Sunday’s Austin American Statesman had a wonderful article about hospital liens, a problem that can really muck up a car wreck or other personal injury claim.

Texas law provides that if a person is injured in an accident and is admitted to a hospital within 72 hours of the accident, then the hospital has a lien against any recovery for the amount of the care. (You can read the entire statute here.)

That sounds reasonably fair — hospitals should get paid for their services.  Except that many hospitals are abusing the statute in an unfair manner. 

There are two problems in the way that hospitals abuse the statute.  First, they charge ridiculous prices.  When you go to a hospital, you don’t get to sit down and negotiate prices or look at a menu with the services and prices next to them and choose what you want.  The hospitals decide what treatment you need (as they should) and then they also get to set the prices.  Unfortunately, the prices that they set in the personal injury context are ridiculously high prices that no one really pays.  It’s a pie-in-the-sky number that they try to force on injury victims.

Second, they abuse the system by trying to charge these prices even when other insurance or other payment sources, such as Medicare, are available.  Because the amounts for the services are so much higher than what an insurance company or Medicare would pay for the same services, hospitals often forego payment from these sources and then file the lien hoping to get the inflated prices from the injured victims. 

In the health insurance context, the Texas legislature has tried to fix the law, passing a statute that requires hospitals to submit claims to available health insurance companies when the coverage is available.  However, there is a bit of a debate about whether that law applies to Medicare or other similar proceeds.  As a result, hospitals are refusing to bill Medicare and similar providers in this context to try to get the higher amounts from you.

We need the legislature to again step in and clarify that the lien is not valid if the hospital fails to submit the claims to Medicare.  Until then, our only course of action is to sue the hospital for a declaration that the charges are unreasonable.  This causes all the parties to incur unnecessary attorneys’ fees and just causes unnecessary stress for injured victims, but it’s the only mechanism for resolution we currently have.

I do encourage you to read the article.  They have more time to write about the problem, and they share stories that really show how it affects you as victims.  Also,  representatives of one of Austin’s most aggressive lien filers make some very questionable statements in the article about their practices.  In some, but not all, of those cases, the author of the article calls them on it. 

I’m just thankful that this problem has reached the popular press.  Maybe the publicity will cause some changes.

A favorite insurance company ploy in personal injury cases is to request that an order from the Court that the plaintiff be required to undergo an “independent” medical exam — an exam by a doctor hired by the insurance company.

Despite the implications of the name, these are not indpendent.  The doctors are hired by insurance companies and these exams are filled with fraud.

Back in 2009, the New York Times ran a long story exposing many of these exams for the fraud that they are.  Among other things, the report found doctors reporting on tests that were never done, given written reports saying the patient had no injuries when the videotaped tests and exams proved otherwise, and doing cursory exams. 

At the time, I wrote a long blog post that summarized the article, The New York Times Tells The Story Behind “Independent” Medical Exams, and you can read that post for more information. 

But many times, pictures (and videos), tell a story better than words.  And I recently saw a tongue-in-cheek video that was an example of an “independent” medical exam.  It would be a lot more funny if it wasn’t so darn true.

I always encourage accident victims to talk to personal injury lawyers as soon as possible to make sure that their rights are protected, but it’s even more important now.

As you may know, the Texas legislature is in session.  What you probably don’t know is that yesterday was the Texans For Lawsuit Reform’s lobby day where they unleashed their traditional platform of ways that they want to limit your rights. 

I don’t know what’s going to happen with any of this legislation, but rest assured that none of it will likely help personal injury victims (with the exception of their proposal to stop barratry — solicitation of personal injury clients by unscrupulous lawyers).    There’s also no telling when any of these attempted reforms will go into effect.  In the past, tort reform litigation has gone into effect at different times — some go into effect immediately upon signing by the governor and some have gone into effect only at some later date.

Regardless, personal injury victims should start talking to potential lawyers as soon as they can.  You want to make sure that you and your lawyer have enough time to investigate claims so that any lawsuits can be filed before any new tort reform laws go into effect.

If you haven’t been paying attention, the Texas legislature is in session and facing a huge budget shortfall — with most estimates predicting a shortfall between $15 and 27 Billion.  Because the Republican leadership is pledging not to raise taxes or tap into the state’s rainy day fund, the balanced budget will only be achieved through significant cuts and creative ways of raising  additional funds (somehow this is different than a tax increase).

One of the creative funding mechanisms may help reduce the number of Texas car wrecks.

How?

One of the proposals to raise more money contained in the House of Representatives’ budget is to ban the use of wireless communication devices while driving — in other words, no more texting while driving or talking on a cell phone while driving. If this is adopted, it will significantly improve the safety of Texas roadways.  I’ve often written about the dangers of texting while driving  (see a collection of some of my posts on texting while driving).    It is a real threat, and making it illegal will likely help make the roads safer. 

And how is this related to the budget?  The Legislative Budget Board estimates that this move will generate $2.3 million.  They’re not clear on how that will occur, but I’m guessing that it is through expected fines for those that will continue to violate the law.

I think this is also an interesting study on how to position legislation.  For years, some legislators have championed the idea of banning cell phone use while driving because of the safety issues.  As a safety issue, the idea has never received much traction.  But if it now passes based on the argument that it’s a money making idea, it will be a telling lesson about the legislature’s priorities.

There was a horrific car wreck yesterday morning on Highway 290.   A pickup truck driven by Rudy Cruz had a collision with an electricity truck driver.  Both Cruz and the electricity truck briefly pulled over.  But then Cruz took off again and ended up driving on the wrong side of 290.  He hit a an Acura driven by Dr. Bishal Anand and then hit another pickup truck, driven by Carl Bonn.  Sadly, Dr. Anand and Mr. Cruz were both killed.

From a civil liability standpoint, this is obviously a car wreck case. 

But the thing that struck me, other than the obvious tragedies with the deaths involved, was the damage to the vehicles involved.  One of the vehicles was literally ripped apart.  It isn’t supposed to happen that way.

In tragic cases, it’s easy to spot the easy car wrecks and leave it at that.  But as attorneys, we need to look farther.  In many cases, such as this one, an attorney might ask whether the vehicle involved held up like it was supposed to.  These days, vehicles are designed to withstand collisions and protect those inside of vehicles.  When they fail to do that adequately, then there might be a products liability case against the vehicle manufacturer.  These types of cases are called “crashworthiness” cases — and the issue is whether the vehicle was reasonably well designed to stand up to crash forces. 

An attorney might also look at the seat belts — did the seat belt stand up to the collision like it is supposed to?  Or a personal injury attorney might investigate to see whether there were other factors that might have contributed to the wreck. 

In this wreck, it doesn’t sound like many of these factors will apply.  But a personal injury lawyer has to keep an open mind to really analyze when a car wreck presents more than just a car wreck case.

What good news could there be for victims of car wrecks? 

It’s all about insurance.

Beginning January 1, 2011, all new Texas auto insurance policies will require higher minimum limits.  What does this mean to auto accident victims?

In many cases, it will mean more financial compensation to put the victim a little bit closer to being fully compensated for his or her injuries.

The limits of insurance are the maximum amount that an insurance company may have to pay out for any wreck, regardless of how bad the victim of the wreck is hurt.  Currently, the minimum bodily injury limits that drivers are required to purchase are $25,000 per person or $50,000 per accident. 

The ”per person” limit means that in any wreck the most that the insurance company will ever have to pay an individual for the individual’s injuries sustained in a wreck is $25,000, regardless of how bad the individual is ever hurt.  If the injured victim has $25,000 in damages, then the insurance company is required to pay the $25,000.  But if the injured victim has $50,000 or $100,000 in damages, the insurance company is still only required to pay the $25,000 limit of its insurance.

And the “per accident” limit means that the most the insurance company would ever have to pay out for any one wreck, regardless of the number of individuals injured in the wreck, is $50,000.   If three people are injured in a wreck, and each have damages of $25,000, then the insurance company only has to pay $50,000 total, and someone has to work with the injured victims to allocate those funds.

Effective January 1, 2011, the minimum limits for all new policies in Texas will be raised to $30,000 per person and $60,000 per accident.    That change is significant.  The $5,000 difference (a 20% increase) in many cases will make the difference between the victim being able to recover full compensation for medical expenses or lost wages. 

This benefit also protects at fault drivers.  In addition to the injury limits going up, the property damage limit will also be increasing.  As the prices of cars and car repairs increase, the increase limits will provide additional protection for drivers who are involved in wrecks that hurt another vehicle, but not another person. 

And the cost for this benefit is small.  Insurance industry experts suggest that the increase cost of rates will be miniscule, if rates increase at all.

So this is a great change for all Texas drivers that will provide additional protection for all of us.

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.

You never know when a defective product may cost you your life. The man in this case never saw this accident coming.

This case was disturbing, as it deals with product liability issues that go right to the heart of consumer trust and confidence. This was a single-vehicle rollover that killed a pregnant woman and her child and a teenage boy, and injured six other kids. The tread of the group’s left rear SUV tire separated, causing the driver to lose control. The vehicle then spun out and rolled into the median of the highway before coming to a halt in some brush.

As the 2003 Ford Explorer was rolling down the highway, three people were ejected. Six of the children in the vehicle were not wearing seat belts. The pregnant passenger and her unborn baby were pronounced dead at the scene and a 14-year-old boy, who made it to the hospital alive, also died due to his injuries. The other children injured ranged from 10 to 17 years old and the driver was a 45-year-old man.

There are a lot of questions in this case, but perhaps the most important one asks what happened to the left rear tire? It may have been defective, and if that is the case, the victims of this crash may file personal injury lawsuits, or in the case of the deaths, wrongful death lawsuits. Negligence would be at the center of the suit – negligence from the tire manufacturer for poor-quality, shoddily made tires that could suddenly separate without warning.

Unfortunately, there are far too many things on the market these days that have serious potential to harm consumers. Defective tires are just one of hundreds of products that have failed to protect those who bought them in good faith.

As the law relates to product liability, there are usually several claims that may be brought against manufacturers. These include negligence, consumer protection claims, breach of warranty and strict liability. These laws are different from state to state and it’s best to ask a competent Austin personal injury lawyer what is applicable in your state if you feel you have a product liability claim. An Austin accident lawyer will outline the elements needed to take a successful case to verdict.

The three major product liability types are failure to warn (marketing defect), design defect and manufacturing defect. Quite often, a case may fall into more than one area. For example, in this particular case, if the tire is proven defective, the flaw may fall into the manufacturing defect and/or design defect categories. This is why an investigation is conducted in cases like this to determine the cause of an accident. For example, a plaintiff’s case could be pled under the doctrine of strict liability for defective design.

If you have had something similar happen, call a skilled Austin personal injury lawyer and find out your rights and what is needed to file a lawsuit.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

One of the most confusing things about wrongful death compensation is how it is calculated.

It’s hard enough to handle the fact that you suddenly lost a loved one due to the negligence of another, let alone understand how to calculate wrongful death compensation. These cases definitely need the skill of an experienced Austin personal injury lawyer to navigate the choppy waters surrounding death calculations and how an award is translated to present day dollars.

Texas wrongful death claims are unusual. When a person is wrongfully killed, the claims are governed by the Texas Wrongful Death and Survival statute. This statute describes who can sue in a death claim and what damages they may recover.

When a person is wrongfully killed, the person’s estate has a “survival claim.” The estate has the right to seek damages for any medical or funeral expenses that the person incurred as a result of the incident, plus claims for any pain and mental anguish the deceased might have experienced before his or her death.

The statute also allows some family members to make a “wrongful death” claim. In Texas, the only people that can make a wrongful death claim are the deceased’s spouse, children and parents. The spouse and children get to ask for damages of pecuniary loss (loss of care, maintenance, support, services and advice that the person would have provided), loss of companionship, mental anguish, and loss of inheritance. Surviving parents may also seek these damages, except the loss of inheritance damages.

Needless to say, it can be extremely confusing and complicated.

Loss of inheritance is based on the lost income of the person killed. Future lost income is usually figured out based on the amount of income a victim would have earned had they not been killed. This may be calculated by taking the deceased’s income when they died and then multiplying it by the years left until retirement (and finding a formula to compensate for increases in income the person would have received) or until their expected death. As you may have already guessed, retirement ages differ from one person to the next and when a person dies is based on complicated actuarial tables.

An example of how this would work would be a 50-year-old man making $40,000 a year when he was killed and was not banking on retiring for another 15 years. That individual’s income, when he was killed, would be multiplied by the number of years he had left to work. That would be $40,000 x 15 years which would make his future losses of $600,000 (give or take).

The fly in the ointment is accounting for raises the person would have received and reducing the overall value to present day dollars because Texas law requires awards of future income to be “discounted” to present value. In many cases, one of the biggest fights is the fight among each side’s economists arguing about the way these two calculations should be done.

Something to remember is that wrongful death compensation figures are not always calculated the same way simply because of the presence or absence of various factors may be different in each case. The only way to get a good idea of what compensation may be in a wrongful death case is to discuss the matter with an Austin personal injury lawyer. They would be able to outline how the process works and what you could expect to see during the course of the trial.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

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.