Monday, July 21, 2008

The "Feterle" Gambit: The Pre-Existing Condition Myth

Columbus, Ohio. As an attorney who deals primarily with injuries arising from car accidents, I am often asked about the effect of previously existing conditions which were made worse by the accident. "I hurt my back years ago and now I hurt it again in the accident, do I have any rights?"

Many believe that these pre-existing conditions will prevent them from having a successful conclusion to their injury claim. In many cases, the presence of a [for example] prior back or neck injury explains why the injury occurred in the accident and why the injury takes longer to heal than for a "normal" person. One of the best questions to ask any lawyer you are considering for representation is if they are aware of the Feterle case decided many years ago by the Ohio Supreme Court. This case, who language I try to use quite often at trial, stands for the following legal proposition:

"The Defendant takes the plaintiff as he finds her. As a result, the Defendant is liable for the actual injury and damage suffered by Plaintiff directly resulting from the negligence of the Defendant. For example, if Plaintiff had a predisposition which made her more susceptible to injury; nevertheless, the Defendant is liable for the actual injury and actual lack of recovery which Plaintiff suffered as a direct result of the negligence. It is no defense that some other person of greater strength, or constitution, or emotional makeup might have been injured less, or injured differently, or recovered faster or better. " Feterle v. Huettner (1971), 28 Ohio St.2d 54.

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