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You Had a Pre-Existing Condition. The Insurance Company Is Already Using It Against You.

You already knew your spine was not the same as everyone else’s…

Maybe you had surgery years ago. A fusion that changed how you carry yourself, how you sleep, how you get through the day. Maybe you had been managing a degenerative condition for so long that it became just another part of your life something you worked around, something you adapted to, something that was yours to manage and nobody else’s business.

And then someone else’s negligence made it everyone’s business.

A car crash. A rear end collision. A moment that lasted two seconds and permanently changed the trajectory of a body that was already fighting to stay functional. And now, in the middle of trying to understand what happened to you medically, you are also being told by an insurance adjuster directly or by implication that your injuries are not their problem because you were already hurt.

We need you to hear something clearly.

That is not the law. And it is not going to work on us.

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The Eggshell Plaintiff — What It Means and Why It Matters for Your Case

There is a legal doctrine that has existed in American courts for over a century. It is called the eggshell plaintiff rule, sometimes called the thin skull rule. And it is one of the most powerful protections available to injured people with pre-existing medical conditions.

The eggshell plaintiff rule holds that a defendant the person or entity whose negligence caused your injury — must take you as they find you. They do not get to choose a healthier version of you to be responsible for. They do not get to argue that a person without a pre-existing spine condition would have walked away from the same accident with minor injuries. They are responsible for the full extent of what their negligence did to you — even if that is far more severe than it would have been for someone else.

The name comes from the image of a person whose skull is as fragile as an eggshell. If a negligent driver hits that person and the impact causes a catastrophic injury that would not have occurred in a person with a normal skull, the driver is fully liable for the catastrophic injury. The fragility of the victim does not reduce the responsibility of the person who caused the harm.

For someone with a pre-existing spinal condition — a fusion, degenerative disc disease, spinal stenosis, prior trauma — this doctrine is everything. It is the legal foundation on which a serious case is built. And it is a doctrine that the attorneys at Cohn & Swartzon LLP know in precise, granular, case-tested detail.

What the Insurance Company Is Going to Say — and How We Are Already Prepared for It

We want to be direct with you about something that will happen in your case if it has not already started.

The insurance company representing the driver who hit you has a strategy. It is not a secret strategy. It is the same strategy that has been used in pre-existing condition cases for decades, and every attorney at Cohn & Swartzon LLP has seen it executed in discovery, in deposition, and in courtrooms across California.

Here is exactly how it goes.

They will pull your entire medical history.

Not just the records related to your spine. All of them. They will send a broad medical authorization request and hope you sign it without understanding what you are giving them access to. They will look for every prior treatment, every prior complaint, every prior diagnosis, and every prior imaging result that predates the accident.

They will argue your injuries are pre-existing.

Their experts will look at your MRI, your surgical history, and your treatment records and argue that what you are experiencing now is simply a continuation of what was already happening before the accident. They will try to draw a line from your prior condition directly to your current symptoms and claim the accident was not the cause — or at most an aggravation that does not warrant the compensation you are seeking.

They will minimize the aggravation.

Even when they cannot deny that the accident made things worse, they will argue that the aggravation was minor, temporary, and already resolved. They will hire medical experts who will testify that your recovery should have been faster, that your treatment was excessive, and that the ongoing symptoms you are experiencing are not attributable to the crash.

They will use your own words against you.

Anything you said to the other driver at the scene. Anything you said to the insurance adjuster in that first phone call they made while you were still in shock. Any social media post. Any prior deposition or recorded statement from a previous claim. They will build a file from everything available and use it to paint a picture of someone whose injuries existed before the crash and are being exaggerated now.

We know this playbook because we have spent decades on both sides of it. Founding Partner Oz Tannenbaum spent nearly a decade as a defense attorney before crossing the table to fight for plaintiffs. He built these strategies. He knows them from the inside. And he now uses that knowledge entirely in the opposite direction.

What We Know That Changes Everything

The defense’s approach to pre-existing condition cases is designed to exploit one thing — a plaintiff who does not have an attorney who understands how to counter it.

Here is what we bring to every pre-existing condition case at Cohn & Swartzon LLP.

We know the medical distinction that matters most — aggravation.

California law recognizes that when an accident aggravates a pre-existing condition, the defendant is fully responsible for that aggravation. Aggravation means the accident made an existing condition worse. The defense will try to collapse everything into a single narrative of a minor bump to a person who was already struggling. We build the medical and legal case that shows precisely what the accident did, how it changed the trajectory of your condition, and what that change costs you in human and financial terms.

We know how to limit what they access.

A blanket medical authorization gives the insurance company a weapon. We do not let you sign one. We review every authorization before it goes anywhere, we limit the scope to records relevant to the injuries at issue, and we protect your medical privacy while ensuring the documentation that supports your claim is front and center.

We know which medical experts tell the truth about pre-existing conditions.

The defense will hire experts to minimize. We work with neurologists, spine specialists, orthopedic surgeons, pain management physicians, and radiologists who can read your imaging, review your surgical history, and explain in precise clinical terms exactly what the accident did to a spine that was already compromised. The right expert does not just support your case. They make the defense’s expert look like what they are — a hired voice paid to minimize your reality.

We know how to tell your story to a jury.

A jury is made up of human beings who understand that people have medical histories. They understand that a person who has already had spinal surgery and is managing chronic pain is not a fraud when they say the accident made everything worse. What they need is someone who can connect the before and the after in a way that is clear, honest, and undeniable. That is what our attorneys do in every pre-existing condition case we take to trial.

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The Attorneys Who Will Fight for You

At Cohn & Swartzon LLP every attorney who handles your case brings a specific dimension of experience to the defense strategy you are about to face.

Saar Swartzon — Founder and Partner

Saar has been representing seriously injured Californians for over 20 years. In 2004 he was part of the trial team that secured a $36 million verdict in a mesothelioma case — the 48th largest asbestos verdict in the United States that year. That case, like every serious pre-existing condition case, required building an airtight connection between a prior medical history and a catastrophic outcome caused by another’s negligence. Saar holds an AV Preeminent rating from Martindale Hubbell, has been named to the Super Lawyers list every year since 2014, and is a Lifetime Member of the Multi Million Dollar Advocates Forum.

What he brings to your case is 20 years of knowing exactly how insurance companies evaluate pre-existing condition claims — and 20 years of making sure those evaluations do not determine the outcome.

Jason D. Cohn — Founder and Partner

Jason opened his practice in 2003 in his late father’s office after working on the defense side and seeing firsthand how injured people with prior medical conditions were treated by the insurance system. He made a promise that has governed every case he has taken since — no client of his would face that system without someone who understood it completely standing between them and the people trying to minimize their reality.

In nearly 30 years of personal injury litigation Jason has represented hundreds of clients with pre-existing conditions across every practice area — car and truck accidents, catastrophic injuries, wrongful death, spinal cord injuries, traumatic brain injury. He holds an AV Preeminent rating from Martindale Hubbell, Super Lawyers recognition every year since 2014, and is a Lifetime Member of both the Million Dollar Advocates Forum and the Multi Million Dollar Advocates Forum.

What he brings to your case is close to a 30 year career built on the conviction that the insurance company’s characterization of your prior medical history is not the final word. His is.

Oz Tannenbaum — Partner

Oz spent nearly ten years as a defense attorney before joining Cohn & Swartzon LLP in 2021. He evaluated pre-existing condition claims from the inside of the insurance defense machine. He built the strategies designed to minimize what insurers paid to people whose injuries were complicated by prior medical history. He knows precisely which records adjusters flag, which experts they hire, which questions they train adjusters to ask in early recorded statements, and which gaps in medical documentation they exploit.

He now uses every piece of that knowledge for the people on the other side of those cases.

Oz holds Super Lawyers recognition from 2022 through 2026. His finance background from Cal Poly Pomona gives him a specific advantage in calculating and defending the complex economic damages that serious spinal injury cases require — future medical costs, lost earning capacity, life care planning, and the long term financial impact of a condition that has been permanently altered by someone else’s negligence.

Anson Bui — Senior Trial Attorney

Anson spent his early career in insurance defense before committing fully to plaintiff work. He has conducted over 600 depositions, been named Trial Attorney of the Year in 2022, and is a member of ABOTA — the American Board of Trial Advocates, one of the most selective trial attorney organizations in the country. He is fluent in Vietnamese and serves a significant portion of Orange County’s Vietnamese speaking community who often face compounded challenges when navigating the personal injury system with a pre-existing condition and a language barrier simultaneously.

Anson’s deposition experience is particularly significant in pre-existing condition cases. Defense medical experts are deposed. Prior treating physicians are deposed. Adjusters can be deposed. Over 600 depositions means Anson knows exactly how to expose the weaknesses in a defense expert’s opinion and how to protect your own medical providers from being used against you.

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What You Should Not Do — Starting Right Now

If you have a pre-existing spinal condition and you have been in a car accident, the decisions you make in the next hours, days, and weeks can significantly affect the outcome of your case. Here is what every attorney at Cohn & Swartzon LLP would tell you to do immediately.

Do not give a recorded statement to the insurance company. They will ask about your prior medical history, your prior symptoms, and your current condition. Anything you say will be in a file used to minimize your claim. You are not legally required to give them a recorded statement. Do not do it before speaking with an attorney.

Do not sign a blanket medical authorization. If you receive paperwork from the insurance company asking for access to your medical records, do not sign it. Call us first. If we are retained to represent you, we will review every authorization before anything goes anywhere.

Do not delay medical treatment. A gap between your accident and your first post-accident medical visit is one of the most common and most damaging arguments the defense makes in pre-existing condition cases. See a doctor the same day. Tell them about the accident. Tell them about your prior spinal history. A complete and honest medical record that connects the accident to the change in your condition is the foundation of your entire case.

Do not assume your prior condition means you have no case. You very well may. California law protects you. The eggshell plaintiff doctrine exists precisely for people in your situation. The insurance company is counting on you not knowing that. Now you do.

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Our Commitment to Every Pre-Existing Condition Client

We have represented hundreds of injured Californians whose cases were complicated by prior medical histories. Spinal fusions. Degenerative disc disease. Prior surgeries. Chronic pain conditions. Prior accident claims. Every variation of medical history that the defense has tried to use as a reason to pay less.

Every single one of those clients deserved a fair fight. Every single one of them had their reality taken seriously by the attorneys who handled their case. And every single one of them had direct attorney access from the first call through the resolution of their case — not a case manager, not a coordinator, an attorney who knew their name and their history and was personally accountable for the outcome.

That is what you get at Cohn & Swartzon LLP.

Your pre-existing condition is not a disqualification. It is a complexity. And complexity is exactly what our attorneys are built to handle.

The consultation is free. You speak directly with an attorney. There are no upfront fees and no fee unless we recover for you. Our team is available by phone 24 hours a day 7 days a week. Services are available in English and Spanish.

Call us at 888-480-3883.

Your job is to recover. Our job is to get you justice.

Cohn & Swartzon LLP | legalhelp123.com | 2 Park Plaza, Suite 1050, Irvine, CA 92614 | 131 East Kern Ave, Suite H, Tulare, CA 93274

This article has been reviewed for accuracy by Founding Partner Saar Swartzon, Founding Partner Jason D. Cohn, Partner Oz Tannenbaum, and Senior Trial Attorney Anson Bui of Cohn & Swartzon LLP. The information provided is intended for educational purposes and reflects California personal injury law as of the publication date. Because every case is unique, this article should not be considered formal legal advice for any specific situation.