By Jeremy H. D’Amico and Michael A. D’Amico
What is the difference between a pre-existing “condition” and pre-existing “disability”? The distinction has significant implications for your client when improperly lumped into the pre-existing disability category when she actually suffers from a pre-existing condition. Often the terms are mistakenly used interchangeably. Civil Guide Jury Instruction 3.4-1 uses only the term “pre-existing condition” but incorporates the doctrine of “pre-existing disability” without discussing the differences. This jury instruction also lacks clarity as it confuses compensating a plaintiff in full for symptoms lit up due to a quiescent pre-existing condition with an instruction that the plaintiff is limited to compensation for only the aggravation or worsening of the condition. This article explains the distinction between the two doctrines, and suggests what should be done when a jury cannot apportion the symptoms between a pre-existing disability and the tortfeasor’s conduct.
In Tuite v. Stop & Shop, the Connecticut Appellate Court articulated the difference between the two doctrines in a footnote. There, the plaintiff’s physician testified on direct examination that a fall at Stop & Shop was a substantial contributing factor in causing the plaintiff’s permanent injury. The defendant attempted to impeach the doctor with deposition testimony that 50% of the injury was related to a pre-existing condition. The Appellate Court affirmed the trial court’s decision that this testimony was not relevant and was properly excluded. The only purpose of this testimony would be to mislead the jury into improperly reducing compensation by 50% for the portion of the permanent injury related to the quiescent pre-existing condition—in contravention of the law on pre-existing conditions.
Following Connecticut law and the Restatement (Second) of Torts, the Appellate Court defined a pre-existing condition as an underlying asymptomatic state—such as degenerative spinal changes, arthritis, or genetic defects. The term is used to describe only those conditions causing the plaintiff no symptoms or perceived limitations at the time of the tortfeasor’s conduct. This is often referred to as the “eggshell skull” doctrine.
To the contrary, a pre-existing disability is defined as an underlying symptomatic state; one that is causing some degree of perceived limitation or symptoms at the time of the tortfeasor’s negligence. This can be a prior injury resulting in a permanent symptomatic impairment, or symptomatic arthritis causing pain, for which the plaintiff had complaints of at the time of the tortfeasor’s conduct.
The focus of either doctrine is the symptoms or lack thereof at the time of the defendant’s conduct. Thus, when a person has a pre-existing condition, she is entitled to full compensation for the resulting symptoms—because she had none before. There is no reduction just because the plaintiff had the pre-existing asymptomatic condition itself. It was for this reason that the trial court in Tuite excluded testimony that a portion of symptoms were caused from arthritis—because it was asymptomatic. Therefore it was irrelevant and improper for there to be any reduction. The defendant takes the plaintiff as he finds her. Testimony apportioning symptoms between the underlying asymptomatic condition and the tortfeasor’s conduct was improper.
In contrast, when a person has a pre-existing disability, she is entitled to compensation only for the worsening of the symptoms caused by the defendant. It is in this context that testimony differentiating the cause of the symptoms may be relevant.
Since Tuite, however, there has been little discussion recognizing the difference in these doctrines. Some use pre-existing condition and pre-existing disability interchangeably. Others blend the two doctrines together. Civil Guide Jury Instruction 3.4-1 is an example of this and it should be corrected, and until corrected, not relied upon. The Civil Guide Instructions contain a disclaimer that they may not be “legally sufficient” and should be used only as a guide to craft a correct statement of law as applied to the facts of your case.
Here is the language on “Pre-existing conditions” contained in 3.4-1.
The plaintiff is entitled to full compensation for all injuries and losses proximately caused by the defendant’s negligence even though those injuries and losses are more serious than they otherwise would have been because of a pre-existing condition. You may not compensate the plaintiff for the pre-existing injury itself. However, the aggravation of such an injury, proximately caused by the defendant’s negligence, is a proper item of noneconomic damages. The plaintiff alleges that, before the accident occurred, (he/she) had a preexisting medical condition but that condition was not causing the plaintiff to suffer any symptoms. If you find that the plaintiff had a preexisting condition from which (he/she) was suffering no symptoms and that the condition was aggravated by an injury caused by the defendant’s negligence, the plaintiff is entitled to recover full compensation for those symptoms, even though the symptoms are greater than if the plaintiff had not suffered from this preexisting condition.
This charge uses only the term “pre-existing condition.” It does not use the term “pre-existing disability” (there is no guide instruction on pre-existing disability). Yet, the charge blends both doctrines under the term “pre-existing condition,” which is potentially confusing and misleading to a jury.
Let’s take it line by line. The first line is an accurate statement of the law of pre-existing conditions, articulating the point that a vulnerable plaintiff is entitled to full compensation even though she may be more susceptible to harm than a healthy person, and is hurt more:
The plaintiff is entitled to full compensation for all injuries and losses proximately caused by the defendant’s negligence even though those injuries and losses are more serious than they otherwise would have been because of a pre-existing condition.
The second sentence, however, is misleading.
You may not compensate the plaintiff for the pre-existing injury itself.
Not only does this sentence assume there was a previous injury, but also a pre-existing condition does not require an injury; it can be a congenital defect or a degenerative change. Further, instructing the jury that they are to not compensate the plaintiff for the underlying condition may mislead them into believing they are to not compensate the plaintiff for the symptoms caused by the underlying condition, creating an improper implicit dichotomy. This is in contravention of the doctrine because the pre-existing condition is why that person is more hurt than a healthy person. This is why the Court in Tuite precluded testimony distinguishing the two. It would be clearer to assure the jury that it is not providing compensation for the pre-existing condition itself but only for the symptoms caused because of the condition. Having a pre-existing condition does not excuse the defendant’s conduct.
Continuing on, the third sentence describes the doctrine of “pre-existing disability” not a “condition.”
However, the aggravation of such an injury, proximately caused by the defendant’s negligence, is a proper item of noneconomic damages.
It again uses the term “injury” implying that the plaintiff was hurt before the defendant’s conduct. Further, the term “aggravation” is misleading when used to describe a pre-existing condition. The term colloquially implies that the plaintiff suffered symptoms that became worse because of the defendant’s conduct, which is not what occurs with a pre-existing condition. “Aggravation” damages are only recoverable when a person suffers a pre-existing disability. While “aggravation” can be construed to mean a dormant asymptomatic condition that became “aggravated” to create symptoms, the better phrase, as the Connecticut Supreme Court in Mourison v. Hansen stated, is “lighting up” a dormant condition. This is a clearer way of explaining the doctrine, and it also does not imply the existence of any symptoms, or an injury, at the time of the defendant’s conduct.
The sentence in the standard guide charge goes on to state that the “aggravation of such an injury” is a proper element of “noneconomic” damages; but medical treatment required to treat the symptoms is also a proper element of damages. Singling out only noneconomic damages as compensable is misleading. The remainder of the standard guide instruction is a correct statement of the law although the preferred term should be “lit up.”
When a plaintiff has a pre-existing condition, Civil Guide Jury Instruction 3.4-1 should not be given. And when a person is asymptomatic from a pre-existing condition, there should be no testimony distinguishing what portion of the symptoms are caused from the defendant’s conduct versus the underlying condition, nor should this be in any medical report requested by counsel, as it would be improper to admit such. See Tuite. When crafting a charge consider the following:
- A pre-existing condition is one that causes a person no symptoms or limitations at the time of the defendant’s conduct;
- The defendant is liable for all of the symptoms caused and the plaintiff is to be fully compensated;
- A distinction in the cause of the symptoms should not be made between the underlying condition and the defendant’s conduct.
A sample, concise charge correct in the law would be:
You may find that at the time of the crash, the Plaintiff had a pre-existing condition that made him particularly vulnerable to further injury. If you find that the plaintiff’s prior condition no longer caused him any pain or symptoms at the time of the incident, and you find that the incident proximately caused the condition to become painful or disabling, then the defendant is to compensate the plaintiff fully for all such pain, suffering, and disability. By doing so, you are not compensating the plaintiff for the underlying condition itself, but for the “lighting up” of the condition. That the plaintiff had a prior condition does not relieve the defendant from fully compensating the plaintiff. In other words, the defendant takes the plaintiff as she finds him, and is accountable for all injuries proximately caused by her negligence. The defendant cannot now excuse her conduct by saying that the plaintiff had a pre-existing condition which would make him suffer more or longer, or be more severely injured than a person without the condition. See Elliott v. Cyr, NNH-CV16-6063690-S.
On the other hand, when a person has symptoms from a pre-existing disability at the time of the defendant’s conduct, the law of pre-existing disabilities comes into play. There is currently no civil guide instruction on this important doctrine. And there is scant caselaw in Connecticut mentioning the term. The cases that do discuss a pre-existing disability do so primarily in the context of the worker’s compensation regime. Tuite appears to be the only appellate case discussing the doctrine. The one published Superior Court personal injury opinion analyzing an instruction using the term “pre-existing disability” uses it interchangeably, and incorrectly, with “pre-existing condition.”
Put simply, when a person has a pre-existing disability at the time of the defendant’s conduct, the person is only entitled to compensation for the worsening of the symptoms or disability. It is when there is evidence of prior symptoms or limitations that the factfinder is to determine the extent of the worsening caused by the tortfeasor. For example, a plaintiff may testify that before a crash she had pain in the shoulder of 3/10 but after the crash it was 5/10. The plaintiff is compensated only for the increase of 2/10.
This analysis can get more complex. For example, the Iowa Supreme Court addressed a scenario where a woman suffered a back injury in a car crash in 1992. Prior to that, the woman suffered a back injury in 1987 resulting in a 10% disability rating. After the 1992 crash, the same doctor rated her at 12%. The Supreme Court held that the trial court was proper in giving the pre-existing condition charge because the jury could find that the 10% disability caused no symptoms at the time of the crash and that the crash, while causing only a 2% further disability, could reasonably be found to be the cause of all the current symptoms. Waits v. United Fire & Cas. Co., 572 N.W. 2d at 565, 576 (1997). The Court also held that it was proper to give the pre-existing disability charge as the jury could find that the plaintiff was experiencing symptoms from the 10% disability at the time of the 1992 crash. It is therefore a jury question whether a plaintiff is asymptomatic at the time of the tortfeasor’s conduct.
In the context of a pre-existing disability, determining how much worse a person’s symptoms are because of a defendant’s conduct is very fact-intensive. At times, the jury may hopelessly struggle to determine how much worse the symptoms are. What does a jury do when it cannot apportion the symptoms? Knowing how to handle this at trial and in the charge conference can avoid an improper defense verdict on causation. Connecticut courts have not broached this issue in this context. And looking to other states requires careful scrutiny since other courts blend the two doctrines and use the terms interchangeably; or otherwise don’t follow the distinction made in the Restatement or Connecticut law.
Some state Supreme Courts hold that when the jury cannot apportion the symptoms between the tortfeasor versus what existed before, then the defendant is liable for all the symptoms (similar to the creation of an indivisible injury). The policy being that the tortfeasor created the uncertainty as to apportionment and the wrongdoer should not benefit from the plaintiff’s inability to prove a worsening with exactitude. See Bigley v. Craven, 769 P.2d 892, 898 (Wyo. 1989) (holding that jury is to decide whether symptoms can be apportioned and if not, defendant should be liable for all symptoms).
Other state Supreme Courts hold that if the jury cannot determine how much worse the symptoms became, it is to make a rough apportionment between the prior disability and the tortfeasor’s conduct. If the jury cannot make even a rough apportionment, then the jury is to divide the symptoms equally. See Montalvo v. Lapez, 77 Haw. 282 (1994).
The Supreme Court of Hawaii follows the distinction between pre-existing conditions and pre-existing disabilities similar to Connecticut. In Montalvo v. Lapez, the Hawaii Supreme Court addressed a situation where the plaintiff got hit by a city truck in 1988. Prior to that, he was involved in crashes in 1964, 1980, and 1987. And he was assaulted twice before the city crash in 1987 and early 1988. Then after the city crash, he aggravated his symptoms in 1989, 1990, 1991. Sound familiar? The trial court instructed the jury that it was to determine the injuries caused by the prior instances, and those caused by the city crash. If the jury could not, it was to make a rough apportionment between the events. If the jury could not make even a rough apportionment, then it was to divide the damages equally.
The Hawaii Supreme Court reversed and remanded for a new trial because the trial court precluded the jury from considering symptoms caused by post-crash incidents. However, the Supreme Court affirmed the trial court’s rationale and apportionment instruction. In so doing, the Court recognized the competing policy concerns. An injured plaintiff should not be left without a remedy for failing to prove the extent of the damages; and a defendant should not be liable for harms that it did not cause. It is important to note that this apportionment instruction is only given when there is evidence of a pre-existing symptomatic disability. It is not given when a plaintiff has a pre-existing condition.
The Hawaii Supreme Court held that balancing the policy issues of both parties required equal apportionment. Critics of equal apportionment may argue that it is arbitrary. However, it is no less arbitrary than the indivisible injury rule requiring the defendant to be fully liable for the symptoms even though a portion of those symptoms are caused from a pre-existing disability.
While Connecticut has not directly addressed this issue, it is likely that it would reach the same result as the Hawaii Supreme Court. Following Card v. State, and the apportionment statute, Connecticut has a policy of holding a defendant liable for only those harms caused by that defendant. In Card v. State, the Connecticut Appellate Court abrogated the common law indivisible injury rule. This is the policy relied upon by other states in holding the defendant liable for all the symptoms when it is unable to determine that portion related to the tortfeasor’s conduct and that related to the pre-existing disability. In Card v. State, the plaintiff suffered injuries in three different crashes months apart. The plaintiff settled her claim against one of the defendants and proceeded to trial against the remaining two. The jury returned a verdict splitting the damages equally between the two. Both parties appealed. The plaintiff argued that each defendant was fully liable while the defendant argued that the final tortfeasor (and not it) takes the victim as he finds her and should be liable for all the injuries.
The Appellate Court rejected both approaches. It held that the apportionment statute, § 52-572h, instructs the jury to determine the extent of liability of each defendant. It recognized, however, that the statute is silent on what to do if no apportionment can reasonably be made. The Connecticut Appellate Court relied on the Hawaii Supreme Court’s decision of Loui v. Oakley, and adopted the instruction that a jury is to attempt to make a rough apportionment. If a rough apportionment cannot be made, then the jury is to divide damages equally.
Because the Appellate Court rejected the indivisible injury rule in the quintessential scenario for which it was created (an inability to determine which tortfeasor caused the harm), it is likely that Connecticut courts would apply the same rationale to situations involving pre-existing symptomatic disabilities aggravated by the conduct of a tortfeasor, an analogous but factually distinct scenario.
In sum, Connecticut differentiates between a pre-existing condition and a pre-existing disability. A pre-existing asymptomatic condition requires full compensation for the lighting-up. A pre-existing symptomatic disability requires compensation for the extent of the aggravation only. What happens in the instance of an aggravation of a pre-existing disability when a jury cannot determine what portion of the symptoms are caused by the pre-existing disability and the tortfeasor’s conduct is unresolved in Connecticut. Balancing the policies of ensuring the plaintiff is not without remedy and that of holding the defendant liable for only the harms he causes, a jury should be instructed to apportion the damages. In sequence, the jury should determine whether the defendant’s conduct was a substantial factor in worsening the plaintiff’s symptoms. If so, the jury should apportion the symptoms between the pre-existing disability and the defendant’s conduct; If it cannot make such an apportionment then it should be instructed to roughly apportion the damages. If the jury cannot roughly apportion the two, then it should be instructed to divide the damages equally.
A sample jury charge is set out below:
In the alternative, you may find that at the time of the incident, the plaintiff was experiencing some pain or symptoms from a prior disability. If you so find, the plaintiff is entitled to be compensated for the increase in pain or symptoms proximately caused by the defendant’s conduct. In other words, the plaintiff is entitled to be compensated for the worsening of the symptoms. You are to apportion the pain and symptoms between the prior disability and the defendant’s conduct. If you are unable to make such an apportionment, you must make a rough apportionment based on the evidence presented to you. If you are unable to make even a rough apportionment between any pain and symptoms caused by the prior disability and those caused by the defendant’s conduct, you are to apportion the plaintiff’s pain and symptoms equally.
In a case where a jury may find that the plaintiff had either a pre-existing condition or a pre-existing disability, both instructions should be given. Having a clear understanding of these two related but very different doctrines is critical to assuring a fair result for your injured plaintiff.
- Tuite v. Stop & Shop, 45 Conn. App. 305, 310 n.2 (1997)
- Adding to the confusion is that the AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition defines “aggravation” as a permanent worsening of a pre-existing condition. An “exacerbation” is synonymous with “flare-up” and means only a temporary worsening. It is important to recognize the language of the Guides is not the language of the law. The Guides, Fifth Edition defines only “aggravation,” and defines it as “a factor that alters the course or progression of the medical impairment.” This definition is different than the Guides, Sixth.
- Card v. State, 57 Conn. App. 134 (2000)
- 128 Conn. 62, 65 (1941)
- Both parties objected. The city objected because the instruction excluded post-1988 incidents. The plaintiff objected asserting that the defendant should be fully liable for all symptoms if the jury found them to be incapable of apportionment