Accident & Injury Law in Texas

Archive for the ‘Injury Law’ Category

Athletes, band members, cheerleaders and other students ages 14 to 18 who take part in strenuous sports can get a free heart screening Saturday at Heart Hospital of Austin, 3801 N. Lamar Blvd.

The screening, from 8 a.m. to noon, is sponsored by the hospital and Championship Hearts, a charity created by Austin Heart, the doctors’ group that founded the hospital.

Students will receive an echocardiogram, or ultrasound of the heart, and an electrocardiogram, or EKG, to detect hypertrophic cardiomyopathy, a thickening of the heart muscle and a leading cause of sudden death among athletes.  The tests also will detect ether conditions, including abnormal heart rhythms.

Volunteer cardiologists from Austin Heart, Children’s Cardiology Associates of Austin and Heart & Vascular of Central Texas will be on hand.

Although there is no charge, a $15 donation is suggested. Registration will be in the hospital lobby. For more information, call 340-7313.

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.

In 16 states (Texas is not one of them), drugs now kill more people than auto accidents  do, the government said. Experts said the shift reflects two opposite trends: Driving, is becoming safer, and the legal and illegal Use of powerful prescription painkillers is on the rise.

About a month ago, I had to take the deposition of a driver that had caused an accident.  I really ticked off his attorney when I asked him the following questions:

Q: Are you aware that, after the accident, my client had blood in his urine for a few days?

A:    No.

Q: Are you aware that, as a result of the accident, my client missed several weeks of work?

A: No.

Q: Are you aware that my client is claiming medical bills of approximately $7,500?

A: No.

Q: Are you aware that my client is claiming lost wages of about $3,000?

A: No.

Q: Based on my math, my client is claiming $10,500 just for his lost wages and medical bills, not including the weeks of pain he had to endure.  Are you aware that your insurance company has only offered my client $8,000 to settle his claim?

A: What can I do about that?

Of course, I am paraphrasing and omitting the interruptions by the other attorney who was objecting, instructing his client not to answer, and my discussion with him about why his client should answer (which he eventually allowed, after making many more objections).

First, I should tell you that I genuinely liked his client and felt that, when he took full responsibility for the accident in his deposition, he was trying to do the right thing.  But why then, was he being sued?  True, he had made a mistake and hurt my client.  But he had insurance to cover that and we tried to settle the claim for his medicals, lost wages, and what we believed a jury would agree to be his pain and suffering for the type of injuries he incurred.

The answer lies with who is in the driver’s seat.  At least, who is driving his defense.  What is obvious from the exchange above is that the defendant did not know my client’s injuries or his demands.  But it’s his case.  It’s his name as the defendant in the law suit.  It’s his credit that will be dinged by a judgment.  It’s his life that’s interrupted by this lawsuit.  But the insurance company and their lawyers don’t really care about that.  The lawyer is supposed to have a duty to the client, but there is an inherent conflict when the company you work for is paying your bills.  Sure, the other lawyer is supposed to represent his client, but if his client wants to settle but the people paying his check do not, who does he choose?  The ethics guidelines say it should be his client’s choice, but how can the client choose what he isn’t even aware of?

Unfortunately, almost all defendants in a car accident have the same involvement—almost none.  If you are ever a defendant, read your policy (it may allow you to choose your lawyer) and stay involved.

Austin police early Tuesday drew the blood of a drunken driving suspect — without a previously required search warrant who was involved in a crash and had an 11-year-old boy in the car.

The incident happened 28 minutes after a new law took effect that gives police wider authority in the types of cases in which they can draw blood without a search warrant, Austin police Cmdr. Donald Baker said.

Under the new law, authorities may collect the blood of drunken driving suspects if a child younger than 15 is in the car.  The law also gives officers the option to draw the blood of drunken driving suspects without a search warrant if a crash results in an injury that requires hospitalization, among other criteria.

Baker said police responded to a call early Tuesday about the crash in the 3400 block of West William Cannon Drive near Brodie Lane.  The driver, Son Do, 35, faces a charge of driving while intoxicated, a state jail felony, court records show.

The boy was released to his mother, Baker said.

In most states, if somebody is texting behind the wheel and causes a crash that injures or kills someone, the penalty can be as light as a fine.

Utah is much tougher.

After a crash here that killed two scientists, Utah passed the nation’s toughest law to crack down on texting behind the wheel. Offenders now face up to 15 years in prison.

The new law, which took effect in May, penalizes a texting driver who causes a fatality as harshly as a drunken driver who kills someone.

In effect, a crash caused, by such a multitasking motorist is no longer considered an “accident” like one caused by a driver who, say, runs into another car because he nodded off at the wheel. Instead, such a texting-related crash would now be considered inherently reckless.

“It’s a willful act,” said Lyle Hillyard, a Republican state senator and a supporter of the new measure. “If you choose to drink and drive or if you choose to text and drive, you’re assuming the same risk.”

The Utah law represents a concrete new response in an evolving debate among legislators around the country about how to reduce the widespread practice of multitasking behind the wheel – a topic to be discussed at a national conference about the dangers of distracted driving being organized by the U.S. Transportation Department for this fall.

Studies show that talking on a cell phone while driving is as risky as driving with a .08 blood alcohol level — generally the standard for drunken driving — and that the risk of driving while texting is at least twice that dangerous.

Treating texting behind the wheel like drunken driving raises complex legal questions.

John Wesley Hall, who just stepped down as president of the National Association of Criminal Defense Lawyers, said police might have difficulty proving a driver suspected of texting wasn’t merely dialing a phone. If an officer or prosecutor wants to confiscate a phone or phone records to determine whether a driver was texting at the time of the crash, such efforts can be thwarted by search-and-seizure and privacy defenses, lawyers said.

“The police have no business going into my phone,” Hall said.
Prosecutors and judges in other states already have the latitude to use more general reckless-driving laws to penalize multitasking drivers who cause injury and death.

The Austin City Council unanimously agreed day to establish a ban on text messaging while driving. A violation would be a Class C misdemeanor, which carries a fine of up to $500 and can be appealed in Municipal Court. City staffers still have to write an ordinance that the council must approve, a process that could take a few months.

The Utah law “is very note worthy,” said Anne Teigen, a policy specialist with the Natonal Conference of State Legislatures. “They have raised the bar and said texting while driving is not just irresponsible, and it’s not just a bad idea — it is negligent.”

Under Utah’s law, someone caught texting and driving now faces up to three months in jail and up to a $750 fine, a misdemeanor. If they cause injury or death, the punishment can grow to a felony and up to a $10,000 fine and 15 years in prison.

Alaska is the only other state that takes a similarly tough approach to electronic distraction.

A new state law that is going into effect on September 1, 2009 is restricting the use of cell phones in school zones. However, the only way to enforce this new law is by installing signs notifying drivers of the new law because the absence of signs is a defense against prosecution. This law is very flexible because if the city doesn’t have money to put the signs up then there is no penalty. However, the law makers plan on trying to make the law not so optional in their next session. Some think that it’s not worth the amount of money it would cost to put up all those signs. For example, for Austin they would invest $80,000 installing signs warning of a $200 fine. On the other hand many people are adamant that the safety of the kids and drivers is worth that much and much more.

On Monday, August 10, 2009 Luke Anthoney Looshchen caused a three car accident going east bound on Highway 29.  He was driving on the wrong side of the road when he collided with a jeep and a van which was carrying seven people.  Pete Mendez and Paula Martinez were both pronounced dead on the scene, and Crystal Martinex died later on Tuesday.  Stephanie Valadez was in critical condition and later died on Wednesday.  Looshchen was charged with three counts of intoxication manslaughter which is punishable by up to 20 years in prison as well as three counts of intoxication assault which is punishable by up to 10 years in prison. Since Stephanie Valadez also died, one of the assault charges will be changed to manslaughter.  The blood tests are still pending but Looshchen told the officer that he had been drinking as well as taking pain relievers and anti-depressants.  Research showed that Looshchen was involved in two other accidents in the past three years and are now investigating those more closely.

While it is well known that driving while using cell phones can be dangerous, researchers at the National Highway Traffic Safety Administration wanted to conduct a study in 2003 to assess the risk.

However, the agency did not approve of the study because they feared it would anger the Congress.  Not only that, but senior government officials chose not to make research that recommended that cell phones not be used while driving public, until today.

Two consumer advocacy groups filed a Freedom of Information Act lawsuit for the documents and The New York Times published the documents on their website.

Dr. Jeffrey Runge, the former head of the National Highway Traffic Safety Administration, said the Congress was telling his agency to not lobby states and to only gather safety information.  Runge decided not to publish the research in order to avoid angering the Congress.  Many don’t agree with Runge’s logic because no matter who it upsets, the information could save lives.

Clarence Ditlow, the director of the Center for Auto Safety, believes that it could be as dangerous as drunk driving.  Other information that has been withheld includes a draft letter speaking about how hands-free laws may not make calling and driving any safer because the actual conversation is what distracts drivers, not holding the phone.  This information was petitioned for as well and the Los Angeles Times published it last year.

In 2002, the highway safety researchers estimated that 955 deaths and 240,000 accidents were caused by cell phone use in vehicles.  Austin City Council Member Mike Martinez wants texting and driving to be illegal and for hands-free devices to be required if drivers are using their cell phone.

Research shows that motorists talking on a phone are four times as likely to crash as other drivers  and are as likely to cause as accident as someone with a .08 blood alcohol content.  The research concluded that the use of cell phones has contributed to a large amount of accidents and fatalities and therefore they recommend that drivers avoid using their phones in anyway unless it is an emergency.

Runge explains that he didn’t publish any of this because Congress had told him not to use its research to lobby states and he could lose the agency their financing.  Others said they didn’t publish the data because it was inconclusive and incomplete.  Runge further defends his decision saying that he feels that the issue is of the utmost importance and needs public attention.  He also says that he wanted to send the research to governors to sway them to pass hands-free laws.  However, Transportation Secretary Norman Mineta says he was unaware of anything of the sort going on and that the research never reached his desk.

After GM filed for bankruptcy, they went to court to be granted permission to sell their assets as a whole to a new company.  U.S. Judge Robert Gerber approved of GM’s plan saying that it would benefit everyone involved.

While many were in favor of this decision, many were not.  Those who were injured through faulty GM cars have appealed Gerber’s decision to the U.S. District Court in New York because the GM plan would free the “new” GM from liability for people injured by a defective GM product before June 1.

If the appeal isn’t submitted by noon Thursday, GM’s plan will go into full effect.  The government is also backing Gerber’s decision as well as the Treasury who is offering to pay $50 billion to help the ”new” GM if the sale goes through Friday.  This makes the appeal even more difficult.  However, the people against GM’s plan are determined.

Robert Dinnigan’s ten year old daughter is now paralyzed from the neck down due to a car accident in a GM car.  If GM’s plan goes through, any chance of having GM be liable is gone.  Other people like Dinnigan are pushing hard for their appeal to be heard.  Some such as Davide Neier, a New York-based bankruptcy lawyer thinks a compromise would be the best answer.  While he believes that the court will not block the GM sale, he thinks it is possible that the court could determine the amount of consumer liability the ”new” GM should be responsible.  That way, GM can start over, but those hurt by “old” GM will not be left completely out to dry.