Elderly people often suffer from what is often termed as “pre-existing medical conditions”. The one I encounter most frequently is arthritis. The cases I see involve significant worsening of an arthritic condition resulting in disability, reduced quality of life and the need for surgery. Are you entitled to recover for damages in a personal injury accident when a pre-existing medical condition is exacerbated or worsened?  Absolutely!

The Egg Shell Theory

Under Massachusetts law, if the conduct of a negligent party contributes to cause an ultimate outcome, then that party is responsible for the aggravation of that injury.  Some Massachusetts lawyers refer to this concept as the “one percent rule of causation”.  In other words, if the negligent act of a party plays some role in an injury, even if that role is slight (1%), that party is legally responsible for all damages which flow from the aggravation of the injury.  This standard would clearly be important to persons who live with a pre-existing medical condition, which is worsened as the result of the negligent conduct of another person.

This is also known as the Egg Shell Theory. This theory says that a negligent person takes his victim as he finds him, egg shell and all. The Massachusetts law of personal injury requires persons who are negligent to be liable for reasonably foreseeable injuries they cause. Court decisions have concluded causing an injury to a person with a pre-existing medical condition is reasonably foreseeable. Put another way, a negligent person, must take the injured person as he finds him. The egg shell theory holds a negligent person liable for all consequences resulting from his or her conduct resulting in an injury to another person, even if the victim suffers an unusually high level of damage. Let’s say someone is caused to fall his knees by the negligence of another person. Let’s also say that such a fall usually does not result in significant injury. However in this case the person who falls to his knees suffers from a pre-existing arthritic condition of his right knee. As a result of the trauma to his knees he can no longer use the right knee as he had previously and now needs knee replacement surgery to regain pain free use of his knee. This person is considered and “egg shell.”

Various Kinds of Pre-Existing Conditions

I handle many personal injury cases where a person suffers an injury due to the negligence of another. The diagnosed injury is to a body part that was already injured prior to the accident. Where the prior injury was exacerbated or developed pain symptoms after the accident, the injury can be compensated.

Many people who have pre-existing conditions learn to live with the discomfort associated with their conditions.  Others are pain or symptom free (this is especially true of backs) Others may live with a significant pain accompanied by loss of mobility or function. However, if a trauma worsens this condition to the point where, for example, a knee or hip replacement surgery is now necessary, then the injury is compensable. Although the law states that a negligent person is responsible for the cost of the surgery, rehabilitation, physical therapy, occupational therapy and continued medical care as well as  “pain and suffering damages” insurance companies are often reluctant to settle these cases. In fact insurance companies will try to avoid or minimize  responsibility to pay compensation for pre-existing conditions. They will claim that the injured person did not sustain injury in the accident, at all.

Therefore, ligation is often the only method by which to obtain reasonable compensation.

The bottom line is that any person who is injured due to the negligence of another, and who has a worsening of pre-existing medical condition, is entitled to recover compensatory damages directly related to the accident.

The legal treatment of preexisting conditions may differ depending on the State where you live.  Accordingly I have developed relationships with personal injury lawyers in other states to assist me with claims  that require the application of another State’s law.

It takes a good, aggressive personal injury lawyer, armed with knowledge and experience to get you what you deserve.

One way to pay for your care is a long-term care (LTC) insurance policy, which only pays for long-term care.  While the need for this type of care may be a long way off, you are usually encouraged to buy LTC insurance well before you’ll need to use it, because by doing so, premiums are generally less expensive and you are less likely to be turned down due to health conditions that may develop as you age.

Types of Policies

Several types of policies are available. The most common are “indemnity” or “expense incurred” policies. An indemnity or “per diem” policy pays up to a fixed benefit amount regardless of what you spend.  Under an expense-incurred policy, you select your benefit amount when you purchase the policy and are reimbursed for actual expenses for services received up to a fixed dollar amount per day, week, or month.

Some companies also offer “integrated” or “pooled benefits” policies.  This type of policy provides a total dollar amount that may be used for different types of long-term care services such as home health care or nursing home care. There is usually a daily, weekly, or monthly dollar limit for your covered long-term care expenses.

How Premiums are Determined

Your age at the time you purchase is a major factor in determining premiums—the younger you are when you first buy a policy, the lower your premium will be.  Before you can even purchase a policy, however, insurers will perform a health screening or “medical underwriting.”  People who already need long-term care are not insurable.  You will be required to sign a medical records release, and answer health questions on the policy application.  It is very important to disclose your information completely and accurately.  If you don’t, the insurance company may have a right to deny coverage when you file a claim.

Other factors that can determine the amount of your initial premium:

1. The type of policy you select.
2. The dollar amount of the daily benefit to be paid.  You may save money by selecting a lower daily benefit amount and paying the difference yourself.
3. Your benefit period.  Policies usually have a maximum number of years or maximum dollar amount they will pay.  The longer the benefit period, the more expensive your policy will be.
4. The number of days you wait before the insurer begins paying benefits after you qualify for them.  Known as the “elimination” or deductible period, you select the number of days you will pay for your own care before your policy begins paying benefits.  Common choices are 0, 30, 60 or 90-day elimination periods.  Keep in mind that care costs rise each year with inflation.  Be sure you can afford care for the duration of your deductible period now and in the future.
5. Inflation protection.  Inflation protection will either automatically increase the amount of your daily benefit, or allow you to periodically increase your benefit levels (for a higher premium) without providing evidence of insurability.
6. Nonforfeiture benefits.  This option allows you to retain some benefits if you decide to drop the policy at some point in the future.  The most common types of nonforfeiture benefits are either a “return of premium” benefit, which provides a cash benefit that is usually a percentage of premiums paid, or a “shortened benefit period” in which case coverage continues but the benefit period or amount is reduced.  These types of benefits can add anywhere from 20 to 100 percent to the premium cost.

Other Considerations

In addition to cost and benefit considerations, you should also carefully evaluate the company providing the policy.  Financial solvency ratings are available from several sources.  Try to choose a company that is likely to be around 15 or 20 years from now, when you’re likely to need your benefits.  Consider what your own financial situation may be that many years from now.  Although insurers must get permission from the state insurance commissioner to raise premiums for entire classes of policyholders, rates can and do increase, sometimes sharply.  Ask the insurance agent to provide you with the company’s rate increase history.

Above all, don’t be afraid to ask your insurance agent to thoroughly explain anything that isn’t clear.  You should also plan to review at least two or more policies to make a side-by-side comparison of your costs and options.  Lastly, be aware that even after you have purchased a policy, you generally have 30 days to return it and get a full refund of any premiums paid if you find it doesn’t meet your needs.

Although, it is crucial to plan for one’s illness, disability, potential long term care, protection and ultimate distribution of assets, the most ignored issue is providing for the care of the family pet.

As we age pets play an increasingly important role in our lives. Pets enrich older adults’ lives by helping them live longer, healthier and more enjoyable lives. Moreover, by amusing older adults pets avert feelings of loneliness and isolation. As such, elders often view and treat pets as members of the family.

First, let us understand that a pet is considered the property of an owner. Like any other property, provision must be made for the transfer of the pet after the death of the owner. If the owner fails to make his/her wishes known a dispute may arise. A probate process will ensue where State law will be imposed. Accordingly, trusts are an effective way to prevent conflicts, avoid the intervention of a probate court and carry out your specific wishes.

An estate plan for the pet avoids broken promises, misuse or misappropriation of funds intended for the care of a pet and/or mistreatment of the pet. A formal arrangement via power of attorney avoids questions in the event of illness, accident and family emergencies. The durable power of attorney designates an individual to intervene when the owner is incapacitated and unable to care for the pet.  Durable powers of attorney can be general or limited. It is advisable that the durable power of attorney be specific about what powers are being transferred to the Attorney in Fact. Otherwise this person has unlimited powers to sell the pet, place the pet in a shelter, have the pet “put down,” seek veterinary care, spay or neuter, etc.  Please note that powers of attorney are not effective in the event of death.

A Trust assures suitable care of a pet. At the same time it provides a method for monitoring that care. This trust is usually established by will, called a Testamentary Trust. It becomes effective on the death of the owner. Such a trust is usually funded with money at the testator’s death. The trust appoints a trustee to manage the funds and oversee the care of the pet(s) and provides guidelines for its care. As a fiduciary, the trustee has a legal obligation not misuse or abuse trust assets. This obligation extends to all beneficiaries (pets and ultimate beneficiaries).

The trust is limited to pets that were living during the testator’s lifetime. When the last of these animals dies, the trust terminates and any remaining funds will be distributed according to the terms of the will. Finally, if the pet pre-deceases the owner, the language creating the trust will be ignored.

Elder Law is a specialized field of law which addresses the issues faced by the elderly. It combines elements of Estate Planning, Wills and Trusts, Conservatorship, Guardianship, Health Care Planning, Medicare/Medicaid Planning, and Elder Rights. The basic purpose of elder law is to properly plan for your life in retirement (illness, disability, health care, residence, etc.) and your death. In so doing the benefits achieved are peace of mind, certainty in an uncertain world, maximizing asset protection and assuring distribution of assets in a pre-determined and a cost effective manner.

At Bahrawy Law Office, we provide you with the information and guidance you need to make effective decisions regarding the protection and distribution of your estate as well as probate avoidance. We explain your options and advise you on the estate planning tools that will best accomplish your goals.