Texas Personal Injury Law Blog

I frequently have potential clients who contact me with questions about who is responsible for their medical bills following a car wreck.  These individuals are often under the impression that they should not use their Health Insurance to cover medical bills for treatment of the injuries that were caused by the automobile accident.  They also frequently believe that the at fault driver’s Automobile Insurance will pay for their medical bills directly.  Unfortunately, it is extremely rare (in fact, almost unheard of) for the at fault driver’s Auto Insurance Company to pay for the injured person’s medical bills directly or quickly reimburse the injury victim for these expenses.

Auto Insurance Companies are in business to make money and, as a result, their objective is to pay injury victims as little as possible for their injuries.  Unfortunately, most Insurance Companies will not reimburse an injured person for medical expenses until the injured person has fully completed all of his or her medical treatment and has agreed upon a settlement amount to cover ALL of the injured person’s losses due to the injury (such as lost wages, medical expenses, and any future lost wages).  This approach creates a tremendous problem for people who do not have Health Insurance.  Often the individual cannot afford the necessary health care.  The Insurance Companies see this as a great windfall for them, because if the injury victim cannot afford to get the necessary health care, then the Insurance Company does not have to repay the injury victim for those medical expenses!  It is a terrible scam that Insurance Companies use to take advantage of innocent victims, but unfortunately in Texas it is legal.

After an auto accident, treatment of your injuries should be your number one priority.  If you have Health Insurance, by all means use it!  If you do not have Health Insurance, there are other options that you can explore.  First, you should check to determine whether you have Personal Injury Protection (PIP) under your own Automobile Insurance.  This type of coverage is intended to be more accessable and can be used to cover the costs of your medical care.  Some health care providers will bill directly against your Personal Injury Protection policy, although it is advisable to speak with an attorney before giving your medical providers your PIP policy information.  PIP policies typically provide between $2,500 and $10,000 in coverage (with $2,500 being the most common), which frequently is not enough in the event of a serious injury.  If you do not have Health Insurance or Personal Injury Protection, it is advisable to contact an attorney to discuss other possible options.  Some health care providers will accept a Letter of Protection from your attorney, which essentially is a promise to the health care provider that you will pay the health care provider for your medical expenses when your injury case is resolved.

If you are injured in an accident and you use your Health Insurance to cover your medical expenses, you can expect your Health Insurance Company to later contact you by mail, asking if your medical treatments are the result of an injury.  This is the first step that Health Insurance Companies take toward asserting their right to subrogation. (Subrogation is an issue that is discussed further in other posts.)  If you receive a letter from your Health Insurance Company asking if you have been injured in a car accident or other type of accident, contact your attorney for advice before making any response.  Do not perceive this as a reason to avoid using your Health Insurance to cover the expense of your medical treatments . . . as I said before, your medical care is priority one after a car wreck or any other type of accident and using your Health Insurance is the best way to make certain that your medical treatment is not delayed. 

My husband recently suffered a serious dog bite that resulted in him being hospitalized for three days.  Thankfully, he will make a full recovery.  The ordeal raised great concerns for me, not only because my husband was a victim of a dog bite injury, but also as a dog owner. 

Basically, a dog owner can be liable for injuries and damages caused by his or her dog if:

1)  It is established that he or she owned or had possession of the dog.  This can go beyond our typical understanding of ownership — it can include such things as keeping an animal (such as taking in a stray dog) or simply allowing the dog to be kept at a home or other property that the individual owns.  This means that under certain circumstances a landlord can even be held liable for the actions of a tenant’s dog.

2)  The dog had vicious or aggressive tendencies that were not generally normal for dogs. 

3)  The owner either knew or should have known that the dog was dangerous.  This is most commonly show by demonstrating that the owner was aware that the dog had bitten someone before.  If the dog has never shown dangerous tedencies before, then the owner will most likely not be liable for an injury caused by the first attack the dog has ever made. — Nonetheless, keep in mind that there is a huge difference between being liable and being sued!  The owner may very well be sued for the dog’s attack.  The fact that the dog had never shown vicious tendancies before the attack will then be used as a defense by the dog owner and, if proven, may be accepted by the jury as sufficient to find that the dog owner is not liabile for the dog’s actions.

4)  The dog’s dangerous tendencies caused the injured individual’s damages.  This simply means that the injured individual has to show that the bite actually caused the injuries that he or she is complaining of, such as scarring. 

These same basic rules also apply to other domestic  animals, such as cats, horses, or birds (you’d be surprised what a parrot bite can do!).  There is a much more severe standard that applies to owning a wild animal, like a raccoon or wolf.

Anyone who owns a dog or other domestic animal should take their responsibilities as a pet owner very seriously.  Make sure that your pets are securely maintained by keeping your home and fences secure and in good condition.  Good training is also extremely important, whether you go through a formal training class or simply do at home instruction.  Your dog needs to be properly socialized and trained to help ensure that the dog will be safe to expose to other people — especially children. 

Yesterday was my daughter’s 16th birthday.  We celebrated with a party out on Lake Lewisville.  It was a wonderful party and everything went off without a hitch — but it did bring to mind how important boating safety is and a few thoughts and tips that I could pass along to my readers.

At last count, Texas had over 600,000 registered watercraft that are used on the largest volume of inland water anywhere in the United States. With all of these boats on all of these lakes and rivers (not to mention the Gulf), accidents are not uncommon. Boating accidents can involve collisions between boats and between boats and personal watercraft, collisions between boats and obstructions such as rocks and tree trunks, and boats that capsize and trap people underneath. However, the most common type of boating‑related injury occurs when people fall off of a boat. The injuries caused by boating accidents are as serious as any that occur on land, and they include everything from broken bones and knee injuries all the way up to serious brain injuries and drowning.

According to the Texas Parks and Wildlife Department, Texas averages about 150 serious injuries and about 50 deaths every year in boating accidents.  The typical boating death involves:

1. an open motorboat;
2. people boating between noon and 7 p.m. on a weekend;
3. the victim falling overboard; and
4. an operator between 26 and 50 years of age.

Many boating accidents also involve the overuse of alcohol—statistics show that alcohol is a factor in about half of all boating accidents, and that the use of alcohol while boating more than doubles the risk of having an accident.

The number one thing you can do to protect yourself when boating is to wear a life jacket. Like wearing your seatbelt, the use of a life jacket takes little time or effort but significantly increases your chances of surviving an accident, especially if you fall into the water. In fact, over 85% of the victims of boating accidents who drown are not wearing a life jacket at the time. Be sure to wear your life jacket even if you are a good swimmer, because even a good swimmer can get tired, suffer from a cramp, or be caught in an unexpectedly strong current. Look for one that is approved by the Coast Guard, and do not rely on water wings, inner tubes, or other inflatable toys. The life jacket you choose should have the appropriate rating for a person of your size. A life jacket that is too small will not support you and one that is too big may slip off unexpectedly. Carry a few extras, in case someone falls in while not wearing one or in case you come upon someone from another boat who does not have one on.  Remember: The law requires that all children younger than 13 years old wear a life jacket at all times when the boat that they are on is moving. Also, riders of all ages must wear a life jacket while riding a Personal Water Craft (PWC or jet ski). Make sure that children have life jackets sized for their smaller bodies. It is also a good idea to carry other kinds of gear that will allow you to help someone who has fallen into the water, such as spare ropes and a first‑aid kit.

The other major thing you can do to prevent boating accidents is to control the use of alcohol. Many people who would never drink and drive think nothing of having a few drinks and then taking their boat out for a spin. The fact is that boating while intoxicated (BWI) is a crime just like driving while intoxicated, and the same blood‑alcohol level of 0.08 means that you will be presumed to be an impaired boater. If you are caught BWI, you can be arrested, jailed, and even lose your driver’s license.

If you are involved in a boating accident, it is a good idea to report it to the Texas Parks and Wildlife Department or (if the accident occurs in coastal waters) to the Coast Guard. If you have been injured in a boating accident through the negligence or carelessness of another, you might be entitled to be compensated for your injuries. The facts of each case will differ, and you will need to speak with an experienced lawyer to determine what your rights are.

BOATING SAFETY CHECKLIST

• Make certain you know how to safely operate the watercraft you are piloting. Consider taking a boating safety class.
• Make sure that your watercraft is well cared for and in good mechanical shape before taking it out on the water.
• Always wear a life jacket, and remember that children under the age of 13 are required to wear a Coast Guard‑approved life jacket while underway.
• Carry extra flotation devices in case you need to perform a water rescue.
• Follow the same rules that you would while driving your car: Operate the watercraft at a safe speed, do not overload it, and do not use alcohol. Boating while intoxicated is a crime that is treated in much the same way as driving while intoxicated, and it carries similar penalties.
• Keep a sharp lookout for submerged objects, other boaters, and, especially, personal watercraft such as jet skis.

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.

            Trasylol is the only FDA‑approved drug for the prevention of blood loss during heart surgery. By boosting the body’s ability to stop bleeding, it can help reduce the need for blood transfusions. Unfortunately, it can also have dangerous side effects, including kidney failure, heart failure, and stroke.  A recent study shows that Trasylol may double the risk of kidney damage, as well as increase the risk of heart attack by nearly 50%.  The FDA recently issued a Public Health Advisory urging physicians who use Trasylol to carefully monitor patients for the occurrence of toxicity to the kidneys, heart, and central nervous system. The FDA also revised the labeling requirements to strengthen safety warnings and limit usage of the drug to specific situations.  If you have suffered kidney failure or heart problems following heart surgery, you may have been treated with Trasylol and you may be entitled to compensation for your injuries. Contact Dina Steele at  Steele Law to discuss your possible personal injury case.

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.”