As part of his efforts to adopt more strict DWI laws, Austin Police Chief Art Acevedo has been routinely claiming that Texas leads the nation in drunk driving fatalities.  Today, the Austin American Statesman and Politifact put that assertion to the test and confirmed that it is mostly true.  On a raw numbers count, Texas far exceeded any other state.  According to the National Highway Transportation Safety Administration, Texas had 1,235 DWI fatalities in 2009.  The second place state, California, only had 950 deaths.  Sadly, this is one area where Texas is leading the charge.

Even accounting for the number of miles of Texas roadways, we’re still not very good.  Counting driving fatalities per 100 million vehicle miles traveled, Texas dropped only down to second (behind South Carolina).

Unfortunately, that means too many claims for personal injury lawyers based on wrecks caused by defendants driving while intoxicated.  And far too often these victims aren’t getting the legal help they deserve.  DWI claims aren’t just normal car wreck claims.  There are additional steps that lawyers can take to help bolster the value of the claim.  But as far as I can tell, many personal injury lawyers aren’t doing the work necessary to maximize the value for their clients. If you or a family member or friend has the misfortune of being hit by an impaired driver, make sure the lawyer you hire will do the work necessary to protect your rights.

This week, Jay Feinman, a Distinguished Professor of Law at Rutgers University, was a guest blogger at the TortsProf blog (one of my favorites, and not just because friend and fellow UT alum Bill Childs is one of the authors).  In his guest post, Professor Feinman explained one of the shifts in the insurance industry that helps explain why personal injury victims need lawyers:

All of these ideas are based on the assumption that insurance works — that companies assess risks, insureds purchase policies against those risks, and the companies pay claims that are within coverage.  Unfortunately, the facts about insurance are increasingly at odds with this assumption.  Most companies pay out claims most of the time, of course.  But more and more, insurance companies deny valid claims in whole or in part and force policyholders and tort victims to litigation to obtain the benefits to which they are entitled.

The economics of insurance creates this potential for opportunism.  Every dollar a company does not pay out in claims is a dollar it keeps in profit.  Outright denials, reduction of the amounts paid, and using litigation to diminish and deter claims potentially provides a greater benefit to a company than it loses in disappointed customers and negative reputational effect.

Insurance companies have always been subject to these temptations.  Since the early 1990s, however, the strategy has become more systematic and institutionalized across auto, homeowners, and disability insurance and extended even to commercial lines.

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The claims department has become a profit-center rather than solely the place that honors the company’s promise to pay what it owes, no more  but no less.

Professor Feinman’s statements echo what I’ve been preaching on this blog and website for quite some time.  When I started practicing a number of years ago, attorneys and adjusters would work together to exchange information and come up with a fair value of the claim.  Some of the time it didn’t work and suit had to be filed, but most of the time, it worked. 

That’s no longer the case.  In many cases, trying to settle a case pre-suit is a waste of time and effort.  We are having to file more and more cases and push those cases harder before the insurance companies come to the table with reasonable offer.  Sadly, the real victims are the personal injury victims.  They not only have to wait longer, but requiring litigation makes the cases much more expensive to pursue, and those expenses come directly out of our clients’ pockets.

I don’t normally post about legal opinions because I generally think my readers don’t care about the details of claims.  But last week, personal injury victims who have Medicare won a huge victory in a federal court.

If you read this blog or follow me on Facebook or Twitter, you’ve heard my gripes about Medicare.  When our clients who have Medicare settle cases, we have to reimburse Medicare for the amounts that they paid for our clients’ treatment that was related to the wreck, defective product, on-the-job injury, etc.

This is a problem for two reasons.  First, it slows the case down.  Medicare has a huge backlog, and despite continually trying to improve things, they just can’t seem to break through.  So if we settle a case, we may not be able to finalize it for months because Medicare won’t tell us how much they think we owe.

The second issue is that sometimes Medicare tries to take all the settlement proceeds.  We often find ourselves with cases where the settlement isn’t for the full value of the case.  Most of these situations arise when the defendant doesn’t have enough insurance  to cover the losses.  While the case is worth more, we are forced to settle for the amount of what insurance is available.  In many of these cases, the amount of insurance isn’t even enough to pay back Medicare for what they’re owed, much less any provide additional funds to our clients.  And that’s what this victory remedies.

The case at hand involved a patient at a nursing home.  The patient developed a wound in the nursing home.  The wound eventually became infected because of inadequate treatment, and the patient was take to a hospital, where he died after a three month stay.  Medicare paid approximately $40,000.00 for the patient’s hospital stay.

The nursing home only had $52,500.00 in insurance (which is ridiculous, I know).  Because that was all the insurance, the case settled for the $52,500.00. 

Medicare claimed that it was entitled to its full $40,000.00 (less a pro-rata share of attorneys’ fees and expenses), which would have left the decedent’s family almost nothing from the suit.

The family argued that the suit didn’t settle for its full value.  Because it didn’t settle for its full value then the all of the parties, including Medicare, had to take their proportionate hit on the reduction.  Medicare didn’t agree.

The family eventually filed suit against Medicare.   A hearing was held, and the Court determined that the true value of the case (had there been enough insurance) was $2,538,875.08.  Thus, because of the lack of insurance, the case settled for about 2% of its actual value.

The big decision from the Court was that everyone had to bare the loss.   First, the Court said that Florida law, like Texas law, allows some survivors of a deceased to make their own claims.   Thus, the recovery for those survivors belongs to the survivors and Medicare has no claim to it.  Second, the Court said that Medicare has to bear its share of the reduction.

The long and short of it was that instead of paying Medicare the amount Medicare wanted, the Court awarded Medicare $787.50.  This is savings that will directly go to the patient’s family.   As the Court also noted, this decision will help settle claims.  When Medicare is taking all the money, injured persons don’t have much reason to settle cases.  When the insured persons get something, then they have something to lose, and settlement becomes a more distinct possibility.

The entire opinion is here.

Can the engineer or architect who designed the collapsed balcony be sued?

Yes.  In many cases involving improper construction of a structure, the case against the designer (whether it’s an engineer or an architect) may be a better case than the case against the person that owns or is occupying the property.

The case against the designer is a negligence case.  To prevail, the injured person must prove that the engineer or architect designed the project improperly.  Those claims can show up in a host of ways.  For example, the designer may have made a miscalculation of the maximum load that the balcony would support (or the designer might not have done any calculations at all).  Or the designer might have made an error or inconsistency in the blueprints (we just settled a case like that last week).  Regardless of the error, the designer of a project can be liable for a victim’s injuries if the error was a cause of the problem.

The reason that these cases may be easier is that in a case against the owner/occupier of the premises, as we discussed yesterday, the injured person likely has to prove that the owner/occupier knew or should have known about the dangerous condition.  In a case against the designer, the injured person doesn’t have that burden — they don’t have to prove that the designer knew that it made an error in the design process.  That makes a big difference in some claims.

Claims against architects and engineers do have their own special rules in some instances  (for example, you have to file a special expert report when suing them, you may have less time than normal to sue them, and there may be protections for injuries that occur to construction workers during construction of the project), but none of those seem to apply in this case yet.

What are the potential lawsuit ramifications of the recent Austin balcony collapse?  I thought I’d take part of this week to write a few posts that outline some of the claims against potential defendants in the resulting lawsuits.  (If you haven’t heard about the tragic collapse, some news stories are embedded below. Thankfully — and remarkably — no one was killed.)

I wanted to start the posts off with a look at the potential liability of the condominium owner.  From news reports, the balcony had been recently installed by the owner.  Unanswered questions include whether permits were issued, whether an engineer designed the construction and whether the balcony construction was performed by a contractor or by the condo owners.

For this series of posts, I am going to assume the condo owner followed the proper steps and had a qualified contractor do the construction of a well-engineered deck.   I am also assuming that the owner was the person that used the condo.  If the owner rented the condo to someone else, then the person renting the condo would have the potential liability that’s discussed below.

Assuming all of that is true, any lawsuit would likely proceed against the condo owner as a premises liability case.  In this type of case, the injured person will have to prove the following things to prevail:  (1) the balcony posed an unreasonable risk of harm; (2) the owner knew or should have known of the danger; (3) the owner failed to make the dangerous condition safe and failed to warn about it; and (4) that the fall is what caused the injured person’s injuries.

In this case, there won’t be much fight about items (1), (3), and (4).  I think it’s pretty obvious that a balcony susceptible to collapse is dangerous.  I also think it’s fair to assume that the owner wasn’t warning people about the danger since a reported 30 people were on the balcony.

The real fight becomes on issue (2) the owner knew or should have known of the danger.   In some premises liability cases, you find evidence that the owner knew that a problem existed.  For example, in a business setting, the owner’s customers or staff people may have had previous problems or may have reported the condition and asked that it be repaired.   However, in this case, I think it’s unlikely that there will be such evidence.  The balcony was new so there wasn’t a lot of time for reported problems.  And because it’s a residential setting, there are not as many people coming through that could notify the owner (at least in writing that could be discovered later) of the problem.

Instead, I suspect the fight will center on the second part of the issue — whether the owner should have known there was a problem.  And in this case, I think a lot of that will be determined by how the owner went about having the deck constructed.  If the owner cut corners —  didn’t pull permits, failed to hire an engineer, etc. —  then that is strong evidence that the owner should have known there was a problem.  On the other hand, if the owner hired an engineer and a licensed contractor and they just didn’t do good jobs, then the owner might be able to argue that there was nothing to tip the owner off that any problem existed.

In the next few days, I’ll look at other potential defendants and the potential claims against them.

And, as promised, a couple of videos on the story are below:

UPDATE:  My original post made some assumptions that the owner and contractor jumped through the proper hoops.  New reports are coming out that the owner and/or builder failed to obtain building permits for the balcony.   That makes it a lot more likely that owner didn’t comply with a number of duties, as we assumed above.  The issues remain the same, but it will be much more difficult for the owner to try to argue that he/she was trying to do the right thing and shouldn’t have known about a potential problem.

I was having a talk with a fellow personal injury lawyer the other day, and he was griping about the result of a mediation.   This was a small car wreck case, and the insurance adjuster dropped the “bombshell” during the mediation that she discovered that the plaintiff had run a 5k race after the car wreck.  And not only had the plaintiff run the wreck, but the plaintiff posted a faster time after the wreck than he did the year before.

There are two things to learn from the story.  First, if you’re involved in a wreck or accident, the other side will investigate you.  In this day and age of the internet, it’s really cheap and easy for defense lawyers or insurance adjusters to spend a little time and find out a lot of information about your life.  If you have skeletons in the closet, they’ll find them, even in small cases.

The more important lesson is to be honest with your lawyer.  When we were remodeling our house, our builder used to say, “there are no problems, only issues.”  If a client tells his lawyer something bad, the lawyer can usually deal with it.  But when the client doesn’t tell the truth or fails to include something in the hopes that no one will ever find it, that often becomes a problem.  These types of problems ruin cases.  So if you’re injured, learn from others’ mistakes and tell your attorney the truth.

 Not being honest with your attorney is only one of many mistake you can make that can ruing your case.  If you or a loved one has been injured in a wreck, on-the-job injury, or otherwise injured by someone else, request a copy of our book, HOLDING WRONGDOERS ACCOUNTABLE: Avoiding Mistakes That Can Ruin Your Texas Accident Claim.  I think you’ll be glad you did.

I often have the misfortune of telling potential clients that I can’t help them because they didn’t come to us soon enough.  Clients often think they’re doing great to call us several months before a statute of limitations runs.

But that’s not always enough notice.  A number of cases require immediate attention.  For example, in a premises liability case, for best results, we need to be able to inspect the scene as close to the date of the accident as possible.  When conditions change, it’s hard, if not impossible, to go back and recreate who was at fault.  Sometimes clients can take photos and document the scene so that we do those types of investigations, but it’s safer to get the expert and attorneys out there before any changes are made.

And don’t get me started with trucking cases.  In a serious trucking case, the trucking company will have its experts at the scene, inspecting vehicles, etc within a few hours.  That’s a huge advantage.  An injured person obviously won’t be able to timely research a trucking case unless they hire an attorney early.

Even in some of the most basic car wreck cases, early investigation can be important.  Police officers investigate hundreds of accidents per year.  You don’t need to talk to them in every case, but when you do, you need to talk to them early so they remember the wreck you were in.

So that’s the answer.  Talk to a personal injury lawyer early.  Once you miss the time to do investigation, you can’t get that back.

Waiting too long to contact an attorney is only one of many mistakes that accident victims make that can hurt their claims.  If you’ve been injured in a Texas accident and you want to avoid those mistakes, order our free book HOLDING WRONGDOERS ACCOUNTABLE: Avoiding Mistakes That Can Ruin Your Texas Accident Claim.  We’re on a mission to make sure that insurance companies and other lawyers don’t take advantage of accident victims, and a lot of the advice in the book is designed to prevent that from happening.

A recent Ohio Supreme Court decision allows defendants in personal injury cases to introduce evidence that the plaintiff’s medical providers “wrote off” charges for the plaintiff’s care.   Most health insurance companies have agreements with medical providers that the medical providers will accept a reduced amount as payment in full for procedures.  For example, in the Ohio case, the plaintiff was billed $21,874.80 for care.  This is the amount that the provider would have charged a patient without insurance.  However, because of the insurance contract between the patient and the provider, the insurance company paid $7,483.91 and wrote off the rest.

The Ohio trial judge said only allowed evidence of the full $21,874.80 in charges, but the Ohio Supreme Court said that the evidence of the write off should have been admitted.  The opinion is here. 

A number of other states have held the opposite.  How do we deal with it in Texas?  Frankly, no one is sure.

Historically, Texas has not allowed in evidence of the write offs.  But in the 2003 legislative session, the legislature adopted a rule that reads:

In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.

What does that mean?  Without defining “paid” or “incurred” the statute is a model of poor draftsmanship.  Despite the statute being around for seven years now, courts still haven’t come to a good conclusion of what it means.  I can tell you that in most Travis County courts the judges aren’t allowing in evidence of the write off, but they will reduce the jury’s award for medical expenses after the verdict is rendered to equal the amount that was actually paid, including insurance payments, co-pays, etc.

The result of this is that in two hypothetical cases — one where a driver runs over an employed person with insurance and one where a driver runs over the same employed person without insurance — there will be two very different results due to the existence of health insurance.

But all of this begs the question, “Why should a bad driver, a dangerous doctor, or an unsafe employer get a benefit from your health insurance?”

When there are write offs, there are two possible outcomes.  First, the plaintiff could be awarded the full amount of the medical charges even though some are never paid due to the reduction.  This would be a benefit to the plaintiff.  Second, the plaintiff could be awarded the reduced amount, which would mean the defendant gets a benefit from the health insurance reduction.

So we’re faced with deciding which of two sides gets a benefit:  the side that purchased health insurance or had an employer purchase health insurance or the side that committed the wrong that resulted in the suit.  If you’re choosing between the two, why should the wrongdoer get the benefit of the insurance?  I’ve had a discussion about this law with a number of different people, and I’ve yet to hear any good reasons why benefits of health insurance should not go to the innocent party, but should instead go to the wrongdoer.  If you have suggestions, let me know.

And a h/t to Nashville, Tennessee injury lawyer John Day & his blog Day on Torts for the link to the opinion.

If you’re injured in an accident, some hospitals and other medical providers would rather forego making a claim on your health insurance and wait until the end of the case to receive payment out of any settlement or judgement. 

“Why?” you might ask.  Medical providers have contracts with health insurance companies, and under those contracts, the health insurance companies have negotiated lower rates for procedures than what the general, uninsured public would pay.

For example, if you go into a hospital and the charges are $5,000.00, the hospital and the insurance company might have an agreement that the insurance company only has to pay $2,500.00 for those services.  To avoid those reductions, many hospitals and other medical providers have been adopting policies to not bill health insurance if the treatment results from a car wreck or  other event where the patient may have a legal claim.

This policy creates a problem for personal injury victims.  At the end of the day, once the case is resolved, the victim has to use the proceeds from the settlement or judgment to pay the hospital the entire $5,000.00 instead of only being obligated to pay the insurance company the $2,500.00 (and in many instances, we can even get that reduced).  Thus, a medical provider’s failure to submit claims to a health insurance company costs our clients money. In many cases, those amounts are so substantial that this issue makes the difference between a settlment going forward or not.

It’s also against the law.   Chapter 146 of the Texas Civil Practices and Remedies Code requires hospitals to submit bills for payment under available health insurance policies in a timely manner.  A hospital that doesn’t submit a bill to an available health insurance policy in a timely manner “may not recover from the patient any amount the patient would have been entitled to receive as payment or reimbursement under a health benefit plan or that the patient would not otherwise have been obligated to pay had the provider complied with” the law.

So what’s a patient to do?  First, make sure that the hospital or medical provider knows about your health insurance coverage.  A number of providers seem to take a “head in the sand” approach and make a specific practice of not asking about insurance.  That way they can claim that they didn’t know the health insurance was available.  Don’t let them get away with this.  Make sure that you have some proof that they hospital or medical provider has notice of your health insurance.  For example, you may want to fax them a copy of your insurance card.

If the hospital or medical provider has the information and still won’t submit a claim, you can always file the claim yourself.  Simply take the bill, get the insurance company’s contact information off your card, and fax the bill to the insurance company and ask the insurance company to pay it.   It’s a hassle, but it gets the job done.

Finally, let me say that there is a potential downside to this.    In this day, when the “paid vs. incurred” rule is in play, some lawyers advise their clients not to submit bills to health insurance because it might decrease the damages ultimately awarded.  However, I don’t hold those beliefs.  In most courts, judges are dealing with this in such a way that the damages shouldn’t be affected.  More importantly, I generally tell clients not to modify their lives based on how it’s going to affect a case.  You never know what’s going to happen at a trial.  If you have health insurance that can pay bills, you’re generally bettter off using so you don’t have those unpaid bills hanging over your head should something go wrong with the case.

This is from another Google search that someone used to find our website.

I’d like to tell you unequivocally that the answer to the question is “No.”  But I can’t  (after all, we do a lot of legal malpractice work also so we know what lawyers are capable of doing).   In truth, it’s really rare than a personal injury lawyer tries to scam a client in a settlement, but it does happen.  (Don’t let that be an indictment of lawyers, in general, or personal injury lawyers, specifically.  Every profession has a few bad apples.  I’d like to tell you lawyers are exceptions to that rule, but we’re not. )

The more important question may be, “What can clients do to protect themselves and minimize the risk that they will be victims of a lawyer’s scam?”  And the best answer is to be informed.  Most personal injury cases are handled on a contingency basis.  In general, the attorney will receive the settlement funds or funds following a judgment and deposit the money in the attorney’s trust account.  Once the funds have cleared, the attorney will disburse the funds to all of the parties entitled to a portion of the settlement funds.  In general, the groups that generally receive part of personal injury funds are: 

1.  The lawyers (who receive their fees and reimbursement for the expenses they advanced);
2. Medical providers (who might have outstanding balances that are paid out of the funds); and 
3. Subrogation interests (paying back health insurance companies,  Medicare, Medicaid, or any other group that may have paid part of the client’s medical expenses and/or paid for any of the client’s lost wages).

After all of these items are deducted, then the remaining funds are disbursed to the client. 

So how do clients protect themselves?  Make sure the calculations are done right and ask for documentation.  Clients should make sure that they understand their fee agreement with their attorneys so that the clients understand how the fees are calculated.  Clients should also not be afraid to ask for documentation to support the deductions.  Reputable personal injury lawyers should not have have any problem providing an accounting of expenses, including showing receipts and/or canceled checks for expenses.  Similarly, for payments made to medical providers or subrogation interests, the clients should be comfortable requesting copies of the checks written to each of these entities.  If the client still doesn’t trust the lawyer, the client may also call the medical providers or the subrogation interests to make sure that the payments were actually made.

Taking these steps will help protect the client and, if the lawyer is trying to cheat the client, help the client figure that out.