2007 July Archive

MySpace has found more than 29,000 registered sex offenders with profiles on it’s popular networking website.  This highlights the need for concern over the safety of our children when spending time on the internet. 

The FBI has issued a Parent’s Guide to Internet Safety that I highly recommend for anyone with children.  Particulary, the FBI warns parents to tell their children:

•  to never arrange a face-to-face meeting with someone they meet online;
• to never post pictures of themselves onto the Internet or online service to be viewed by people they do not personally know;
• to never give out identifying information such as their name, home address, school name, or telephone number;
• to never download pictures from an unknown source, as there is a good chance there could be sexually explicit images;
• to never respond to messages or bulletin board postings that are suggestive, obscene, belligerent, or harrassing;
• that whatever they are told by people they meet online may not be true.

Unfortunately, Blackmail is still alive and well in Texas.  It is used by business competitors, political opponents, and even family members.  Blackmail is subject to criminal prosecution and civil remedies.  The Courts have defined blackmail as:

“malicious threatening to do injury to person of another or to accuse one of crime or offense, to compel him to do an act against his will.”

Often boaters and jet skiers simply think of a day at the lake as “fun in the sun.” The video below is a grizzly reminder of how quickly things can go wrong.   In future posts to this blog category we’ll discuss laws affecting watercraft operators in Texas.

This video shows a recent jet ski accident that occurred just a few miles from my home:

For many years now, Texas has observed what’s called “The Collateral Source Rule.” In plain language the rule means that if you are injured by the negligence of someone else, then the person who harmed you should not get the benefit of any insurance or other sources that you have purchased in order to protect yourself. For example, if you are hit by a drunk driver and you incur $10,000.00 in medical expenses, the collateral source rule says that the drunk driver should be responsible for the full $10,000.00, even though you may have had health insurance or some other “collateral source” that helped you cover all of your medical expenses. The reasoning behind this is pretty simple – you made the choice to protect yourself through health insurance or other sources, and you likely paid a substantial amount in premiums for that coverage. Therefore, the drunk driver should not benefit from the coverage that you paid for to reduce the $10,000.00 that he is rightfully responsible for paying. After all, the law doesn’t allow you to have the drunk driver pay for all the health insurance premiums that you’ve paid for that coverage! 

Now, by reading the example above, it may sound like you get to pocket an extra $8,000.00 or so by receiving the $10,000.00 from the drunk driver and also having your health insurance company pay a portion of the medical bills. What actually happens is that your health insurance will contact you and demand that you pay them back for the medical bills that they initially paid. This is called their “Right to Subrogation.” In most cases, the law requires that you pay the health insurance company back, even if that would result in leaving you without one cent from the lawsuit that you went through the hassle of pursuing. If you refuse to pay your health insurance company back, then they will sue you . . . so that is a nightmare that you do not want to get into.  With health insurance companies staking a large claim on most personal injury recoveries, attorneys are left with the difficult task of trying to obtain a recovery which will both reimburse the health insurance company and compensate the client for all of the pain and hardship that they have been through at the hands of this negligent person (the drunk driver in our example above). That is where attorneys have the hardest work cut out for them – it is our job to tell your story to the jury and make the jury understand just exactly how much you’ve been through at the hands of this drunk driver. In addition to your medical expenses, the attorney will ask for your lost wages, compensation for your pain and suffering, money to cover your future medical expenses, and compensation for any disfigurement that you may have suffered. In personal injury cases, the law does not allow us to ask the jury to make the drunk driver pay for your attorney’s fees. What’s more, the law does not allow us to tell the jury that you are going to have to pay your health insurance company back!

So, why have I given all of this background? Well, without all of the background, then what I’m about to tell you about our beloved government here in Texas wouldn’t make much sense. So here goes –

Remember our discussion of the Collateral Source Rule? Well, one of the few breaks that Plaintiffs have traditionally had in Texas is the ability to recover (and keep) that small amount of money between what your health care provider charged you (the $10,000.00 in the example above) and the amount that your health insurance company actually paid out (the $8,000.00 in our example above). Since most health insurance companies have a negotiated rate with your doctor, they typically do not pay the full amount that your doctor has charged. What this meant for Plaintiffs is that they could keep that small difference in money. So, going back to our example, the drunk driver would pay you the full $10,000.00 charged for your medical bills, you would have to pay your health insurance company back the $8,000.00 that they paid out, and you could keep the $2,000.00 that was remaining. That $2,000.00 can then be used to cover some of those other expenses, such as your court costs, attorney’s fees, the out of pocked medical expenses that you personally paid, and all of the expenses that you incurred in trying to get that drunk driver to pay for what he or she has done to you.

In 2003, the Texas Legislature passed a new statute that made it unclear whether you could still get that small difference between what was charged by the medical providers and what your health insurance company paid (the $2,000.00 in our example). This became a big debate in the legal community and was known as the “Paid or Incurred” debate. To make a long story (somewhat) short, the Texas Legislature passed a bill that would clarify that statute and reinforce that plaintiffs were still entitled to that small difference in money. To our Legislature’s credit, the bill passed with flying colors — only two members of the entire Legislature voted against the bill. Sounds reasonable, right? Well, not to our Governor! Rick Perry vetoed the bill! Our Governor singlehandedly took away that small benefit (the $2,000.00 from our example above) that the Texas citizens have traditionally received under the Collateral Source Rule. If you would like to take a look at the history of this bill and Governor Perry’s veto of the bill, you can check out the Texas Legislature Online .

So, why am I blogging? I’ve never been one to try to make big political statements. You won’t find me living in the top of a California Red Wood to try to save the tree or camping out in front of the President’s house in hopes of catching his ear. Agree with those folks or not, you’ve gotta admire their dedication . . . but that’s just not me. I’m just a regular Joe (or should I say Jill?) who goes to work every day, pays $3.22 for my gasoline, and picks up on bits of news that are posted on the front page of Yahoo or broadcast on the nightly news.

On June 15, 2007, something happened that got me riled up . . . Governor Rick Perry vetoed a bill that had passed through the Legislature with sweeping approval and (more importantly) was fully supported by the Texas citizens. (I’ll be posting this story with the full background to explain the bill’s importance in tomorrow’s post.) I mentioned how upset I was to someone close to me and her response was, “Well, I’m sure he had his reasons.” Suddenly I found myself thinking of the old Goldie Hawn movie, Protocal (if you haven’t seen it, it’s a great movie and well worth the watching). I realized that so many of us, myself included, fall into a false sense of security with our state and national leaders . . . believing that they will do the right thing, without really checking up on them. So here I am trying to make a small contribution to the awareness of the general public. And for our Texas leaders, I’ll borrow the words of Goldie Hawn: “I’ll be watching you.”

Personal Injury Attorney – Dallas, Texas

Hello and welcome to my blog.My hope is to use this blog as a message board to the public concerning recent changes in Personal Injury law in Texas. Recent changes in the law have created a devastating state of injustice in Texas. These changes include removing the open courts provision from the Texas Constitution, placing tremendous and unreasonable limitations on recovery for those who have been severely injured, and setting a statutory standard for our emergency room doctors which makes negligent care the accepted standard of care in our emergency rooms. Under the new laws established for Medical Malpractice in Texas, an emergency room doctor is not liable for such things as removing the wrong leg on a patient during an emergency amputation!

Our Governor and Legislature have all but abandoned the common man. Big businesses and insurance companies are being insulated and protected by our government, while the common man’s rights and protections are whittled away. Perhaps the most disturbing part in all of this is the fact that big businesses and insurance companies (along with the politicians who reside in their back pockets) have poured money into misleading advertising which has been utilized to trick the citizens of Texas into voting for legislation that removes their legal rights.Perhaps you recall receiving telephone calls from your doctor’s office during the fall of 2003 . . . Medical nurses and administrators were asking you to vote “yes” for Proposition 12. Posters were hanging in most doctor’s offices, crying out to “Save Your Doctor.” Proposition 12 was successful and passed in September 2003. It was advertised to the citizens of Texas as a measure which was needed to limit excessive awards in Medical Malpractice cases . . . In reality it granted the legislature the ability to remove the Texas citizens’ constitutional right to access to the Courts as was guaranteed by the Texas Bill of Rights. Our Bill of Rights has long included an open courts provision which reads as follows: “All courts shall be open, and every person for an injury done him, in his lands, goods, person, or reputation, shall have remedy by due course of law.” As a result of trickery and a very misleading advertising campaign pushed by politicians and insurance companies, the Texas citizens unwittingly voted to amend the Texas Constitution and thereby restrict their own right to access to the Courts from the Texas Constitution.

In the coming days and months, I plan to provide more information to the public in effort to expose the truth to those people with an interest in reading it. I would also be happy to answer specific questions of interest in personal injury law for those who would like to submit them.