By Jay Wasserman

A 54-year-old warehouse supervisor in Broward County is stopped at a light on Sunrise Boulevard when a pickup truck hits him from behind at about 30 miles per hour. Before the crash he had occasional low back stiffness, saw a chiropractor six times in 2021, and had never missed a day of work for his back. After the crash he has pain radiating down his left leg, cannot sit through a shift, and, after two epidural injections fail, his orthopedic surgeon recommends a lumbar fusion.

The insurance adjuster’s response comes in a single sentence: the MRI shows “multilevel degenerative disc disease,” the claimant had prior chiropractic treatment, and the condition is therefore pre-existing.

That sentence appears, in one form or another, in a very large share of the injury claims we handle. It is often the insurer’s central defense, and it is often wrong as a matter of Florida law. A pre-existing condition does not defeat an injury claim. It changes what has to be proved and how carefully the case has to be built. This article explains the rules Florida applies, how the defense uses prior medical history, and what separates an aggravation case that is paid from one that is not.

The starting rule: the defendant takes the plaintiff as it finds them

Florida has followed the so-called eggshell plaintiff rule for nearly a century. A negligent defendant is responsible for the harm its conduct actually causes, even if the injured person was more vulnerable than an average person would have been and even if a healthier person would have been hurt less. The defendant does not get to choose a younger, stronger, or healthier victim.

The rule has two practical consequences.

First, vulnerability is not a defense. If a collision that would have caused a healthy 25-year-old a few weeks of soreness instead causes a disc herniation in a 60-year-old whose spine was already degenerating, the defendant is responsible for the herniation, not for the soreness a hypothetical younger person would have suffered.

Second, the defendant is not responsible for what it did not cause. The eggshell rule does not make a defendant pay for a condition the plaintiff already had, to the extent it already existed. If the plaintiff had a symptomatic, treated, disabling back condition before the crash, the defendant pays for the worsening, not for the baseline.

Everything else in a pre-existing condition case is about the line between those two propositions.

Aggravation and activation: what the jury is told

Florida’s standard civil jury instructions address pre-existing conditions directly, in the instruction on other contributing causes of damages, numbered 501.5. In substance, subsection (a) tells the jury:

If it finds for the plaintiff, it should compensate the plaintiff for any aggravation of an existing disease or physical defect, or for the activation of a latent disease or physical defect, resulting from the injury.
If it finds an aggravation, it should determine, if it can, what portion of the plaintiff’s condition resulted from the aggravation, and award damages only for that portion.
If it cannot make that determination, or cannot determine whether the condition resulted from the aggravation, it should award damages for the entire condition.

That last sentence is the most important rule in this area of law, and it is the one adjusters least like to discuss. When the evidence does not allow a principled separation between what the plaintiff had before and what the defendant caused, Florida does not split the difference in the defendant’s favor. The risk of an impossible apportionment falls on the wrongdoer, not on the injured person.

Florida appellate courts have held that a trial court abuses its discretion by refusing to give the aggravation instruction when it accurately states the law, the evidence supports it, and the jury needs it to resolve the issues. In a case with any history at all, the instruction should be requested, and the evidence should be developed with that instruction in mind.

Aggravation versus activation

The two words describe different situations, and the difference matters to the evidence.

Aggravation means the plaintiff had a known, often symptomatic, condition that the injury made worse: a knee that ached on long walks before the fall and now needs a replacement, or a neck that was treated for strain five years ago and now has a herniation with nerve compression.

Activation means the plaintiff had a condition that existed but produced no symptoms, and the injury turned it into a symptomatic, painful, or disabling one. The most common example is the degenerative spine: changes visible on imaging that had never caused pain, never been treated, and never limited anything until the crash. In an activation case, the plaintiff’s “before” picture is a person who functioned normally, and that is usually the most powerful fact in the case.

Degenerative findings on an MRI: what the radiology report means and what it does not

The phrase “degenerative disc disease” in a radiology report sounds like a diagnosis of an illness. Usually it is a description of age.

Large studies of people with no back pain at all show how common these findings are. A widely cited 2015 systematic review in the American Journal of Neuroradiology, which pooled imaging studies of more than 3,000 asymptomatic people, found that disc degeneration appears in roughly 37 percent of pain-free 20-year-olds and roughly 96 percent of pain-free 80-year-olds, and that disc bulges appear in about 30 percent of pain-free 20-year-olds and more than 80 percent of pain-free 80-year-olds. Disc protrusions, facet changes, and loss of disc height are similarly common in people who have never had a symptom.

The point cuts both ways, and a careful lawyer uses it carefully.

It undermines the defense’s favorite argument. If most adults over 40 have degenerative findings, the presence of those findings says very little about whether a person had pain, needed treatment, or was limited before the crash. A person whose spine looked “degenerative” on Monday and who worked full shifts, played with grandchildren, and took no pain medication was, for legal purposes, a person with an asymptomatic condition.

It also means the injury has to be proved by more than the MRI. Because degenerative findings are common, an MRI taken after a crash showing a bulging disc does not by itself prove the crash caused the bulge. The case is built on the change: in symptoms, in function, in neurological findings, and, where they exist, in comparison images.

What radiologists and surgeons look for

Treating physicians and retained experts use several kinds of evidence to separate an acute injury from long-standing degeneration:

Comparison imaging. A prior MRI or X-ray of the same body part is the single most valuable piece of evidence in many aggravation cases. A disc that was mildly bulging in 2022 and is herniated with nerve root compression in 2026 tells its own story. Prior imaging is often sitting in a hospital’s archive or an old orthopedic file, and it should be found early.
Findings associated with acute injury. Certain imaging features, such as bone marrow edema, annular tears with particular signal characteristics, or fluid in places it should not be, can suggest recent trauma. Their significance is debated and depends on timing, so they need a qualified physician’s interpretation.
Clinical correlation. Does the location of the pain match the level of the finding? Do the neurological signs, such as reflex changes, numbness in a particular distribution, or weakness, match a nerve root that the imaging shows is compressed? A finding that explains the symptoms carries far more weight than one that does not.
Timing of onset. Symptoms that began at the scene or within days, documented in emergency room and urgent care records, are strong evidence of causation. A long unexplained gap before the first complaint is one of the defense’s best arguments.

Prior accidents, prior claims, and the Fabre problem

A pre-existing condition sometimes comes from an earlier accident, which raises a separate set of issues.

The insurer will know. Liability insurers routinely search industry claims databases that record prior bodily injury claims, and the defense will subpoena records from prior treating providers, prior insurers, and sometimes prior lawsuits. It is safest to assume that every prior accident, claim, and course of treatment will be found.

Successive accidents. When a person is injured in two separate accidents and the injuries overlap, the second defendant may try to place blame for the condition on the first accident. Under Fla. Stat. § 768.81(3), a defendant may ask the jury to apportion fault to a nonparty, often called a Fabre defendant after Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), but only by pleading the nonparty’s fault and proving it at trial. Whether a prior, separate accident’s tortfeasor belongs on the verdict form at all depends on whether the two events combined to cause a single, indivisible injury or caused distinct, separable harms. That is a fact-intensive question, and the answer can change the value of a case dramatically.

Prior settlements. If the plaintiff settled a claim for an earlier injury to the same body part, the defense will argue that the earlier settlement already compensated part of the current condition. The response is evidence: the plaintiff’s recovery after the first accident, the end of treatment, a return to full activity, and a physician’s opinion that the plaintiff had reached a baseline before the second event.

Later medical care: the rule of Stuart v. Hertz

A related rule concerns what happens after the injury. Under Stuart v. Hertz Corp., 351 So. 2d 703 (Fla. 1977), a negligent defendant who causes an injury is also responsible for additional harm caused by the medical treatment the plaintiff reasonably seeks for that injury, including harm caused by a physician’s negligence. In Gross v. Lyons, 763 So. 2d 276 (Fla. 2000), the Florida Supreme Court held that the rule survived Florida’s comparative fault statute: the original tortfeasor generally may not place the subsequent treating physician on the verdict form to reduce its share.

Florida’s standard jury instructions include a corresponding provision, 501.5(c), on additional harm caused by subsequent medical treatment. For an injured person, the practical effect is that a complication from surgery, or a treatment that went badly, is generally part of the damages the at-fault party must answer for, as long as the plaintiff acted reasonably in seeking and following the treatment.

The defense medical examination

In almost every Florida injury lawsuit involving a disputed condition, the defense will ask for a compulsory medical examination, usually called a CME, under Rule 1.360 of the Florida Rules of Civil Procedure. The rule allows a party to request an examination by a qualified examiner when the condition of another party is in controversy and good cause exists. In practice, the examination is performed by a physician the defense selects and pays, and the physician usually writes a report and later testifies.

It is worth being direct about what these examinations are. Florida courts have described them as adversarial, not as medical care. The physician is not treating the plaintiff, there is no doctor-patient relationship in the ordinary sense, and the report is prepared for the defense. In pre-existing condition cases, the report very often says some version of the same thing:

The imaging shows degenerative changes that predate the accident.
The plaintiff sustained a temporary sprain or strain that resolved, or should have resolved, within six to twelve weeks.
There are no objective findings to support continued complaints.
Any surgery was not causally related to the accident and would have been needed eventually anyway.

Protections at the examination. Florida courts have long recognized that, because the examination is adversarial, the plaintiff is entitled to certain protections, typically including having counsel or a representative present and, in many circumstances, a videographer or court reporter. The specifics, including how long the examination may last, what questions the physician may ask, whether the plaintiff must fill out the examiner’s forms, and whether a videotape may be used, are frequently governed by local standing orders that differ from one circuit to the next. Palm Beach, Broward, Miami-Dade, and Orange County judges all have their own approaches, and the order controlling the examination should be reviewed before the plaintiff walks in.

Preparation. The examination is not the place to argue the case. The plaintiff should answer honestly and consistently with the deposition and medical history, describe prior conditions accurately, and avoid both minimizing and exaggerating. Physical tests performed during the examination, including tests designed to detect inconsistent effort, become part of the report.

Discovering the examiner’s bias. The jury is entitled to know how often a defense examiner performs these examinations and how much of the examiner’s income comes from them. Under Elkins v. Syken, 672 So. 2d 517 (Fla. 1996), and Rule 1.280, that discovery is permitted but limited to specific categories, such as the approximate portion of the expert’s practice devoted to litigation work and the approximate number of examinations performed. Used well, those numbers can neutralize a defense physician who has examined hundreds of plaintiffs and found almost all of them uninjured.

Honesty about history: the biggest risk in the case

The most common way a pre-existing condition destroys a claim is not through the medicine. It is through non-disclosure.

In interrogatories, at deposition, at the CME, and in intake forms at every new doctor’s office, an injured person will be asked about prior injuries, prior accidents, and prior treatment of the same body part. A plaintiff who denies or minimizes prior treatment, and is then confronted with the chiropractic records, the old emergency room visit, or the earlier claim, has handed the defense its best argument: that the plaintiff’s account of the injury cannot be trusted.

In serious cases, it can be worse than a credibility problem. Florida courts have the inherent power to dismiss a case for fraud on the court when a party has sentiently set in motion an unconscionable scheme to interfere with the court’s ability to decide the case impartially, a standard articulated in Cox v. Burke, 706 So. 2d 43 (Fla. 5th DCA 1998). Courts apply the remedy cautiously, distinguishing intentional concealment from forgetfulness or inconsistencies that can be addressed on cross-examination, but cases have been dismissed outright when a plaintiff deliberately hid prior injuries to the same body part.

Our advice to clients is the same in every case: tell us everything, including the things that seem embarrassing or irrelevant, before anyone else asks. A prior injury that is disclosed early and explained by the medical evidence is usually manageable. A prior injury that is discovered by the defense rarely is.

Auto cases: PIP, the permanency threshold, and aggravation

In Florida motor vehicle cases, a pre-existing condition intersects with the no-fault system in two ways.

PIP benefits. Personal injury protection pays a portion of medical expenses and lost wages regardless of fault, subject to the rules in Fla. Stat. § 627.736, including the requirement to seek initial treatment within 14 days and the distinction between the full $10,000 benefit for an emergency medical condition and the $2,500 limit otherwise. PIP insurers may also request their own examinations, and may dispute treatment they contend is related to a prior condition rather than the crash.

The tort threshold. Under Fla. Stat. § 627.737(2), a plaintiff in an auto case may recover damages for pain, suffering, mental anguish, and inconvenience only by proving a qualifying injury, most often a permanent injury within a reasonable degree of medical probability. A permanent aggravation of a pre-existing condition can satisfy that threshold, but the treating physician’s opinion has to address it specifically: not merely that the plaintiff has a permanent condition, but that the crash permanently worsened it. A physician who testifies only that the plaintiff “has degenerative disc disease, which is permanent” has, from the defense’s perspective, testified that the permanent condition predated the accident.

Our guide to car accident claims in Florida explains PIP and the threshold in more detail.

Medical damages after 2023

For cases filed after March 24, 2023, Fla. Stat. § 768.0427 changed the evidence a jury may hear about medical expenses. Past medical bills that have been paid are generally limited to the amounts actually paid. Unpaid bills, and future medical expenses, are generally measured by reference to what health insurance or Medicare would pay, depending on the plaintiff’s coverage, rather than the full billed amount. The statute also requires disclosure of letters of protection and of whether the plaintiff was referred by their lawyer to a treating provider, effectively abrogating the protection the Florida Supreme Court had recognized in Worley v. Central Florida YMCA, 228 So. 3d 18 (Fla. 2017).

Those rules matter especially in pre-existing condition cases, because the defense’s causation argument and its billing argument tend to reinforce each other. A plaintiff with a prior condition who treats exclusively under letters of protection with providers referred by counsel, and whose bills are far above market rates, gives the defense a ready narrative: the treatment was driven by the lawsuit, not by a new injury. Treatment through the plaintiff’s own health insurance, with the plaintiff’s own physicians, where possible, often makes the causation case stronger as well as cleaner. Our guide to settlement liens and medical bills explains how those payments are repaid out of a recovery.

Comparative fault, and why the condition is not “fault”

Defense lawyers sometimes blur two separate ideas: the plaintiff’s pre-existing condition and the plaintiff’s comparative fault. They are different.

Under Fla. Stat. § 768.81(6), a plaintiff found more than 50 percent at fault for the accident recovers nothing in most negligence cases, and a plaintiff found less at fault has damages reduced by their percentage. That is about the plaintiff’s conduct in causing the accident.

A pre-existing condition is not conduct. Having a degenerative spine is not negligence, and it may not be counted as fault. The condition affects damages, through the aggravation instruction and the apportionment question, not liability. The one area where the plaintiff’s own conduct after the injury can matter is the duty to mitigate damages: an injured person who unreasonably refuses recommended treatment, or ignores medical advice, may face an argument that part of the damages was avoidable.

How we build an aggravation case

Every case is different, but the pre-existing condition cases that are paid fairly tend to share the same evidence.

A complete medical history, gathered first. We obtain the plaintiff’s prior records ourselves, including primary care, chiropractic, orthopedic, emergency room, and imaging, so that there are no surprises and so the treating physicians see the whole picture before they give opinions.
Prior imaging, compared side by side. If an earlier MRI or X-ray exists, we get the actual images, not just the report, and ask a qualified radiologist or the treating surgeon to compare them.
A clear baseline. The best evidence of what the plaintiff was like before the injury often comes from outside the medical records: employment and attendance records, gym or league records, photographs and videos, and the testimony of coworkers, friends, and family who saw the person every day. Jurors respond to “before and after” witnesses who have nothing to gain.
A treating physician who addresses causation directly. The key opinion is not “the plaintiff is injured.” It is that the accident caused a new injury, or aggravated or activated a pre-existing condition, and that the aggravation is permanent, with reasons. Where the physician cannot separate the old from the new, the physician should say so, because that testimony triggers the jury’s instruction to award damages for the entire condition.
Consistency. The history the plaintiff gives to every provider, in interrogatories, at deposition, and at the CME should match. Our guide to the plaintiff’s deposition explains how prior medical history comes up there.
Discovery of the defense examiner. Prior reports, testimony history, and the financial relationship between the examiner and defense firms or insurers.
Valuation that accounts for the defense. A settlement demand or mediation presentation that ignores the pre-existing condition will be discounted. One that confronts it, with the comparison imaging, the baseline witnesses, and the physician’s apportionment opinion, gives the adjuster a reason to pay. Our guide to mediation in a Florida injury case explains how insurers set their numbers.

Back to the warehouse supervisor

Return to the supervisor rear-ended on Sunrise Boulevard. The insurer’s position is that the MRI shows degeneration and he saw a chiropractor in 2021.

The case looks different after the work is done. The 2021 chiropractic records describe low back stiffness without leg symptoms, six visits, and discharge with “full resolution.” His employer’s records show no missed days for three years and a promotion that required lifting. His wife, his foreman, and the coach of the softball league he played in describe a man who did not complain about his back. An X-ray from 2021, located in an urgent care archive, shows mild degenerative changes and no evidence of the disc herniation and nerve root compression that appear on the post-crash MRI. His surgeon testifies that the crash caused an acute herniation at L4-5 superimposed on pre-existing degeneration, that the herniation explains the leg symptoms, and that the need for surgery is related to the crash. Asked how much of his current condition is attributable to the degeneration, the surgeon says it cannot be separated with any medical precision.

The defense CME physician will still say “degenerative.” But the jury will be instructed that if it cannot determine what portion of the condition resulted from the aggravation, it should award damages for the entire condition. That instruction, and the evidence behind it, is what moves the insurer.

Frequently asked questions

Can I still bring an injury claim if I had a pre-existing condition? Yes. Florida law makes a negligent party responsible for aggravating or activating a pre-existing condition. The defendant is not responsible for the condition you already had, but it is responsible for the harm it added, and if the jury cannot separate the two, it is instructed to award damages for the entire condition.

The insurance company says my injury is “degenerative.” Does that end my claim? No. Degenerative findings on MRIs are extremely common in people with no pain at all, and their presence does not show that you had symptoms, needed treatment, or were limited before the accident. The question is what changed, and that is proved through your history, your function before and after, your physicians’ opinions, and, where available, comparison imaging.

Should I tell my lawyer and my doctors about old injuries, even minor ones? Yes, always. The defense will almost certainly find prior treatment and prior claims. A prior injury that is disclosed and explained is usually manageable. One that is concealed can destroy your credibility, and in serious cases can lead to dismissal of the case.

What if I was hurt in an earlier accident and already settled that claim? That does not bar a claim for a new injury or a new aggravation. The defense will argue that part of your condition was already compensated, so the evidence of your recovery after the first accident, and the condition you were in before the second, becomes important.

Do I have to attend the defense medical examination? If the defense properly requests it under Rule 1.360 or the court orders it, generally yes, subject to the conditions set by the rule, the court’s order, and local practice. You are usually entitled to have your attorney or a representative present, and often a videographer. Talk to your lawyer before the examination about what to expect.

If surgery makes my condition worse, is that part of my claim? Generally, yes. Under Florida law, the person responsible for your original injury is also responsible for additional harm caused by medical treatment you reasonably sought for it, even if the treatment was negligent.

How long do I have to file? For most Florida negligence claims arising after March 24, 2023, the deadline is two years, with shorter notice deadlines for claims against government entities. Our guide to Florida’s personal injury statute of limitations explains the exceptions.

Talk to a Florida personal injury attorney about a pre-existing condition

Pre-existing condition cases are won or lost on preparation: the prior records, the comparison imaging, the baseline witnesses, and a treating physician who can explain to a jury what changed and why. They are also the cases in which insurers most often make low offers, because they expect the “degenerative” label to do their work for them. KWBR’s auto accident, premises liability, and wrongful death practices handle these claims from our Orlando, Fort Lauderdale, and Boca Raton offices. If an insurer has told you your injury was “already there,” contact us before you accept that answer.

This article is for general informational purposes and is not legal advice. Florida’s standard jury instructions, procedural rules, and local orders governing medical examinations change from time to time, and every case depends on its medical evidence; consult a qualified Florida attorney about your situation.

Pre-Existing Conditions in a Florida Injury Case: Degenerative Discs, Old Injuries, and Why "It Was Already There" Is Not the End of the Claim