Accident & Injury Law in Texas

Archive for the ‘Injury Law’ Category

Ask any personal injury trial attorney in Austin (not necessarily those guys who advertise on T.V. but don’t actually file suit or try cases) and you’ll find that an overwhelming number of lawsuits are filed against two particular insurance companies.

When you buy auto insurance, you’re supposed to be buying peace of mind.  But, there’s a built-in problem—your goal is to have the insurance company settle and pay any accident claim in which you were at fault, but the insurance company’s goal is to take in as much money as possible while paying out as little as possible.  When someone is making a claim against your policy, you fall on the “pay out as little as possible” side of the business.

So what happens is the insurance company tries to negotiate a quick, low settlement with the claimant.  If the person making the claim is representing themselves or if they hire an attorney who is known to settle quickly and not fight for top dollar (believe it or not, I have had one of the TV lawyers tell me that one insurance company told him they didn’t believe his threats of filing a lawsuit because he had never filed one before—and that was after handling hundreds, if not thousands, of claims).

But if the person making the claim against you is smart enough to hire an experienced accident injury lawyer, you may be on the receiving end of a lawsuit if you don’t have the right insurance company.

What is the right insurance company? The right one is one who will settle the claim for a fair value without forcing you into litigation.  The wrong company will force you to be served with a suit (possibly at work), then they will chose an attorney for you (though your policy will almost always allow you to chose an attorney), the attorney and them will convince you that they are doing the right thing and to let them handle everything (though the judgment, if it goes to trial) will be on your record, force you to take a day off of work for you deposition to be taken, and force you to take several days off of work to go to a trial you know you will lose.

My own personal survey of several of my peers and some mediators as well as reviews of the cases that I have filed suit on shows that if you have Allstate or Farmers insurance, you’re at a greater risk of being sued than with other insurance companies because they are the stingiest insurers.

I see ratings from time to time saying this insurance company or that is the best, but I’ve never seen ones for the worst.  Maybe I should start a survey to ask people who were at fault for an accident what insurance company they have and whether they were sued or it settled before suit was filed?

Here’s a great article about how tort reform is unlikely to cut health care costs.

Here’s some of the article:

The health economists and independent legal experts who study the issue, however, don’t believe that’s true. They say that malpractice liability costs are a small fraction of the spiraling costs of the U.S. health care system, and that the medical errors that malpractice liability tries to prevent are themselves a huge cost– both to the injured patients and to the health care system as a whole.

“It’s really just a distraction,” said Tom Baker, a professor at the University of Pennsylvania Law School and author of “The Medical Malpractice Myth.” “If you were to eliminate medical malpractice liability, even forgetting the negative consequences that would have for safety, accountability, and responsiveness, maybe we’d be talking about 1.5 percent of health care costs. So we’re not talking about real money. It’s small relative to the out-of-control cost of health care.”

Insurance costs about $50-$60 billion a year, Baker estimates. As for what’s often called “defensive medicine,” “there’s really no good study that’s been able to put a number on that,” said Baker.

Contrary to Rick Perry’s claims, a recent analysis by Atul Gawande in the New Yorker found that while Texas tort reforms led to a cap on pain-and-suffering awards at two hundred and fifty thousand dollars, which led to a dramatic decline in lawsuits, McAllen, Texas is one of the most expensive health care markets in the country. In 2006, “Medicare spent fifteen thousand dollars per person enrolled in McAllen, he finds, which is almost twice the national average — although the average town resident earns only $12,000 a year. “Medicare spends three thousand dollars more per person here than the average person earns.”

The Fort Worth City Council unanimously approved a $2 million settlement Tuesday with the family of a mentally ill man who died after police used a Taser to subdue him. His death was ruled a homicide.

The officer was not disciplined by the department or indicted, and the city admits no wrongdoing in the settlement deal with relatives of Michael Patrick Jacobs Jr.

“From the onset of the tragedy, so many lives have, been impacted … but not any more so than this young man and his still grieving family,” Councilwoman Kathleen Hicks said.. “Hopefully with this settlement, which will avoid a long. trial, we as a city can begin the prbcess of reconciliation and dialogue.”

Jacobs’ family filed a federal civil rights lawsuit, which doesn’t limit the amount a city could be forced to pay, unlike cases filed in state court.
Police Chief Jeff Halstead declined to comment Tuesday.

Last fall, he said his officers still used Tasers and would receive more training on use-of-force and handling situations with mentally ill or emotionally disturbed suspects. Police Lt. Paul Henderson said officers have already begun that training.

On that day about a year ago, Jacobs’ family called police to report a disturbance and said the 24-year-old had not taken his medication for bipolar disorder.

Although a Taser is designed to deliver a five-second charge of up to 50,000 volts of electricity, Jacobs was shocked for 49 seconds and then for five seconds, according to the autopsy report.

An autopsy concluded that the primary cause of death was “sudden death during neuromuscular incapacitation due to application of a conducted energy device.”

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.

A jury in Franklin, Texas decided a Texas A&M student was texting while driving and caused a deadly wreck – they then ordered him to pay $22 million in damages.

The victim, Megan Small of Houston, was a senior at Baylor University and was driving to Waco in November of 2007 when the accident occured.

The investigation indicated the vehicle driven by Reed Vestal crossed the center line and struck Small’s vehicle head-on.  Phone records indicated that Vestal sent and received 15 texts and made seven calls in the 45 minutes before the wreck.

The damages will be shared with Small’s friend Laura Gleffe, who was driving another car that rolled during the crash.

Small’s family attorney, Hunter Craft, said Vestal declared bankruptcy prior to the civil trial in Franklin.

Different deadlines for lawsuits over surgical sponges

The Texas Supreme Court said Friday that a San Antonio woman could not sue her doctor over a surgical sponge left inside her body because she waited too long to file suit — even though, she could not have discovered the problem any sooner.

The court ruled 9-0 that the patient, Emmalene Rankin, ran afoul of the statute of repose, a tort reform law enacted in 2003 that strictly bans, any medical malpractice lawsuit filed more than 10 years after surgery.
Lawyers for Rankin argued that the statute of repose violates the Texas Constitution’s open courts provision, which guarantees access to the legal system for those with a valid claim, because she did not have a legitimate chance to discover the cause of her chronic illnesses until exploratory surgery revealed an old sponge lodged in her abdomen.

The Supreme Court disagreed, saying the proper legal test is not whether Rankin was treated unreasonably by the law, but whether the Legislature enacted the law in a reasonable manner.

“The Legislature could reasonably conclude that the general welfare of society, and various trades and professions that serve society, are best served with statutes of repose … even if “a small number of claims are barred through no fault of the plaintiff,” Justice Don Willett wrote for the court. “Without a statute of repose, professionals, contractors and other actors
would face never-ending uncertainty as to liability for their work.”

Other states have exempted so-called “sponge cases” from statutes of repose because the problem is notoriously hard to discover and there is no question of malpractice, Willett noted. The Texas Legislature, however, did not include a sponge exception.

Carl Robin Teague, Rankin’s appellate lawyer, said he was troubled by the ruling because it deferred to the law over the state constitution. “To me, that’s backwards. The constitution should control the statute,” he said.

In a related case, the court ruled 9-0 that a Houston-area woman may proceed with her suit, over a sponge discovered nine years after her surgery.

Tangie Walters’ doctor and hospital tried to void her lawsuit for violating a separate legal deadline, the statute of limitations. That rule gives patients two years to sue after a disputed treatment unless they can prove they did not have a reasonable opportunity to discover the problem within the time limit.

The cases were Methodist Healthcare System v. Rankin, 08-0316, and Walters v. Cleveland Regional Medical Center, 08-0169.

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.