Legal MDs Consulting Response:
Shoulder injuries, particularly rotator cuff tears, are among the most common injuries we see in slip-and-fall cases, yet they are also among the most frequently contested by defense counsel and insurance adjusters. The typical defense argument is that rotator cuff pathology is degenerative and age-related, not traumatic. While it is true that rotator cuff degeneration is common, the medical literature provides robust evidence that trauma can cause acute tears or convert asymptomatic partial tears into symptomatic full-thickness tears.
Sher et al. published a frequently cited study in the Journal of Bone and Joint Surgery (1995, Volume 77-A, Issue 1, pages 10–15) demonstrating that asymptomatic rotator cuff tears were present on MRI in 34% of subjects, with prevalence increasing with age. This study is commonly misused by defense experts to argue that any rotator cuff tear in a middle-aged or older plaintiff must be degenerative. However, Sher’s data actually supports the plaintiff’s position in many cases: a previously asymptomatic tear that becomes symptomatic after a documented fall is, by definition, a trauma-related exacerbation.
Mall et al. in the Journal of Shoulder and Elbow Surgery (2013, Volume 22, Issue 12, pages 1633–1639) studied the progression of asymptomatic rotator cuff tears and found that a significant percentage of initially asymptomatic tears became symptomatic over time. The authors noted that when a specific traumatic event converts an asymptomatic tear to a symptomatic one, the trauma is medically regarded as a causative factor in the clinical presentation.
The legal framework supports this approach. Under the aggravation doctrine, which is well-established in tort law, a defendant is liable for the aggravation of a pre-existing condition even if the condition would not have caused symptoms in the absence of the tortious conduct. In Steinhauser v. Hertz Corp., 421 F.2d 1169 (2d Cir. 1970), the court held that the defendant was responsible for the full extent of the plaintiff’s injuries, including the aggravation of a latent pre-existing condition.
In a recent case, we reviewed the records of a 61-year-old woman who fell on a wet floor in a grocery store and was subsequently diagnosed with a full-thickness supraspinatus tear requiring surgical repair. The defense retained an orthopedic IME examiner who opined the tear was degenerative based solely on the plaintiff’s age. We reviewed the pre-accident medical records and found no prior shoulder complaints, no prior imaging, and no functional limitations. We cited the Sher and Mall studies to establish that while degenerative changes are common, the absence of prior symptoms combined with the documented mechanism of injury — a fall on an outstretched hand — was consistent with an acute traumatic event converting a previously asymptomatic condition into one requiring surgery.
Our physician consultants can help you evaluate whether a shoulder injury is genuinely acute, an acute-on-chronic exacerbation, or a pre-existing symptomatic condition. This distinction is crucial because each category carries different implications for damages, future medical care, and case value.
References
Sher JS, Uribe JW, Posada A, et al. “Abnormal findings on magnetic resonance images of asymptomatic shoulders.” Journal of Bone and Joint Surgery. 1995;77-A(1):10-15.
Mall NA, Kim HM, Keener JD, et al. “Symptomatic progression of asymptomatic rotator cuff tears.” Journal of Shoulder and Elbow Surgery. 2013;22(12):1633-1639.
Steinhauser v. Hertz Corp., 421 F.2d 1169 (2d Cir. 1970).
This situation is another example of how we can assist you with all the medical issues in your cases. Call (954) 649-5739 or email DrC@legalmds.com to schedule a time to talk about one of your cases.
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