In both categories, insurance companies often claim that they are not responsible for paying the damages claimed. They argue they are only liable for the damages their policyholder caused from the date of the tort forward — if there was a new injury at all.
These cases often go to trial. The judge decides whether an eggshell plaintiff or preexisting injury instruction should be given to the jury. It hears evidence about prior conditions and decides damages.
There can be legal road blocks. In every negligence claim, the plaintiff must convince the judge or jury of certain elements. One is that the defendant’s breach of the duty they owed caused their injuries. Another is that this breach is the proximate cause of their losses.
The plaintiff will need documentation from an accident reconstruction expert and doctors. Magnetic resonance images may show that they need major surgery to repair discs in their spinal column. Or they may have injured discs but at a different levels and places.
The personal injury lawyer will obtain your complete medical files and diagnostic films, not just since the crash date, but for the five to ten years before it happened. They can prove that the plaintiff had no previous injury or that it is a different one.
Texas trial law is adding a new instruction
The 2020 Texas Pattern Jury Charges that may be published next month will apparently revise the instructions substantially. We will revise this post when the PJC is published.
Please contact our office if you have any questions.