Texas Injury Lawyer Blog

Most of my clients are nice, responsible people who have suffered significant injuries through no fault of their own. They would have liked to have been able to resolve the matter directly with the liability insurance carrier and made substantial efforts to do so. They made the decision to hire a lawyer as a last resort. Yet many of them still feel the need to make sure that I understand up front that they "don't believe in lawsuits." They then proceed to explain to me how they were blameless in causing their injuries, how difficult dealing with their injuries has been, how they only want to be treated fairly and how the insurance adjuster has ignored and abused them to such an extent that they feel that they have no choice but to hire a lawyer and file a lawsuit.

We have all been brainwashed by many years of insurance company propaganda to subconsciously believe that all lawsuits filed by other people are frivolous and bad while we continue to rationally analyze our own situations and conclude that when necessary a lawsuit is a good thing and should be pursued. I offer as a prime example one of the leaders of the East Texans Against Lawsuit Abuse. This gentlemen is an outspoken critic of lawsuits yet at last count he had filed more than sixty lawsuits. Obviously he believes that a good lawsuit is one which he files and a frivolous lawsuit is one filed by someone else. No one wants to be one of those "other people" who filed a lawsuit that we have been conditioned to believe is groundless or unnecessary. Yet few stop to think that those "other people" were also blameless, dealing with difficult injuries, only wanted to be treated fairly, and were ignored and abused by an insurance company before they filed one of those "other people" lawsuits.

For more information contact a Tyler Injury Attorney today.

For as long as anyone who is alive today can remember an accident victim in Texas has had a right to recover the reasonable amount of their accident related medical expenses. Then in 2003 the insurance lobby, the so-called Texans for Lawsuit Reform, sought to limit victims to recovering only their deductibles, co-pays, and other out of pocket expenses. The health insurance lobby fought back, fearing that the victims would not recover enough medical damages to repay the health insurance company. The outcome was Texas Civil Practices and Remedies Code section 41.0105 which limits an injured Texan to recovering the amount "actually paid or incurred." Under normal rules of construction "paid or incurred" would simply mean that the victims could choose between the alternative measures of damages.

This was not what the insurance lobby, the Texans for Lawsuit Reform(TLR), had in mind and they launched a vigorous campaign to have the statute interpreted and applied in a way which limited accident victims to recovering only the amount of the medical expenses that had been paid by health insurance or the amounts actually paid out of pocket by the victims. Furthermore, the alternative language in the statute gave rise to a quagmire of unanswered legal and procedural questions. In 2005 the Texas legislature voted almost unanimously to repeal the problematic statute but Governor Rick Perry, pursuant to instructions from TLR, vetoed the repeal. The political wrangling regarding this issue continues.

Texas courts continue to struggle with how to apply the "paid or incurred" standard. The prevailing practice is to apply traditional rules of evidence and submit all of the victim's medical bills to the jury and after the verdict to reduce the amount of the medical expenses awarded by the jury to the amount paid by health insurance, out of pocket, etc. This method of applying the paid or incurred statute post verdict has been approved by most of the Texas appellate courts that have written on the issue. However, the Twelfth Court of Appeals that covers Tyler and the surrounding seventeen county area has ruled in the Escobedo case that only the "paid" amount of the medical bills should be submitted to the jury.

The net result of the paid or incurred confusion is that an injured East Texan might:
1. Submit and recover all of their accident related medical expenses;
2. Submit all of the accident related medical expenses but only recover the amounts paid by health insurance, out of pocket, etc; or,
3. Be limited to submitting and recovering only the "paid" amounts.

These uncertainties make evaluating medical expense damages extremely difficult by all sides and beg for sensible legislative reform.

For more information contact a Tyler Accident Lawyer today.

During the last several sessions of the Texas Legislature the changes to the medical negligence laws have been substantial. Generally, health care liability claims have a two year statute of limitations which does not begin to run on minors until their eighteenth birthday. There are a variety of caveats and limiting doctrines so the potential claimant would be well advised to seek advice early on. A claimant is required to file an expert report within 120 days of the filing of a lawsuit addressing both malpractice and the causation of damages. This is true regardless of whether the case requires expert testimony. For example, if you go in for surgery and the surgeon amputates the wrong leg you must pay a surgeon to author a report stating that it is beneath the standard of care to remove a healthy leg by mistake.

The most notable of the changes are the damages caps. In medical malpractice actions filed after September 1, 2003, noneconomic damages from individual defendants are limited to $250,000 and noneconomic damages from institutions are limited to $250,000 each with a maximum from all institutions of $500,000. Under the current statutes the average injured patient is entitled to recover their medical expenses, lost wages, and a maximum of $250,000 from the physician plus an additional $250,000 if the hospital or clinic can be held responsible. This is true regardless of the severity of the injuries.

The changes to the law are not intuitive and those unfamiliar with their complete meaning should seek assistance.

For more information contact a Tyler Medical Malpractice Attorney today.

Basic Texas personal injury damages are limited to physical pain and mental anguish, physical impairment, disfigurement, medical care and loss of earning capacity.

There is no exact definition of physical pain or specific evidence required to prove physical pain. A jury has wide latitude on this issue and may simply infer the existence of physical pain in the event of a serious injury. Mental anguish is more than normal concern or worry and requires proof of a high degree of mental pain and anxiety to such an extent that it disrupts the victim's life. Physical impairment damages are separate and distinct from the other elements and address the inability to engage in activities to such an extent that it causes a disruption of the victim's former lifestyle. Physical impairment is distinct from the inability to continue in gainful employment and focuses on disability that results in a substantial disruption of a former lifestyle. Disfigurement, like physical pain, uses the ordinary meaning of the term and is a matter of degree with the jury having broad discretion. Medical care includes the reasonable and necessary medical expenses, both in the past and in the future, required to treat the accident related injuries. Loss of earning capacity is the inability to engage in gainful employment for which one is otherwise qualified. In most cases the amount of the injured person's actual lost wages are submitted to the jury. However, someone who was between jobs, unemployed, on sabbatical, etc. would nonetheless be entitled to recover the reasonable amount of income which they could have earned during the period of accident related disability.

The spouse of an injured person also has a right to make a claim for loss of household services and consortium. Loss of household services includes the loss of domestic services and support. This element of damages is often used to recover additional expenses incurred in the home during a period of disability such as additional maid services. Loss of consortium includes the loss of care, comfort, society, emotional support, sexual relations, and companionship necessary to a successful marriage. While loss of consortium damages are technically available any time a spouse is injured most jurors tend to think that a certain amount of such damages are included in "for better or worse" and thus loss of consortium damages are usually only asserted where there are serious or disabling injuries to a spouse.

For more information contact a Tyler Injury Attorney today.

Texas spouses, children, and parents have a right to bring a claim under Texas law for the wrongful death of a loved one. Texas wrongful death claimants have a right to bring a claim in connection with the loss of a family member for pecuniary loss, loss of companionship and society, mental anguish, and loss of inheritance. Pecuniary loss is defined as the loss of care, financial support, maintenance, services, guidance and other contributions of a pecuniary value not including the loss of inheritance. Loss of companionship and society is the loss of the care, comfort, society, love and emotional support resulting from the loss of a loved one. Mental anguish is the emotional suffering, pain and torment that results from the death of a loved one. In evaluating loss of companionship and society and mental anguish in connection with the loss of a spouse the couple's living arrangements, relationship, common interests and activities are all taken into account. Similar factors are considered when evaluating these claims by parents and children.

Loss of inheritance is the net present value of the amount of assets or investments that the deceased would have in probability added to the estate and left at natural death to the surviving heirs. This element of damages varies greatly from case to case. High wage earners often accumulate substantial estates, particularly during the later years of their careers, and their early demise results in a large amount of damages for loss of inheritance. On the other hand, low wage earners often consume all of their income resulting in no calculable loss of inheritance damages. Texas wrongful death damages are individual in nature and are submitted to the jury separately.

Texas survival damages are the traditional personal injury damages suffered by the decedent prior to death. Upon death these damages become a right or asset of the deceased's estate and are asserted by the representative of the estate. These damages also vary greatly. In situations where the victim died instantly or with no knowledge of the event which caused their death these damages are smaller. On the other hand, in situations such as with cancer where the victim dies a long, slow, painful and very expensive death the survival damages can be huge.

For more information contact a Tyler Wrongful Death Lawyer today.