Last Update: 01/11/16
In Florida, if you are hurt due to the fault or mistake of another, then you may have a claim for damages to pursue against them (and their insurance coverage). If you are in a car crash, then you may have an accident claim for injuries you suffered as well as property damage to your car. If you are hurt in a fall at a restaurant or in a store, then you may have a slip and fall injury claim against the owner or operator of that business for your bodily injury damages (lost wages, pain and suffering, lost earning capacity, medical expenses, etc.).
However, what happens to your claim for damages if you have a “pre-existing condition” — if you already suffered some kind of bodily harm or hurt before the accident?
Well, pre-existing conditions do complicate injury claims. The defendant will be looking for reasons not to pay the claim, or to pay less than has been demanded. An injury victim with a pre-existing condition is someone who can expect a fight with the defendant over their responsibility for the damages resulting from the accident for which they negligently caused.
The key question here is what is the cause of the victim’s harm, or the “causation.” If the accident victim can demonstrate that they were hurt in a manner that is independent of their pre-existing condition then the defendant remains legally liable.
In any accident claim, the injured person has to prove four elements: duty, breach, cause, and harm. Causation can be the most complicated factor in their case — not only because of the unique circumstances of their situation, but because of the fact that there may be more than one cause in play.
The Case of Concurrent Cause and the Colon Surgeon
Which means that both sides — the victim and the wrongdoer — will be investigating the medical facts surrounding the accident and its aftermath with great detail. Both the accident victim and the business responsible for what has happened will be investigating the causes for the victim’s damages.
The insurance adjusters and their investigators will be at work for the defendant; and if the victim has hired an experienced personal injury lawyer, then the plaintiff will have investigators working on his or her behalf too — looking for evidence of causation related to their claim.
And sometimes, they may find there are “concurrent causes” — which means that the trier of fact (judge or jury) will have to decide who is at fault and their level of responsibility (assuming no settlement is reached).
For help in understanding a concurrent cause, let’s consider the case of Cruz v. Plasencia, 778 So. 2d 458 (Fla. Dist. Ct. App. 2001). In this case, Marta Godoy entered a local Florida hospital to have a colonoscopy. She was known to suffer from diverticulosis and her doctor, Dr. Hernandez, wanted her to have the surgical procedure done.
So, Ms. Godoy agreed and went to the hospital for colon surgery by Dr. Hernandez. Things did not go as planned. During the procedure, Dr. Hernandez made the mistake of cutting her colon (he “perforated” it). This was a major problem because a perforated colon allows bacteria to rush into the rest of the body from the colon. The colon no longer protects the rest of the body from being infected by the bacteria.
Suddenly, another doctor joined in to help Ms. Godoy. Dr. Plasencia (a Board recognized expert in colon surgery) worked for several hours to fix this dangerous problem. Dr. Hernandez kept working too. Sadly, they were unsuccessful.
The bacteria that had been released into Ms. Godoy’s body wasn’t halted. It caused sepsis, a life-threatening condition, and other serious problems as well. Several days later, Marta Godoy died from organ failure. The personal representative of her estate sued Dr. Plasencia, the colon surgeon, for medical malpractice and wrongful death.
Defending against responsibility for what had happened, the colon specialist argued that his efforts were not the cause of the patient’s death because the colon had been perforated before he began his efforts.
He didn’t perforate the colon, he was trying to fix it! He didn’t CAUSE this!
The personal representative countered with an argument of “concurrent causation.”
She argued that the jury should be instructed on “concurrent causation” as set forth in Florida Standard Jury Instructions. Specifically, the jury should be instructed by the judge that the act of someone (like the colon surgeon) can be considered the legal cause of damage or injury if their negligence operates in combination with another’s act (like the first doctor) or in combination with some other cause (like the bacterial spread, etc.) — if that other cause occurs at the same time as their negligence and if their negligence contributes substantially to producing the damage.
As the Florida Supreme Court has explained, concurrent causation can exist when the defendant’s negligence acts are in combination with plaintiff’s other physical conditions to produce the resulting injury and the defendant can be held liable for negligent damages even if he can point the finger at other causes for what has happened. Marinelli v. Grace, 608 So.2d 833, 834 (Fla. 4th DCA 1992), rev. denied, 620 So.2d 761 (Fla. 1993),
Preexisting Conditions, Concurrent Conditions, and Liability
In determining the cause of an injury, even a wrongful death, more than one cause may be found to exist. Accidents and injuries can be complicated fact patterns, life isn’t always simple is it?
However, whether or not that cause will limit or excuse the legal liability of the defendant can be a complicated legal matter and something that an experienced personal injury lawyer may need to assess with the accident victim or their loved ones in order for justice to be served.
What Should You Do Now?
A good piece of advice if you have been harmed in an accident, is to at least speak with an experienced personal injury lawyer before you file a claim to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.