Pre-Existing Conditions: The Defendant Takes You as He Finds You

“Our review of your records shows this was a pre-existing condition.” It is the most common reason insurers give for a low offer, and it works because it sounds like a fact. Usually it is half of one. You probably did have some arthritis, an old shoulder problem, or a few chiropractor visits years ago. Most adults do. The question the law asks is different: what did this crash change? This page sets out the Nebraska rules, in the courts’ own words, and explains how these cases are won and lost.

Can I Recover If I Had a Pre-Existing Condition?

Yes. The rule Nebraska juries are given, as quoted by the Nebraska Supreme Court, has two parts:

• “There is evidence that the plaintiff had pre-existing back and joint conditions prior to the date of the accident. The defendant is liable only for any damages found to be proximately caused by the accident.”
• “If you cannot separate damages caused by the preexisting conditions from those caused by the accident, then the defendant is liable for all of those damages.”

The first sentence protects the defendant from paying for problems the crash did not cause. The second protects you when, as often happens, no doctor can draw a clean line between the old and the new. In Ketteler v. Daniel, 251 Neb. 287 (1996), a woman with long-standing fibromyalgia and prior neck and back problems was hit by a driver who ran a stop sign in Norfolk. The trial judge gave the jury only the first sentence. The Supreme Court ordered a new trial on damages because the second had been left out, along with a third the plaintiff had asked for: “The Defendant may be liable for bodily harm … even though the injury is greater than usual due to the physical condition which predisposed [her] to the injury. In short, the Defendant takes the Plaintiff as he finds her.”

The Four Situations, and the Rule for Each

Who Has to Separate the Old Injury From the New One?

The defendant. This is the most important practical rule on the page, and insurers rarely mention it. The Nebraska Supreme Court has said: “Once the plaintiff presents evidence from which a jury reasonably can find that damages were proximately caused by the tortious act, the burden of apportioning damages resulting from the tort rests squarely on the defendant.”

In Higginbotham v. Sukup, 15 Neb. App. 821 (2007), a woman with neck stiffness going back years and a degenerative disc was rear-ended. The defense argued her problems were old. The Court of Appeals reversed the judgment because the jury had not been told what to do if it could not separate the two. When an adjuster says “some of this was pre-existing, so we are paying half,” ask what medical evidence supports the half. Nebraska’s unfair claims practices statute lists, as an unfair practice, failing “to promptly provide a reasonable and accurate explanation of the basis” for a compromise offer.

A Condition You Did Not Know You Had

Imaging after a crash often turns up findings the patient never knew about: degenerative discs, arthritis, an old tear. Research on people with no back pain at all shows how common that is; in one large review, disc degeneration appeared on the scans of 80 percent of pain-free 50-year-olds. A finding on a scan is not the same as a disability.

Nebraska courts have dealt with this repeatedly. In Laun v. Roach, 191 Neb. 11 (1973), a dental student who was rear-ended turned out to have a curvature of the spine and a slipped disc that pre-dated the collision. His orthopedist testified that he “could very likely have experienced no pain prior to the accident even with these preexisting conditions,” and “that the accident would have aggravated the back condition to the point of becoming symptomatic.” His claim, including lost earning capacity, went to the jury. A Nebraska jury instruction used in such cases has told jurors that if a person “had a bodily condition which was not causing disability or pain, and that this pre-existing condition was activated or ‘lighted up’ by this accident, then, the plaintiff is entitled to recover for the whole of such result proximately caused by the accident.”

Where These Claims Are Lost

The rules above are favorable. They are not automatic, and Nebraska’s reported cases show exactly how plaintiffs lose.

No doctor says the crash aggravated it

In Renne v. Moser, 241 Neb. 623 (1992), a woman rear-ended in Lincoln had prior arm and shoulder symptoms. Her doctor “did not express the opinion that the automobile accident aggravated whatever may have been [her] preexisting condition.” Without that opinion, the Supreme Court held, she was “not entitled to an instruction on aggravation of a preexisting condition” at all. The aggravation rule is triggered by medical testimony, not by the patient’s own belief.

The jury decides the crash did not cause the problem

In Golnick v. Callender, 290 Neb. 395 (2015), the other driver admitted negligence in a head-on collision. The injured man was 71, had spinal stenosis, and was in a second crash two years later. The jury returned a verdict for the defendant anyway, and the Supreme Court affirmed, presuming the jury had agreed that the first accident “had not caused” his injuries. In another case, the court upheld a defense verdict where the plaintiff’s experts relied “primarily on his subjective complaints of pain” and there was “evidence of a preexisting injury to the plaintiff’s lower back and conflicting expert testimony.” Admitted fault is not admitted injury.

The history was not disclosed

This is the one you control. In Renne, the prior history had not been disclosed to the treating doctor, who conceded on the stand that if she had similar complaints before, “I would assume that she had some of the problems … ahead” of the accident. In Higginbotham, the doctor “conceded that [she] had not told him about her prior neck pain” and that “all of her current neck pain may not be related to her motor vehicle accident.” A doctor who learns your history for the first time under cross-examination will back away from his own opinion, in front of the jury. And the jury “alone is the sole judge of the credibility of the witnesses.”

The insurer will find the history. Tell your doctors and your lawyer first.

How the Insurer Builds a Pre-Existing Condition Defense

• The recorded statement. “Any prior problems with your neck or back?” is asked early, before you have thought about a visit from six years ago. See recorded statements.
• The blanket medical authorization. A form that reaches every provider you have ever seen. Before a lawsuit, you decide what to sign.
• Discovery of your records. Once a suit is filed, the standard is broad: parties “may obtain discovery regarding any nonprivileged matter that is relevant to the subject matter involved in the pending action” (Neb. Ct. R. Disc. § 6-326). When you claim an injury to a part of your body, the earlier records for that part of your body will be produced. A court can limit requests whose “burden or expense … outweighs its likely benefit,” which is how unrelated records are kept out.
• The defense medical examination. A court may order an examination by a doctor the defense selects, “only on motion for good cause” (§ 6-335). That doctor’s report usually attributes the problem to degeneration. You may obtain the report; be aware that asking for it entitles the other side to “like reports of all earlier or later examinations of the same condition” from you.
• Your own words in other claims. In Golnick, the court admitted the pleadings from the plaintiff’s lawsuit over his later crash. What is said about one accident can be read to the jury in the case about another.

Two Accidents Close Together

Sometimes the “pre-existing condition” is another crash. A person is hit, is still treating, and is hit again. Each insurer then blames the other collision. I have handled this: a client was injured in two separate collisions in Omaha within a month of each other and needed surgery on her shoulders, and causation was fought as a pre-existing condition. That matter settled for $365,000 in September 2026.

Nebraska law on this situation is less developed than you might expect. I have found no Nebraska appellate decision that squarely divides damages between two separate crashes. The principles that apply are the ones above: each defendant is liable for the harm its driver caused, the burden of apportionment falls on the defendants once you have shown causation, and where “two causes produce a single indivisible injury, joint and several liability attaches.” What it requires in practice is careful medical documentation of your condition between the two events, and consistency in what is claimed against each driver.

How to Protect a Claim When You Have a Prior Condition

• Tell every provider your full history at the first visit after the crash: prior injuries, prior treatment, prior claims. Then describe what is different now.
• Be specific about before and after. “My back was stiff some mornings but I worked full time and coached; now I cannot sit for an hour” is evidence. “It is worse” is not.
• Gather the proof of how you were functioning before: work attendance, gym or league records, photographs, people who saw you every day. If you had not treated for the condition in years, the absence of records is itself proof.
• Ask your doctor the question the law asks: did this collision cause or aggravate the condition, and can the prior condition be separated from the aggravation?
• Do not give the other insurer a statement or a blanket authorization.
• Do not settle on the insurer’s apportionment. See should I accept the first settlement offer.

The injuries where this defense appears most often are covered on their own pages: herniated disc injuries and whiplash, neck and back injuries. The same issue arises in a different form in workers’ compensation; see pre-existing conditions in a workers’ compensation claim.

Cases and court rules quoted on this page were read at their sources on October 3, 2026. Past results do not guarantee a similar outcome; every case is different. This page is general information, not legal advice about your situation.

Your Attorney

Frank Younes

Every page on this site is written by Frank Younes, a Nebraska trial attorney with a published record of verdicts and settlements, selection to the National Trial Lawyers Top 100, and a practice that covers every county in Nebraska and Iowa. No case is handed to an associate — the lawyer you read here is the lawyer who works your case.

More about Frank → · Free consultation: (402) 378-9208

Frequently Asked Questions

Can I still get a settlement if I had a pre-existing condition?

Yes. The at-fault driver is liable for the harm the crash caused, including aggravating a condition you already had.

What if the doctors cannot tell how much is old and how much is new?

Then, under the instruction Nebraska juries are given, the defendant is liable for all of those damages. The burden of separating them is on the defendant.

What if my condition was not causing any symptoms before the crash?

You may recover for the whole result if the collision made a painless condition symptomatic.

What do I have to prove?

A medical opinion that the collision caused or aggravated the condition. Without it, the aggravation rule does not apply.

Should I tell my doctor and the insurance company about my prior injuries?

Tell your doctors and your lawyer everything. Do not give the other driver’s insurer a recorded statement or a blanket authorization, but never conceal the history; it will be found.

Can the insurance company get my old medical records?

In a lawsuit, records relevant to the injured part of your body are discoverable. Before a lawsuit, you decide what authorization to sign.

What if I was in two accidents close together?

Each driver is liable for the harm he or she caused, and the burden of dividing the damages falls on the defendants. Careful medical records between the two events are essential.