of defendant’s tortuous act.
(Ng v. Hudson (1977) 75 Cal.App.3d 250.)
CACI Jury Instruction 3927 reads as follows:
CACI 3927 - Aggravation of Pre-existing condition or disability:
Plaintiff is not entitled to damages for any physical or emotional condition that he/she had before defendant’s conduct occurred. However, if Plaintiff had a physical or emotional condition that was made worse by defendant’s wrongful conduct, you must award damages that will reasonably and fairly compensate him/her for the effect on that condition.
Unusually susceptible plaintiff:
The tortfeasor takes the person he injures as he finds him. If, by reason of some pre-existing condition the victim is more susceptible to injury, the tortfeasor is not thereby exonerated from liability.
(Rideau v. Los Angeles Transit Lines (1954) 124 Cal.App.2d 466.)
That a plaintiff without such a pre-existing condition would probably have suffered less injury or no injury does not exonerate a defendant from liability.
(Ng v. Hudson 75 Cal.App.3d 25, overruled on another ground in Soule v. G.M. Corp. (1994) 8 Cal.4th 548.)
The plaintiff may recover from the original defendant tortfeasor where, as a result of a weakened condition after the injury, he or she becomes more susceptible to and suffers a subsequent disease or injury. (Ensign v. Southern Pac. Co. (1924) 193 C. 311; Brown v. Beck (1923) 63 C.A. 686.)
CACI Jury Instruction 3928 reads as follows:
CACI 3928 Unusually susceptible plaintiff:
You must decide the full amount of money that will reasonably and fairly compensate [name of plaintiff] for all damages caused by the wrongful conduct of [name of defendant], even if [name of plaintiff] was more susceptible to injury than a normal healthy person would have been, and even if a normally healthy person would not have suffered similar injury.
Pre-existing conditions always enhance general damages
Defense counsel are always looking for ways to minimize plaintiff’s damages claim and attempt to do so by finding anything other than defendant’s conduct to blame for plaintiff’s physical complaints. Defense counsel will surely index your client to determine if he/she has been involved in any prior claims. Through discovery, defense counsel will inquire into any and all prior medical conditions for which your plaintiff has been previously treated in an effort to show that (1) your plaintiff was not injured by the defendant, (2) all your plaintiff’s symptoms pre-existed the injury complained of, (3) whatever objective findings of physical impairment were not caused in the subject incident.
From the plaintiff’s perspective, pre-existing conditions should be welcomed. Although it may complicate the “work up” of a case to a degree, the existence of a pre-existing condition can explain a lot about why your client is suffering to the extent complained. The goal is to use the pre-existing condition as a tool to explain why your client continues to suffer. The pre-existing condition answers the question: Why does Mr. Plaintiff continue to suffer from this incident?
Identify the pre-existing condition:
One can break down the types of pre-existing conditions into three basic categories:
1) Plaintiff has an asymptomatic pre-existing condition which becomes symptomatic due to the instant accident/incident:
A common example is when a 40ish-year-old man or woman who is relatively healthy prior to a rear-end automobile collision has unrelenting back or neck pain that does not resolve within three to six months. The client had never experienced nor had treatment in the past. After unsuccessful conservative care, the treating doctor orders an MRI that shows pre-existing degenerative disc disease – a condition your client never knew he had, but for this recent rear-end collision. The untreated, asymptomatic physical condition has now become symptomatic due to defendant’s negligent conduct.
2) Plaintiff has a symptomatic pre-existing condition that is worsened due to the instant accident/incident:
A common example involves a client that may have been previously injured or suffers from a degenerative condition for which he/she has received prior medical care and treatment. In this type of case, the client usually has some symptoms which over time have been managed and are under control, allowing the client to function normally. Then, your client sustains injury to the same area of his/her body due to defendant’s negligent conduct. Now your client has worsening pain which is no longer “under control” and suffers less mobility and function due to the recent injury.
3) Plaintiff has a pre-existing physical condition not directly injured in the instant accident/incident, but due to the recent trauma his/her overall physicality is diminished as a result of the injury caused by defendant’s negligence:
This situation is most likely to occur with our older clients who may have heart conditions, diabetes, respiratory ailments, arthritis, or any number of physical conditions experienced by most folks that reach senior citizen status. In these cases, the client was getting along a certain way prior to the instant injury and then because of it, suffers a genuine loss of functionality and lifestyle due to the new ailments.
The common thread of each of the above stated categories is that the defendant “takes the plaintiff as he finds him.” It is therefore our job to develop the evidence to present to the adjusters, mediators, and ultimately the jury to demonstrate how the injury has adversely affected plaintiff’s life and thereby requires adequate compensation for all harms caused.
Supporting general damages related to pre-existing conditions
Too often we find ourselves too busy to conduct a complete and thorough interview of our new client. It is perhaps one of the most crucial times in the life of the case to assure proper case development and to avoid future surprises.
From the earliest opportunity, determine from your client his/her medical history. Discuss any and all ailments or physical complaints your client was experiencing prior to the incident. Determine if the client was under a doctor’s care prior to the incident for any conditions. Determine if your client was ever involved in an injury claim or otherwise sustained injury to any part of his/her body. Ask how, if at all, these conditions were affected by the recent injury. Find out all medical providers the client has seen for the last ten years. Obtain those records in advance of filing a lawsuit. Many times the client simply forgets his/her complete medical history. If you obtain and review the medical records, you will eliminate surprise and possible embarrassment.
Most of our senior citizen clients have a myriad of physical conditions for which they are actively treating. These include heart conditions, diabetes, thyroid conditions, prior cancer treatment, high blood pressure, ulcers, arthritis, etc. Ask your client about their overall general health and well-being, and functionality since the injury. More often than not, the older client will complain that the recent injury has “taken them down a notch” in terms of overall health and functionality. How often have we seen the older family member or client who, after sustaining injury in a fall for example, is just never the same? In fact, such an event can lead to a downward spiral from which many never recover.
Consider referring to the following check list when discussing pre-existing health issues with your new client during the initial interview:
Health status prior to injury Current health status post injury Confinement/ambulatory Describe current injury to each area of body Restrictions/limitations/what can’t you do How has this injury affected your life today Prior claims Prior injury – claim or not Under doctor’s care at time of injury Prior illnesses Prior disability Workers’ Compensation claims State of Social Security disability claims Basic 10-year medical history Current doctors – any condition Past doctors Prior surgery Prior medications – including pain medications Current medications – including pain medications Frequency and duration of any symptoms before and after How you feel when you wake up in the morning Difficulty sleeping Change in sleeping habits Change in body weight Change in personal relationships (family, friends, co-workers) Difficulties doing your job Difficulties doing household chores Difficulties re: personal hygiene Changes in physical activity – fatigue, function, hobbies Drug addiction due to pain medication Depression – Post Traumatic Stress Alcohol intake Personality changes due to pain, frustration, etc. Worry Emotional events Suicide thoughts Conditions worsening – improving Changes in lifestyle Witnesses to any of the above.
The foregoing list should provide a good base of information to determine if the issues involving a pre-existing condition are present in your case and a starting point to accumulate and develop your evidence to prove general damages.
Before filing the lawsuit you should have received your client’s medical records for both the recent injury and any past medical conditions. If there exists a pre-existing condition that may be part of your general damage claims, scrutinize how the treating physician for the current injury deals with the pre-existing condition in the medical records. Your client should be told during his/her treatment to vocalize to the treater the current problems and to what extent the pre-existing condition has been worsened due to the recent injury.
For example, in cases involving a disc herniation that most likely predated the instant injury, but is now symptomatic, speak with the treating physician and make sure he can opine that the asymptomatic pre-existing condition was medically certain to have become symptomatic due to the recent trauma. If the treating physician is uncooperative, consider retaining a medical specialist to review the case, and testify at trial if necessary.
In addition to having a good handle on your client’s treatment and medical status, discuss early on with your client the need to document some of what he/she is going through. Clients should be encouraged early on to send private short emails describing their problems, complaints, and what they are going through. This helps later in the case, especially at deposition, to help the client recall their ordeal months after they were suffering the most. Also, tell your client to stay off social media. The defense is watching.
Identify early on with your client what persons in their lives would be potential witnesses to how the client was prior to the injury and subsequent thereto. These persons include doctors, spouses, children, neighbors, best friends, coworkers, clergy, and the like. There is no better way to prove general damages than through witnesses other than your client. Be ready to disclose these witnesses in discovery.
In most cases, once the information set forth above has been gathered, a case value can be formulated and a formal demand presented prior to or in conjunction with filing the lawsuit. The demand letter should include your client’s medical records and bills for the treatment of the recent injury, and where helpful, prior injury medical records that show the pre-existing condition for which you are arguing was aggravated. In the case of an asymptomatic pre-existing condition, note in the demand letter that no such records exist since your client never had any symptoms prior to the injury. Sometimes the case will settle before having to file a lawsuit.
The most important day during the litigation of your client’s case will be his/her deposition. You must spend the time to prepare. Before the deposition the client has responded to written discovery which undoubtedly has disclosed issues concerning pre-existing conditions, treatment, prior disability, and prior accident history. Strategies differ from plaintiff’s counsel regarding the completeness of written discovery responses. One strategy is to provide as little as possible. The other is to provide everything you can to show why the insurer should pay your client’s fair compensation for all his/her losses. This writer prefers the latter strategy. Complete and candid written discovery responses also make it easier to prepare your client for deposition.
While preparing your client for deposition, spend as much time as is needed to answer the following question: “How have the injuries you sustained in this accident/incident affected your life?”
Come up with the laundry list. Be sure to include how the pain and physical limitations has affected the quality of life. What was life like before the injury, even with a pre-existing condition . . . and how is it now much worse because of the pre-existing condition?
During discovery, don’t forget (if asked) to disclose witnesses that may be called at trial to support the plaintiff’s general damages. When these witnesses are identified and deposed, their testimony is generally powerful and might lead to a pre-trial resolution of the case.
• Jury selection
If your case involves the aggravation of a pre-existing condition, address the issue in jury selection. Almost everyone can understand that a person’s health can be affected when injured. Most should also understand that if someone has a prior health condition, that subsequent trauma could worsen that condition. Most prospective jurors have heard of the concept of the “eggshell plaintiff.” This phrase is not optimal, but could be used to help explain the issue. The plaintiff’s lawyer must make sure that the prospective juror does not have a problem dealing with the issue.
• Expert medical witness
The right medical expert for the case is critical. Your treater or expert must be prepared to discuss your client’s present physical condition, the treatment received due to the injury and to explain how and why the pre-existing condition was affected by the recent injury. Most physicians see these issues in practice frequently, but must be prepared in your client’s case. Make sure the expert has reviewed your client’s pre-injury medical records, and that the expert is ready with his/her opinions in this regard at the time of his/her deposition.
• General damages witnesses
As previously discussed, the witnesses other than your client who can verbalize the loss that your client has endured are crucial and powerful. Develop these witnesses and prepare them to discuss the differences in how your client was before and after the injury to include the limitations that existed before the injury as compared to the limitations that existed after the injury and their present observations.
• Closing statement
Damages are typically discussed in closing statements after dealing with the factual and liability disputes. When discussing damages it is helpful to use a blow up of the special verdict form as a guide to explain to the jurors how to go about their task. Also crucial to use in conjunction with the Special Verdict form is a blow up of the jury instructions discussed above. First discuss CACI 3905, 3905A for non-economic damages. One tactic is to blow up the instruction with line items for each of the factors set forth in the instruction . . . both past and future, then fill in the blanks for each dollar amount requested for each damage suffered. Then transfer the total to the blow up of the Special Verdict form. Remember also to incorporate in your summation CACI 3927 Aggravation of Pre-existing Condition or Disability, and CACI 3928 Unusually Susceptible Plaintiff. Remind the jury that it is the pre-existing condition that clearly and truthfully explains precisely why the plaintiff suffers and will continue to suffer in the future. And do not forget to use CACI 3932 and explain plaintiff’s life expectancy and how the jury’s damage award must be sufficient to compensate for all harm caused to your client for the rest of his/her life.
One must expect that with the full implementation of the Affordable Care Act there will likely be more changes that will limit our clients’ claims for medical expenses, past and future. As a result, plaintiff’s counsel needs to fully evaluate and cultivate any facts available to present our clients’ claims for general damages.
Embrace the pre-existing condition in your client’s case. When worked up properly, it can greatly enhance your client’s recovery.
Daniel Pierson established his sole private practice in Century City in 1990. His trial practice focus is the representation of victims of serious personal injury, professional negligence and sexual assault. Daniel was nominated by the Consumer Attorneys Association of Los Angeles for the 2005 Trial Lawyer of the Year Award and is a CAALA Board Member. He has served as the Regional and Finals Coordinator for the American Association for Justice Student Trial Advocacy Competition from 2006 through 2018.
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