Texas Personal Injury Law Blog

Dr. Pamela L. Johnson is an obstetrician/gynecologist who has been forced out of three states due to her incompetence and faulty surgical skills. After having her licenses suspended in both Virginia and New Mexico, as well as being fired by Duke University Medical School in North Carolina, Dr. Johnson has found refuge in Texas.

Three years ago, Texas Lawmakers enacted new medical malpractice laws which establish a zero accountability standard for doctors. Given that patients now have virtually no right to protection from careless and negligent doctors, the Texas lawmakers have also abolished the Office of Patient Protection, which formerly served as an ombudsman for patients harmed by medical malpractice.

The radical “tort reforms” of 2003 have resulted in making Texas the nations dumping ground for bad doctors.

First, let me say this — I am not anti-Rick Perry or anti-Republican, or anti-Democrat for that matter.  I simply call it as I see it — and as I see it, Texas Citizens who are forced to avail themselves of the personal injury or medical malpractice laws of Texas as a result of an accident, injury, or wrongful death, are in serious trouble.  My purpose in writing on issues concerning our Texas government or personal injury laws is never to inflame.  (Though I’ve already endured the wrath of one die-hard Perry supporter.)  My purpose is to make a difference!  How in the heck is our Governor or our legislature to know that we are not happy with the decisions that they are making for us if we do not speak out?  If by posting on issues that I find important, I am able to encourage even a handful of Texas citizens to speak out and contact their area congressmen about their concerns, then my purpose has been served.

I’ve also been warned that if our Governor discovers my posts that I will risk retaliation.  To this I have but one response — if our Governor should ever do me the honor of taking the time to visit this blog, please read the posts on Government Misdeeds!  This is not an attack, but a cry for help!  The Texas citizens are suffering from misguided government decisions — we need your consideration of these issues. 

Governor Perry has posted his own response and claimed justification for vetoing HB3281 (the bill discussed on my July 14, 2007 post).  Specifically, Governor Perry states:  “This bill would permit an individual in a personal injury lawsuit (other than a medical malpractice claim) to recover more money for medical expenses than actually was or will be paid.”  Governor Perry further argues that allowing Injured Victims to submit the full amount of their medical bills to the jury, when they may have obtained a small reduction of  the total bills through their privately purchased health insurance, would be misleading to the jury.  This might seem like a somewhat reasonable justification at first glance.  Unfortunately, Governor Perry is simply not telling the truth.  The Governor’s response misleads the Texas citizens when he claims that the bill which he vetoed would allow Injured Victims to recover more money than they actually paid in medical expenses — in reality, Injured Victims are not now, nor have they ever been, able to seek full recovery of the medical expenses that were actually paid!  Injured Victims have never been able to ask the jury to make the Defendant (the drunk driver in our previous post) reimburse the Injured Victim for the health insurance premiums (which are clearly a part of the Injured Victim’s “medical expenses”) that the Injured Victim has had to pay in order to receive health care.   Moreover, the Governor’s response does not discuss the fact that Attorneys and Judges are required by Texas law to pretend to the jury that insurance is not involved in a typical lawsuit.

In a typical car wreck case, the Injured Victim’s attorney has to sue the individual driver of the other car (the drunk driver in our example from the previous post), even though the defendant/drunk driver’s insurance company is actually hiring the attorney, making all of the decisions for defending the case, and making the decision as to whether to settle the case without a trial.  The justification for this is that Insurance Companies believe that the jury will award less money if they think that the defendant/drunk driver does not have insurance and will have to pay the judgment out of his own pocket; therefore, the Insurance Companies have convinced our government not to allow the Injured Victim or his/her attorney to mention Insurance during the trial.  In fact, in many cases, if the word “insurance” is mentioned by the Injured Victim or his/her attorney, then a mistrial is called and the whole trial has to be restarted with a new jury!  What Governor Perry’s posted response fails to tell the Texas citizens is this:

•  Texas law does not allow an Injured Victim who brings suit to tell the jury that he/she will have to repay his/her health insurance company back in full from any amount of money that the  jury awards;
• The Judge, Attorneys, Plaintiff, Defendant, and all witnesses involved are required by law to protect the Insurance Companies by pretending to the Jury that Insurance is not involved in any aspect of the Injured Victim’s case;
• The law does not allow the Injured Victim to recover any portion of the health insurance premiums that he/she has paid for months or even years in order to maintain his/her health insurance.  In fact, not only can the health insurance premiums not be recovered from the defendant/drunk driver and/or his auto insurance company, but the law allows the health insurance company to both (1) take back any money that it has paid for the Injured Victim’s health care and (2) keep the thousands of dollars in insurance premiums that the Injured Victim has paid for the health insurance!  Talk about your double dipping!
• The Injured Victim is not even allowed to tell the jury that he/she has had to pay insurance premiums for his/her health insurance (much less how many  thousands of dollars those premiums have totaled).

In conclusion, our Governor has succumbed to the influences of the Insurance Companies at the expense of the (dwindling) rights of the Texas citizens.  June 15, 2007 (the date of Governor Perry’s veto) was a terribly sad day for Texas citizens.

Fort Worth doctor, Arthur Nilon Tallant, was honored by the Texas Legislature as the “doctor of the day” in April 2006, and again in January 2007.  Dr. Tallant plead guilty to 19 counts of “sexual performance by a child” in Hays County in 1997. Dr. Tallant was 64 at the time, and his victim was a 17 year old patient.  Dr. Tallant’s medical license was revoked that same year due to both his felony conviction and alcohol abuse, but was reinstated just four years later in 2001. 

The Texas Medical Board relies only on an “honor system” of physician self-reporting for criminal convictions.  Of course, (surprise, surprise) criminals aren’t too motivated by “honor” and therefore, may not report their own criminal conviction.  This was certainly the case with Dr. Tallant, for whom the Texas Medical Board continues to report no convictions.  Given the Texas Medical Board’s complete lack of effort in maintaining accurate information regarding the criminal history of Texas doctors, it’s not surprising that the Texas legislature was unaware of Dr.Tallant’s history as a sex offender when it first honored him in April 2006.   

Representatives Jerry Madden and Phil King  found out about Dr. Tallant’s felony conviction shortly after the April 2006 honors were bestowed and informed the House speakers office.  Nonetheless, the House of Representatives proceeded to honor Dr. Tallant again in January 2007.     We are running the risk that Texas is becoming a safe haven for bad doctors.”  — This was the response of Alex Winslow, who is the executive director for Texas Watch.  Texas Watch is a non-profit, non-partisan consumer protection group dedicated to advocating the rights of families in Texas.  You can also view the CBS news report, which includes interviews of Texas lawmakers and an attempted interview of Dr. Tallan.  

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.”