Accident & Injury Law in Texas

Archive for the ‘Government’ Category

Federal safety regulators are investigating a few reports of gas pedals becoming trapped by floor mats in 2010 Ford Fusions and Mercury Milans.

Officials with the National Highway Traffic Safety Administration said Tuesday that the agency opened a preliminary investigation last Friday after receiving three such complaints involving unsecured all-weather floor mats. There are no reports of crashes or injuries. Safety officials said the investigation covers about 250,000 Fusions and Milans.

A Ford spokesman, Said Deep, said the problem was attributable to drivers stacking all-weather mats on top of floor mats that come with the vehicle. Ford’s all-weather mats have warnings advising customers not to stack them and to secure them properly to the floor, Deep said.

Here’s another great article about tort reform myths which was written just after the 2003 tort reform legislation was passed.

Here’s an excerpt:

The purpose of Proposition 12′s severe restrictions on victims’ rights was to lower malpractice insurance premiums, which had seen double-digit increases. In Texas, as elsewhere, the tort reformers exploited the rate hikes as part of a scare campaign to sell reform. However, the facts show that the legal system is not driving insurance rates. Tort actions at the state level – meaning personal-injury lawsuits, everything from product liability to traffic accidents to libel have fallen 5 percent in nine years, according to the National Center for State Courts.

More specifically, malpractice filings declined nationally by about 4 percent between 1995 and 2000. And while a recent analysis of the Medicare population estimated that medical errors kill 131,000 people annually, making it the fourth leading cause of death, medical suits are only 5 percent of personal-injury filings, with product liability cases another 5 percent. Plaintiffs lose 60 percent of product cases and 70 percent of malpractice suits.

Not only are socially significant lawsuits like malpractice and product liability a small fraction of the legal picture but numerous studies show that capping damages doesn’t affect insuance premiums. One survey examined insurance rates between 1985 and 1998, then ranked the states according to the severity of their restrictions on lawsuits. Increased severity did not produce lower rates. In Texas, where malpractice filings dropped 20 percent in the nine years before Proposition 12, the liability picture has been little improved by its passage. About a third of doctors will see a decrease of 12 percent after cumulative increases of 147 percent. The rest will either get no relief or double-digit increases.

According to J. Robert Hunter, Federal Insurance Administrator under Presidents Ford and Carter, caps don’t work because liability rates reflect not litigation costs but the insurance industry’s own practices. During good times, insurers write policies even for the worst risks to generate cash for investment. When the stock market tanks, rates climb steeply to cover losses. The current liability crisis, Hunter notes, coincided with the market downturn that began in the summer of 2001. And since the insurance cycle is international, the “hard market” also drove up premiums in Canada, Australia and France. And those countries have totally different legal systems, Hunter says.

…

The numbers show that lawsuits are an insignificant cost both to businesses and to health providers, for whom they represent less than 2 percent of spending. In short, the lawsuit-abuse crisis is a hoax.

The Texas Department of Insurance officially proposed a rule Tuesday that would ban the use of certain policy clauses that make it easier for insurance companies to deny benefits to some policyholders.

The move is the first step in a potential ban on so-called discretionary clauses — which often exist in disability, life, accident and health policies.

Discretionary clauses give insurance companies the sole authority to interpret the terms of their policies. In other words, the clauses effectively give companies the authority to decide who gets paid and who doesn’t.

In a filing to propose the rule change, the Insurance Department said: “Discretionary clauses are unjust, encourage misrepresentation, and are de- ceptive because they mislead consumers regarding terms of the coverage.”

Deeia Beck, who represents consumers in insurance issues for the state, asked Insurance Commissioner Mike Geeslin to ban the clauses in October.

And in March, Geeslin made an informal posting of the pro posed rule change to gauge public sentiment. Now, he has taken the next step by formally proposing the change.

The deadline for written comments to the department is June 28, and there will be a public hearing on July 12.

“This is the next step in getting a permanent rule in place,” Beck said. “This is an excellent development to help rid the state of these unfair clauses.”

The insurance industry objected to the proposed change in March.
Jared Wolfe, head of the Texas Association of Health Plans, said the push for a ban is driven by plaintiffs’ lawyers – and shoddy evidence.

Almost two dozen other states have taken steps to reel in discretionary clauses.

Blood could soon be drawn at Central Booking at the Travis County Jail, after county commissioners’ 4-0 vote Tuesday approving changes to an agreement between Travis County and the City of Austin.

The Austin City Council is expected to consider the agreement changes later this month.

A law went into effect last year that expanded the circumstances requiring blood or breath tests from DWI suspects. They now include incidents in which victims are injured and transported for medical care and the presence of a child passenger in the suspect’s vehicle. The Travis County sheriff’s office and Austin police estimate that an additional 300 to 400 blood draws will be required each year on top of the 400 to 500 blood draws that have been taken at the request of local law enforcement.

Two primary reasons for having a phlebotomist in Central Booking are to improve officer and public safety and to avoid the costs of blood draws at University Medical Center Brackenridge.

At Brackenridge, for an average 910 blood draws, phlebotomy services are estimated to cost $329,420 a year, or $362 per blood draw, a cost that includes a $275 medical exam.

Though blood draws are taken at jails in Bexar, Dallas and Williamson counties, they are taken at hospitals in Harris and Tarrant counties.

Prompted by Toyota recalls, lawmakers considering bills to bolster regulator authority

Congress took the first steps Thursday toward a wide-ranging auto safety bill that would require devices such as black boxes and brake override systems and would strengthen federal regulators’ enforcement powers.

A subcommittee of the House Committee on Energy and Commerce opened hearings on legislation sponsored by the group’s chair Rep. Henry Waxman, D-Calif. The chairman of the Senate Commerce Committee, John D. Rockefeller IV, D-W.Va., introduced a similar measure this week.

Both bills come after Toyota Motor Corp.’s recalls of more than 9 million vehicles worldwide since last year, which were the subject of congressional hearings this year.

The biggest recalls are for accelerator pedals that could stick or become encumbered by floor mats.

The bills are Congress’ first serious look at auto safety in a decade, since lawmakers passed reforms
after accidents involving Firestone tires on the Ford Explorer. Further hearings are expected in the House and Senate.

Under the House version, automobiles would be required to contain brake override systems that would stop vehicles even if the throttle was open.

The measure would require event data recorders, so-called black boxes that would provide information from the 60 seconds before a crash and the 15 seconds after. Neither device is now required, and many existing data recorders do not provide that much information.

The bill would also allow the National Highway Traffic Safety Administration to order immediate recalls if agency officials thought vehicles posed a threat to driver safety.

“If enacted, these measures would significantly increase the agency’s leverage in dealing with manufacturers,” traffic agency administrator David Strickland said in prepared remarks. Strickland said the legislation would bring his agency’s enforcement powers in line with those of other federal regulators.

In prepared testimony, David McCurdy, chief executive of the Alliance of Automobile Manufacturers, said the industry group could support the override and black box standards, which have been sought for years by safety groups.

The House bill also would remove a cap on the civil penalties that can be imposed in recalls, and a Senate bill would raise it from $5,000 per vehicle to $25,000.

Last month, Toyota agreed to pay a $16.4 million fine imposed by the Transportation Department, the largest now allowed by law. The department said Toyota failed to disclose information related to a sticking pedal recall ordered in January.

Toyota did not admit fault in the situation, however, and the department said it was continuing to investigate the recalls.

Discretionary clauses, which are the subject of a recent public debate between insurers and consumer advocates, give insurance companies the authority to interpret the terms of their policies. They also provide the legal  cover to win most lawsuits in which policyholders sue over unpaid claims.

In other words, the clauses effectively give companies the authority to decide who gets paid and who doesn’t.

Insurers say the clauses are necessary to keep premiums low and to help them fight off frivolous lawsuits.

But Deeia Beck, the state’s public insurance counsel, has asked Insurance Commissioner Mike Geeslin to ban the clauses. Geeslin has solicited preliminary comments from the public and the insurance industry and will decide whether to formally recommend a rule change, which would trigger a formal public comment period before a decision is made.

“The use of these types of , clauses is inherently unfair. to consumers,” Beck said. “These clauses allow insurers to make patently unfair decisions, and consumers will have very little judicial recourse to have those decisions overturned.”

Beck has chosen to follow the lead of almost two dozen other states that have taken steps to reel in discretionary clauses, which are most comonly found in long-term disability policies, though Beck said some health care policies contain them, too. She said the new federal health care law would have no effect on discretionary clauses.

Not surprisingly, the insurance industry is fighting back.

Jared Wolfe, head of the Texas Association of Health Plans, said the push for a ban is driven by plaintiffs’ lawyers and shoddy evidence.

The insurance industry also has questioned the commissioner’s authority to ban the clauses.

Beck has responded to the industry’s claims of spiking premiums by pointing to a 2005 industry study, by Milliman Inc., a consulting and actuarial firm.

The study said that the prohibition of discretionary clauses would lead to a cost increase of 3 to 4 percent in disability policies, and that may be on the high side.

Beck added that the insurance industry has had several years to show that banning the clauses in other states has led to high premiums and increased litigation, but they haven’t produced any evidence to demonstrate their claims.

If Beck and other advocates manage to persuade Geeslin to make a policy change, it could take awhile before policies in Texas cease to contain discretionary clauses.

If other states’ experiences are any indication, the fight will end up in court.

Michigan and Montana, which have banned the clauses, were sued by insurance companies. Both states, however, eventually won appeals after lengthy court fights.

Even if a ban were to lead to a lawsuit, Beck said, pursuing it is still the right thing to do for the countless number of people negatively affected by discretionary clauses.

You can also read our Questions and Answers about discretionary clauses.

Doctors in the United States wrote more than 4 million prescriptions last year for nitroglycerin tablets, heart drugs placed under the tongue to reduce the chest pain of angina or to stop a heart attack.

But the majority of the drugs sold had not been approved for sale or had their safety and effectiveness vetted by the Food and Drug Administration.

And many doctors, who discovered only last week that pharmacies were giving their patients unproven heart tablets, now say they have no way of knowing whether patients have suffered unnecessarily as a result.

The problem of the unapproved tablets stems from a longstanding ambiguity about the rules for drugs whose use predates the establishment of the FDA in 1938. Only one brand of nitroglycerin pills is federally approved: Nitrostat, made by Pfizer, on the market since 2000.

The FDA sent warning letters to two drugmakers ordering them to stop marketing unapproved nitroglycerin tablets. But the drugs are still being sold at pharmacies while the order takes effect.

The drugmakers said they would comply with the order but said that their tablets were safe.

The FDA said that it had not examined the quality of the products it was ordering off the market but that it had recorded problems with other unapproved nitroglycerin products in the past.

People who take unapproved nitroglycerin are advised to continue taking their tablets but to consult their doctors about replacement prescriptions.

Cardiologists regularly prescribe nitroglycerin to relieve chest pain associated with coronary artery disease. Placed under the tongue, the drug quickly dissolves into the blood, where it dilates the coronary artery, slightly decreasing blood pressure and reducing heart exertion.

When taken during an initial episode of chest pain, nitroglycerin can prevent a heart attack in 3 to 4 percent of patients, said Dr. Steven E. Nissen, a cardiologist at the Cleveland Clinic.
Many makers of various drugs, not only nitroglycerin tablets, have long contended that their medications did not require FDA review because they were grandfathered as pre-1938 drugs. But the agency is now disputing that interpretation.

U.S. District Judge Lee Yeakel has overturned a Texas law that bars medical professionals from contacting victims within 30 days of an accident and lawyers from contacting people within a month of getting arrested.

Judge Yeakel ruled that the law was unconstitutional and infringed on free speech. Legislators approved the law last year, saying it was aimed at unethical solicitations. The case was brought by a Houston lawyer and an Austin chiropractor.

In his ruling, Yeakel said the chiropractor in the case and his patients showed that early medical treatment was beneficial to accident victims.

Yeakel also struck down banning lawyers’ written solicitation of people who had been arrested or received a summons. The judge cited a higher court opinion that drew a distinction between the privacy due to accident victims or those in wrongful-death cases compared with those recently arrested.
“While a criminal or traffic (defendant) may be shaken by his arrest, what he needs is representation, not time to grieve,” the judge wrote.

Attorney Martyn B. Hill, one of the plaintiffs, said the ruling means a letter sent by a lawyer to someone who recently was arrested or received a traffic ticket is protected as free speech. Hill said the ruling also allows medical professionals to send truthful marketing to people within 30 days after an accident.

As always, be careful if you are contacted by a doctor after an accident – request our free report for accident victims to find out why.

Austin City Council members  approved a resolution last week saying it is their “clear will” that police officers not personally collect blood from people suspected of driving while intoxicated.

During the meeting, police leaders told the council that they have abandoned plans to train a group of officers to act as phlebotomists.

Police Chief Art Acevedo had previously said he was interested in teaching officers to collect blood evidence, setting off a public debate that went on for months.

Assistant City Attorney David Douglas told council members before their vote that barring Austin officers from collecting such evidence could conflict with state statutes, which require officers ‘to use “all lawful means” to enforce the law.

Civil libertarians oppose police officers taking blood, saying it could put the city at risk of lawsuits if a suspect is injured. They also said they thought city officials should instead focus their efforts on programs that would prevent drunken driving, such as offering free taxi rides for intoxicated motorists.

The police department is now exploring other options and told council members that police officials have been, and will continue to, have blood drawn at Austin hospitals.

Austin police administrators also are in talks with Travis’ County Sheriff Greg Hamilton about creating a partnership in which blood would be drawn by phlebotomists at the county’s central booking facility.

In a blow to businesses that contact drivers after car wrecks, Texas’ law enforcement and transportation agencies have agreed to drop telephone numbers from crash reports.

The Texas Transportation Commission is scheduled to consider the new reporting form at a meeting today in Fort Worth.

The inclusion of phone numbers on the reports has prompted several transportation commissioners to express concerns about privacy. If adopted by the commission, the new form would be used starting Jan. 1.

“The need for and uses of the phone number do not outweigh the privacy concerns that the collection, storage, and release of the phone number creates,” Texas Department of Transportation staff members said in their recommendation to the commission. The commission oversees TxDOT.

The Texas Department of Public Safety, which also has a say on the forms, agreed in 2008 to drop the numbers after questions were raised about the potential for insurance fraud.
The numbers were reinstated after a lawsuit by a chiropractor and a business that gathers crash report information for clients. They argued that the state had to follow a formal rule-making process to make the change.

This year, DPS officials changed course and said they wanted to keep the numbers on the forms for law enforcement purposes. Transportation commissioners balked; the two agencies said they’d talk.

In the latest turn, the Tx-DOT staff recommendation posted Monday said “The Department of Public Safety has determined that, although the phone number can be helpful for follow up crash investigation issues, it is not vital to the form.”

DPS spokesman Tom Vinger said by e-mail that his agency is “confident the concerns we have previously expressed regarding the contents of the form can be adequately addressed in other ways.”

An investigating officer can still put a phone number into the narrative portion of the report or into separate notes, TxDOT spokesman Chris Lippincott said.

Deleting it from the form, however, would make things difficult for businesses that purchase crash records from local law enforcement agencies so that they can call and offer medical or other services to those involved.

Insurers say that such telemarketing prompts fraud, creating or inflating claims. Insurance regulators supported removing the numbers. Businesses using the phone numbers say poor people in particular benefit from calls that allow them to get services paid for by the insurer of the at-fault driver.

Douglas Becker, attorney for the two entities that sued last year, said: “I think it’s sacrificing what’s good for the people in favor of what’s good for the insurance companies. I just think it’s disgusting and not the way government ought to act.”

Mark Hanna of the Texas Committee on Insurance Fraud and the Insurance Council of Texas, which represents hundreds of insur ance companies, said “The recommendation allows Texas transportation commissioners to go, with their gut feeling that no one wants this type of solicitation.”

I, for once, agree with the insurance company as I have multiple clients who have had phone calls for medical and legal services before and after they hire me.  In addition, some have claimed they worked for the insurance company or the doctor worked for the insurance company.