Articles Posted in Aggravation of Medical Condition

There are unique challenges when representing elderly clients in personal injury cases.  Sometimes the injuries suffered in the subject event are discounted by doctors, insurance adjusters and opposing counsel.  Let’s look at the issue of scarring…is if fair that a scar on the body or face of an older individual may be deemed as “worth less” than scarring to a younger person?  The older person may have just as much pride in his or her appearance, and therefore scarring should not be discounted as a damage claim solely due to the age of the claimant.

One area where damages may be legitimately reduced is loss of earning capacity.  The average life expectancy of a plaintiff is used to calculate future wage loss, and obviously an senior citizen is going to have fewer years remaining to earn money than a younger person.  Often an older plaintiff is already retired, significantly reducing this area of economic damage. However, a skilled plaintiff attorney may be able to spin the retirement angle into a compelling argument about how greatly the plaintiff’s “golden years” have been affected by the pain, suffering, anxiety and inconvenience that he or she is dealing with as a result of accident-related injuries.  The plaintiff has worked hard his or her whole life with the expectation of enjoying their post-work life, and any disruption of that enjoyment could be construed as being especially valuable.

Elderly people may experience more serious injuries than younger people due to degenerative conditions, arthritis or osteoporosis.  Additionally, healing time may be longer and treatment may be prolonged.  All of these scenarios could be argued persuasively to increase the “pain and suffering” damages involved with the elderly person’s claim.
This is part 2 of a 2 part series on Diagnosing loss of smell. Part 1 of the article is here.

After the patient sees the ENT doctor and neurologist, the neurologist will usually order an Olfactory  Nerve Evoked Potentials test to help confirm the patients loss of smell.

This test measures electrical activity in the nerve as various smells are introduced.

Recently a neighbor informed me that he was experiencing loss of hearing and tinnitus. Initially, I assumed this was age related. He went on to explain however that this was a side effect of a medication he was recently prescribed.

Hearing loss due to medication use is medically described as ototoxicity.  Medications that can cause hearing loss or tinnitus can include prescriptions such as: antibiotics, chemotherapy treatments, nonsteroidal anti-inflammatory drugs (NSAID’s), diuretics, cardiac medications, and psychopharmacologic drugs (Xanax, Wellbutin.)  A complete list of such medications can be found here.

People using medications that are considered otoxic (another words have the potential to harm the ear) may not suffer any hearing loss or tinnitus issues at all simply because peoples bodies react differently to the same medication.

You may have heard the descriptive legal term “eggshell plaintiff” and wondered what that meant.  It conjures up a vision of Humpty Dumpty sitting on the witness stand.  But think about the characteristics of an eggshell … as evidenced by Mr. Dumpty’s notorious fall, eggshells are notoriously fragile – and essentially that is what the term refers to, a fragile, or more easily injured, plaintiff.

The eggshell plaintiff is a concept found in civil proceedings, where a person (“the plaintiff”) can sue another (“the defendant”) based on a negligent or intentional act that caused damage.  A simple example is if a person is not paying attention to the road and rear-ends another vehicle, causing injury to the person driving the rear-ended vehicle, the injured driver can sue the negligent driver for monetary damages.

Now, take the same situation above – what if the injured driver suffered a relatively minor laceration during the crash, but because he or she was a hemophiliac, the minor laceration caused the injured person to bleed to death.  Could the negligent driver then be sued by the decedent’s family for wrongful death?

In car accidents, there can be many cases of blunt abdominal trauma. One study looked at an isolated jejunal tear in a 24 year old male trucker who exhibited abdominal pain after sustaining blunt abdominal trauma after hitting the steering wheel in an accident. The treating abdphysician missed the isolated jejunal tear and a nearby contusion and secondary tear so conservative care was recommended. He gradually deteriorated and died from his injury. The autopsy showed the jejunal tear in the small bowel with secondary peritonitis. An exploratory laparotomy and special x-rays would have uncovered the problem and he would likely have survived his injuries.

Another study looked at the pattern of small bowel mesenteric injuries caused by contact with the steering wheel during a motor vehicle. They recognized that small gut mesenteric injuries were rare after blunt abdominal trauma from steering wheels. The researchers did a 10 year retrospective study on these types of injury. They found that all such injuries occurred in males with 13 jejunal mesenteric injuries and four ileal mesenteric injuries.

They concluded by acknowledging that these are rare injuries and that tears in the tissue could be longitudinal or transverse. Suture repair is necessary and these patients need to get to a tertiary care facility because a delay in treatment can increase morbidity and mortality. While rare, these types of injuries should be considered when the individual sustains a blunt trauma with a steering wheel in a motor vehicle accident.


A JAMA study published in January concluded that people that have sustained traumatic brain injuries (TBI) were more likely to experience a premature death, which is defined as dying before 56 years of age.

The researchers followed everyone born in 1954 and later in Sweden that had been treated medically (outpatient or inpatient) for TBI between the years of 1969 and 2009.  The total number of people followed under these criteria was 218,300.  The researchers looked at death rates at least six months after the brain injury and were compared with the general population.  The study also considered the death rates of siblings of people within the study.

Researchers found that people who had suffered TBI were three times more likely to die prematurely than those not affected.  The rate of premature death in the general population is 0.2%.  The rate jumped up 20 times higher when the TBI was superimposed on a pre-existing psychiatric diagnosis.  TBI sufferers were 2.6 times more likely than their unaffected siblings to die prematurely.  Looking at siblings allowed the research to account for genetic factors, and early environment, according to the lead author of the study, Dr. Seena Fezel, of Oxford University’s Psychiatry Department.

Post traumatic arthritis is a form of osteoarthritis ( wearing away of cartilage in the joint) that is caused or aggravated by trauma.

It is estimated that 12 percent of all cases of osteoarthritis are post-traumatic in origin.

Post-traumatic arthritis can be caused by auto accidents, falls, athletic injuries or other forms of physical trauma.

diabetes.jpgOften times attorneys have occasions to represent people in car accidents that suffered from a pre-existing diabetic condition.

Here is an example of such a case that involved this office. A man with a pre-existing diabetic condition was involved in an accident and injured his back. Thereafter, he developed a limp when he walked and a blister on his foot which was noted in his physical therapy records. The blister became infected to such a degree that later his foot was amputated.

The insurance carrier argued forcefully that he had merely injured his back but a medical expert convinced the arbitrator that the amputation was actually caused by the aggravation of his pre-existing diabetes allowing recovery of the policy limits for the client.