Texas Personal Injury Law Blog

Nursing home neglect and abuse are a tremendous problem in America.  This problem is even greater in Texas, where the average standard of care provided by nursing homes is significantly lower than the national standard of care.  I’ve worked on horrible nursing home cases, such as a case in which the patient was dropped by by the nurse’s aids and then kicked repeatedly for screaming from the pain of the resulting broken bones.  The possibility that each of us could eventually be left in the care of a nursing home during our elderly years is an extremely frightening thought.  Yet, when a loved one needs around the clock care and supervision, nursing home care may be the only viable option.  In that case, how can we determine which nursing homes offer the best level of care for our loved ones?

Unfortunately, there are no guarantees when choosing any nursing home facility — even the very best rated facility can be found to engage in abuse or neglect.  Nonetheless, there is consumer information available to allow individuals and their family members to evaluate and compare nursing homes so that an informed decision can be made.

The Texas Department of Aging and Disability Services is a good place to look when considering a nursing home.  This site allows you to locate and compare nursing homes in a given area.  The information provided is based upon past inspections of the facilities.  Each facility receives an over all score of 0 to 100, with 100 being the highest possible score.  The inspection information for the facility can be reviewed in order to gather information on past violations and how the facility compares to the national and state averages on particular points, such as the average amount of skilled nursing care received by each resident per day.  The site is not the easiest to maneuver.  In order to conduct a search, click on the “Find and Compare Longterm Care Providers” link to the left of the homepage screen and then select the type of facility that you are interested in, such as “All Free-standing Nursing Homes.”  On the next page, select whether you want to search by county, city, zip code, etc. and put in your search parameters.  I suggest that you start with county searches, as these searches will allow you to compare a greater number of facilities per page in a given area.  When reviewing a nursing home’s investigation summary, be sure to click on the “Supplemental Page” and “Nursing Home Compare” links at the bottom of the nursing home’s investigation page.

Of course, gathering this information should just be the beginning of your investigation of a particular nursing home and determining whether the facility is the best place for your loved one.  You should definitely visit the facility and ask questions about how the facility is suited to meet your loved one’s particular needs.  Make certain that you also visit more than one facility so that you will have a better basis for comparing them.

 After you have selected a nursing home for your loved one and your loved one is living at the facility, be certain to visit often.  The single best way to prevent abuse and neglect is to visit often and make certain that the nursing home staff knows that you are checking in on your loved one regularly.  Talk with your loved one about the care that he or she is receiving and investigate further if your loved one gives unclear or evasive answers.  In the case of nursing home abuse, patients are frequently afraid to disclose what is happening to them.  Also, be sure to physically examine your loved one regularly.  Bed sores are a tremendous problem in nursing homes and can be deadly.  I’ve seen many cases in which the family didn’t realize that their loved one was developing a bed sore because they did not see the bed sore on their loved one’s legs or torso, which were typically covered by blankets during the family members’ visits.

             When dealing with insurance companies, it is important to understand a few of their secrets so that you can get the settlement you deserve: 

• Insurers make money in part by denying you benefits. They may try to discourage you from seeking medical treatment (especially from chiropractors), or they may tell you that rental car coverage is limited to a set number of days. In most cases, this is not true, and, if you are not at fault, you are entitled to have all of your reasonable damages and expenses covered.

• Insurance companies track every claim you make. When dealing with an insurance company, assume that it knows the history of every claim you have ever made, even if a claim was with a different company. 

• The adjustor is not your friend. Despite his protests, he is not there to help you—he is there to reduce the insurance company’s payment as much as possible. You are also not required to give an adjustor a recorded statement or a medical authorization. If you feel you are not being treated fairly, it may be time to get an attorney involved.

I’ve written a number of posts on insurance subrogation and how our government is protecting the insurance companies at the expense of innocent victims.  The tragedy of insurance subrogation is that if a person is injured as a result of the negligence of another person (such as through an auto accident or medical malpractice) and the victim brings suit against the person who caused the injury, then the victim’s health insurance company sweeps in to snatch up the money received from any settlement or verdict.  If the health insurance company falls under the Federal Government’s definition of an ERISA plan (which most do), Federal law says that the health insurance company is entitled to a full reimbursement of any money that it paid out for the victim’s medical treatment — Even if this means that the victim is left with nothing.  Of course, the health insurance company does not pay the victim back for the thousands of dollars that the victim paid the health insurance company in premiums!  The link below is for a news video detailing a case in which a widower was the victim of ERISA subrogation.  The news story gives an excellent portrayal of how insurance subrogation applies to the detriment of innocent victims.  I highly recommend this video:

 News Cast on ERISA Subrogation Victim

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. 

In a rare win for consumers, a three judge federal appeals panel in California found that Experian was negligent in violating provisions of federal and state credit reporting laws.  In fact, the appellate court refused to remand the case back to the trial court, stating that “no rational jury could find that the company wasn’t negligent.”

Unfortunately, the facts of this case were not unusual.  The plaintiff, Jason Dennis, had been denied a loan.  After pulling his credit report, he discovered that Experian had erroneously reported a court judgment against him.  Mr. Dennis contacted Experian in effort to correct the erroneous report, but Experian refused to make the correction. 

A Boston-based consumer advocacy group known as U.S. PIRG conducted a survey in 2004 which found that almost one-third of all credit reports contain errors which are serious enough to result in the denial of employment, insurance or credit. 

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. 

Can you believe it?!  Allstate has announced it’s intention to raise the rates charged to its policyholders despite Insurance Commissioner Mike Geeslin’s rejection of Allstate’s 5.9% rate hike earlier this week.  Beginning today, every homeowner insured by Allstate will see at least a 5.9% increase when they renew their homeowner’s policy.  Policy holders living along the coastline will see even steeper increases.  This comes amid national media attention about Allstate’s abusive claims handling practices and after years of overcharges by the insurance industry in Texas.

The greedy insurance companies just can’t seem to give it a rest.  After reporting one of its most profitable years of the decade, Allstate announced plans this past June to increase its rates for Texas Homeowners by 6.9%.  Thankfully, that rate increase was rejected by the Texas Department of Insurance.  Then, just weeks later, Allstate volleyed back by announcing it’s intent to raise Texas Homeowner rates by 5.9%.  — And they call them the “good hands people” . . . maybe for picking your pockets! 

Thanks to public outcry from Texas citizens and pressure from Texas Watch activists,  Insurance Commissioner Mike Geeslin recently rejected Allstate’s proposed 5.9% rate increase.  The commissioner also ordered the company to submit any further rate changes to the Texas Department of Insurance before they could take effect.  This is good news for Texans . . . but I’m sure the battle isn’t over.  It doesn’t take a crystal ball to see a 4.9% proposed rate increase in Allstate’s near future.  Help keep the pressure on by contacting Mike Geeslin and letting him know where you stand on this issue.  The above link makes contacting Insurance Commissioner Mike Geeslin quick and easy, giving you a voice on this issue while taking only a few seconds of your time!

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.

A Comprehensive Loss Underwriting Exchange (CLUE) report contains information on insurance claims that you have made, as well as the loss history for a particular property, such as your home or car.  This allows the insurance companies to not only find out what claims you have filed in the past, but also identify claims that may have been filed by the previous owner of your home — claims that you may not even know about!

Insurance companies use CLUE reports much like credit reports when setting your insurance rates or determining whether to even offer coverage.  Information gathered from your CLUE report may also be used by the insurance companies as a weapon against injury victims — they do this by asserting that the victim’s injury is related to a previous accident or injury (which the insurance company discovered from the injury victim’s CLUE report).

 Just as it is important to review your credit report for errors, it is also important to check your CLUE report.  Finding out what the insurance companies are reporting and accessing on your CLUE report can bring you one step closer to evening the playing field when you are pursuing a claim for injuries or shopping for insurance.

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. 

            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.