Proving What Changed Without Hiding the Health History
Establish the actual baseline
Get the relevant earlier records. Find out whether the old diagnosis was still causing symptoms, requiring care or limiting daily activities. A diagnosis entered years ago can mean very different things for two patients. The name of the condition won't tell counsel how this person was functioning before the collision.
Tell your lawyer and treating providers about the earlier injury, even if you thought you had recovered. Describe what you were able to do before this crash and what you now struggle to do. You don't need to supply a medical explanation. Give the history accurately so a qualified provider can interpret it.
Describe the person's routine before the collision, including sleep, self-care and recreation as well as work. A patient may already have had pain but still have dressed without help and completed a full shift. Needing help afterward is a change that the records and witnesses may be able to establish. The old pain and the new assistance needs can both be true.
Build the postcrash chronology
Use dated records to build the medical timeline:
- Symptoms and the first medical evaluation.
- Testing, referrals and treatment.
- Improvement, setbacks and later incidents.
- Differences in the histories given to providers.
Raise any omitted material history promptly with the appropriate provider so it can be addressed accurately.
For a complicated condition, an expert may have to explain what a jury cannot decide from ordinary experience. Ask the physician how the collision mechanism fits the findings and the patient's history. Which other causes were considered? The fact that pain began afterward is part of the account, but may leave the difficult medical question unanswered.
Read the imaging report with the doctor. A reference to degeneration doesn't tell you, by itself, whether the crash made the condition worse. A disc finding doesn't necessarily date an injury either. The explanation has to account for the examination and symptoms, not stop with a word in the report.
Address later accidents directly
The later accident in JLG Trucking v. Garza could not simply be left out of the causation dispute. The Texas Supreme Court held that excluding the evidence was harmful error, with particular concern for the limits placed on questioning the plaintiff's expert. Counsel therefore needs to prepare the medical witness for the material later history, not just the first collision.
Consider a hypothetical patient who reports neck pain after a crash but has imaging only after another collision. Review the interval between the two events before attributing the findings. What symptoms were documented, and what changed after the second impact? A physician may be able to distinguish their effects or may identify limits in what can be determined.
Sort other possible causes by date, body part and symptoms, noting their relevance. Counsel can challenge unrelated medical-record requests on privacy or proportionality grounds, while providing the material history needed for legitimate causation review.
Explain treatment gaps honestly
Why was the appointment missed? Ask before offering an explanation. A patient may have improved, lost transportation or been unable to pay. There may be a message documenting the problem. Use the actual reason and supporting records, recognizing that an unexplained gap can matter to the case.
Follow medical advice for your health. More treatment isn't automatically better for a claim, and unnecessary procedures should not be pursued to increase its value. Tell the provider when you improve. You can document an injury and its effects without claiming that the effects will last forever.
Questions clients often ask
Does arthritis mean I cannot recover?
That diagnosis does not automatically end your claim. Counsel must examine the evidence of injury or aggravation from this crash, and the losses attributable to it.
Should I leave an old injury out of the intake?
No. Explain it to the lawyer and treating provider. If an expert works from a history missing a relevant injury, the resulting opinion may be vulnerable. A complete account gives the expert a chance to address the earlier condition instead of being surprised by it.
Does a billing affidavit prove the crash caused my injury?
No. An expense affidavit under section 18.001 does not establish that the crash caused the condition. Counsel still needs evidence connecting the claimed injury or aggravation to the event.
Medical causation is an explanation rather than a label
A scan shows anatomy. It may not tell the physician when a condition became painful or why. Review the findings with the symptom history and possible alternatives. Under Rule 702 and the causation decisions, counsel must examine the reasoning behind the opinion. Saying that symptoms came after the crash may not be enough for a condition outside ordinary understanding.
Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007), is relevant when deciding whether lay testimony will do. Some consequences are within a jury's ordinary experience. Other medical conditions require an expert to connect them to the accident. Counsel has to examine the injury and the record, rather than assume that a diagnosis is proved by its appearance after the crash.
JLG Trucking LLC v. Garza, 466 S.W.3d 157 (Tex. 2015), also shows why the later treatment records matter to expert preparation. Calling a subsequent collision minor without reviewing its records leaves an obvious question unanswered. The plaintiff still has to connect the claimed injury to the event sued on, and the expert must be prepared to explain the later event's relevance.
Establish a functional baseline before assigning damages
Ask how often the earlier symptoms occurred and what the patient did despite them. Compare work duties and ordinary activities with prescriptions, restrictions and treatment history. A person with degeneration may have been functioning well; someone with few recent appointments may nevertheless have been seriously limited. The file should establish which account the evidence supports.
Document the specific worsening, such as:
- More frequent pain.
- A new symptom distribution.
- Increased treatment.
- Reduced ability to work.
Ask the physician how much worse the condition became and how long that worsening is expected to last, where the evidence permits. Counsel must consider the instruction that keeps preexisting losses the defendant did not cause out of the damages award.
Obtain earlier images when the expert needs them, rather than relying exclusively on the report. A change in wording between reports may reflect technique, equipment, the reader or timing. It is for the qualified witness to explain whether the comparison has clinical significance. Staff and clients should not diagnose a new traumatic injury from different phrasing.
Evaluate treatment gaps with contemporaneous support
Go through the period without care with the patient. An improvement may have been followed by a recurrence; there may also have been trouble arranging an appointment. Obtain the clinic messages and other relevant records rather than pick the most convenient reason. Family or workplace observations can help, provided they are accurately described and evaluated.
Give any report of recovery to the medical witness before deposition. The entry may concern a single complaint or full recovery. If it conflicts with the claim, obtain the clinical explanation and prepare to address the conflict under questioning.
Medical care should be selected with a qualified provider. Counsel gathers the records and develops the legal case, but does not prescribe diagnoses or procedures. Obtain appropriate advice about persistent or new symptoms. No demand amount justifies care that the patient does not need.
Prepare the clinician for a focused examination
Supply the clinician with relevant earlier and later records and the collision information needed for the opinion. Identify the condition in dispute. Ask which records support the conclusion and what missing information might change it. The explanation should distinguish trauma, degeneration and other possible causes rather than merely repeat a requested causation phrase.
Apply the same scrutiny to a defense opinion. Did the witness examine the images, consider the patient's earlier function and explain why degeneration accounts for the present symptoms? A degenerative finding may be relevant without resolving aggravation. Test the reasoning and factual basis instead of dismissing the opinion solely because the defense retained the witness.
Find the precise point on which the specialists part company. They may agree that aggravation occurred but disagree over how long it lasted. Or the diagnosis may be accepted while its cause is disputed. Explain that difference to the client and describe it accurately in negotiations and at trial. A narrow disagreement should not be presented as a dispute over everything.
Hypothetical aggravation and later event
Consider this hypothetical warehouse employee:
- Before the crash: occasional neck discomfort, but full work duties.
- After a rear impact: arm symptoms and restrictions documented in the medical record.
- Three months later: a second collision.
The physician needs records from each period. Comparing the baseline, intervening care and later history helps test the cause of each change.
The medical evidence may support a new injury, aggravation or contribution from more than one event. It may also leave uncertainty. Explain those limits to the client and claim only supported damages. A trial chronology helps show the dates, but it cannot replace the expert's reasoning. Do not hide the second collision or ask the patient to guess its medical effects.
Ask the firm how it would obtain the relevant history and decide which expertise is needed. A supported explanation can answer an overly broad preexisting-condition defense without attributing unrelated losses to the defendant. It also gives the client a clearer assessment of the claim before deciding whether to settle.
Establish a complete medical chronology
Medical causation means the connection between the crash and the condition or aggravation for which compensation is sought. A treatment entry may establish a symptom or diagnosis while leaving that connection unresolved. Review onset and progression, the clinical findings and prior health, and the alternatives that could explain the condition.
A record-based chronology should include:
- Earlier complaints and the first visit after the crash.
- Examinations, diagnostic studies and prescriptions.
- Referrals, therapy or other treatment, and work restrictions.
- Later incidents and inconsistent histories needing follow-up.
Put a source beside each timeline entry. Use the client's account to investigate gaps, without replacing the documents or excluding adverse information.
Counsel should assess later collisions for both relevance and admissibility. JLG Trucking v. Garza involved harmful exclusion of a subsequent crash, including limits on questioning the plaintiff's expert. Providing the complete material history prepares the expert to address that issue. JLG Trucking LLC v Garza 466 SW3d 157 Tex 2015
Explain treatment gaps without manufacturing a story
Find the reason for an interruption in care before assessing its effect. It may involve improvement, work demands, transportation or insurance. An insurer questioning the interval is raising a factual issue that deserves an answer. The significance of the gap depends on the explanation and the evidence supporting it.
For a period without visits, look for reliable information from that period. A workplace restriction, pharmacy record or message to a provider may help. Family observations may also be relevant. Check the accounts for consistency instead of collecting only statements that favor the claim.
You don't need to use a medical term when telling your lawyer what has changed. Describe sitting, sleeping or completing a task in your own words. A provider can determine the clinical significance. Counsel should preserve the patient's account without supplying a diagnosis or telling the patient how to assign medical blame.
Keep accurate symptom and activity notes, including improvement. Ask counsel which records are useful. The provider, rather than the litigation, should guide treatment.
Develop future care from prognosis rather than possibility
Future care must be supported as reasonably likely because of the injury. Identify the proposed service and explain when, how often and for how long it will be needed, with a supported cost. A list of procedures that are merely possible cannot establish the whole projection. The medical basis needs to come first.
Ask the physician to separate:
- Care recommended now.
- Care expected later, with its medical basis.
- An option that would be considered only if the condition changes.
If surgery is only an option, ask what change would make the physician recommend it and how likely that change is. Describe it the same way in the demand. Its estimated price does not tell anyone whether it will be needed.
For a permanent serious injury, a life-care planner can assemble needs supported by appropriate medical input. The cost and employment effects may require other expertise. Identify the source of each assumption so the plan can be checked. Pricing a service doesn't prove that the patient will need it.
Before totaling future care, check each item for:
- Overlap with another expert's allowance.
- The recovery period in which it applies.
- Its expected frequency and duration.
For example, attendant care may already include the household help listed elsewhere. Transport might also have been entered twice. Remove the duplicate allowance before relying on the total.
Review expected care and unresolved prognosis questions before release. Later expense may exceed the estimate after the injury claim has ended. Counsel should explain that risk so the client can decide despite any uncertainty that medicine cannot resolve.
Prepare experts and challenge opinions on their merits
Choose an expert for the question that needs an answer. Qualifications alone do not establish reliable reasoning or sufficient facts. Supply material that challenges the preferred theory as well as material that supports it. Counsel needs to understand the method, assumptions and limits well enough to prepare for cross-examination.
For each expert, calendar:
- The disclosure deadline under the order and applicable rules.
- The report and supporting information required.
- Any need to supplement after new evidence arrives.
Prepare disclosures before mediation. Late or incomplete material can create procedural difficulties even when the underlying opinion is sound.
Check the factual basis within each discipline:
- Medical: the condition, causation, treatment needs, prognosis and restrictions.
- Reconstruction: collision inputs, measurements, competing scenarios and uncertainty.
- Economic: the underlying medical and vocational assumptions.
Respect each witness's expertise. Reconcile different assumptions by checking the evidence, without coordinating exaggeration.
Read the opposing opinion alongside the material on which it relies. Is an important record missing? Can the stated measurements support the conclusion? A reliability defect and a dispute about weight require different treatment. The fact that your expert disagrees does not alone make the other opinion inadmissible.
Send counsel updates about treatment, work and later incidents promptly. The expert may need to reassess or supplement an opinion. Counsel should explain what to report and how to send it.
Before retaining another expert, discuss the question to be answered and the expense. Several specialties may be necessary in a complex case; a different claim may need fewer. The cost has to be considered against the issues and practical recovery. Adding names to a witness list does not automatically improve the case.
How specialized trial preparation can help your claim
Aaron A. Herbert is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. You can review the firm's published background and case results when considering counsel. Ask how the firm would investigate the medical issues in your case. Earlier verdicts and settlements do not predict your outcome; each claim depends on its facts, evidence, law and available sources of recovery.
If you are considering hiring counsel after a Texas crash, request a free consultation with The Law Firm of Aaron A. Herbert PC or call 214 200 4878. Tell the office about the issue addressed in this article and any approaching deadline. Ask who would handle the case, what work is needed, and how fees and expenses are addressed before signing an agreement.
Referring counsel: send procedural dates through the contact page. Obtain acceptance before transferring responsibility; contacting the firm does not establish representation.
Read the Texas car accident claims and litigation guide or return to the Texas Car Accident Knowledge Hub for related resources.
Related car accident resources
- Medical Bills and Future Care After a Texas Car Accident
- Serious and Catastrophic Car Accident Injuries in Texas
- Evaluating a Texas Car Accident Settlement Offer (Coming soon)
Legal sources
JLG Trucking LLC v Garza 466 SW3d 157 Tex 2015.
JLG Trucking LLC v Garza discussing Guevara and medical causation.
Texas Rules of Civil Procedure effective October 1 2026.
This article provides general information about Texas law. Application depends on the facts, policy, court orders, and law governing the particular claim. Hypothetical examples are illustrations rather than reported firm cases.
ABOUT THE ATTORNEY
Aaron A. Herbert
Founding Attorney
Board Certified in Personal Injury Trial Law
Aaron founded The Law Firm of Aaron A. Herbert in 2010 to focus on developing each client's case and seeking its maximum value. For over a decade, he has represented people seriously injured in major accidents and industrial catastrophes, pursuing trial verdicts and settlements while working to reduce the stress of litigation.
Education
- Texas A&M University · B.S., Criminal Justice, 1999
- University of Oklahoma College of Law · J.D., 2002; graduated in the top of his class
Trial experience & approach
Aaron earned numerous jury verdicts at boutique personal injury litigation firms. According to his biography, he spent a year as the top-earning litigation attorney at a firm that frequently appeared in verdict searches as having one of the highest numbers of trial wins in Texas. At another Dallas personal injury firm, he moved from managing pre-litigation attorney to managing litigation attorney over seven years as the firm grew into one of Dallas's largest personal injury firms.
His biography describes a reputation as one of America's most aggressive trial lawyers, with noteworthy recoveries from judges and juries and substantial pretrial settlements. Most of those settlements included confidentiality agreements requested by the defense. Aaron has said the recoveries were justified by the injuries and losses involved, which no amount of money could make someone choose to experience.
His approach combines passion, preparation, persistence and courtroom imagination. He believes a well-supported, engaged and motivated team working cooperatively helps deliver strong representation, with the goal of achieving the best possible result for every client.
Dallas roots, military service & publication
Born and raised in Dallas, Aaron enlisted in the United States Marine Corps after high school and later received an Honorable Discharge. He completed his university and law degrees after his military service and became a lifelong Sooners football fan in law school.
Publication: “Litigating Dog Bite Cases,” Texas Dog Law Seminar, Dallas, 2009.
Professional affiliations & recognition
Professional affiliations and recognition listed in Aaron’s biography:
- State Bar of Texas
- American Bar Association
- Association of Trial Lawyers of America (now American Association for Justice)
- Texas Trial Lawyers Association
- Dallas Trial Lawyers Association
- Dallas Bar Association
- Tarrant County Bar Association
- Million Dollar Advocates Forum
- The National Trial Lawyers – Top 100 Trial Lawyers
Trial experience & approach
Aaron earned numerous jury verdicts at boutique personal injury litigation firms. According to his biography, he spent a year as the top-earning litigation attorney at a firm that frequently appeared in verdict searches as having one of the highest numbers of trial wins in Texas. At another Dallas personal injury firm, he moved from managing pre-litigation attorney to managing litigation attorney over seven years as the firm grew into one of Dallas's largest personal injury firms.
His biography describes a reputation as one of America's most aggressive trial lawyers, with noteworthy recoveries from judges and juries and substantial pretrial settlements. Most of those settlements included confidentiality agreements requested by the defense. Aaron has said the recoveries were justified by the injuries and losses involved, which no amount of money could make someone choose to experience.
His approach combines passion, preparation, persistence and courtroom imagination. He believes a well-supported, engaged and motivated team working cooperatively helps deliver strong representation, with the goal of achieving the best possible result for every client.
Dallas roots, military service & publication
Born and raised in Dallas, Aaron enlisted in the United States Marine Corps after high school and later received an Honorable Discharge. He completed his university and law degrees after his military service and became a lifelong Sooners football fan in law school.
Publication: “Litigating Dog Bite Cases,” Texas Dog Law Seminar, Dallas, 2009.
Professional affiliations & recognition
Professional affiliations and recognition listed in Aaron’s biography:
- State Bar of Texas
- American Bar Association
- Association of Trial Lawyers of America (now American Association for Justice)
- Texas Trial Lawyers Association
- Dallas Trial Lawyers Association
- Dallas Bar Association
- Tarrant County Bar Association
- Million Dollar Advocates Forum
- The National Trial Lawyers – Top 100 Trial Lawyers