Texas Injury Lawyer Blog

Medicare has released guidelines which will allow lawyers representing clients injured in certain types and sizes of cases to self-calculate the amount which must be repaid to Medicare. The self-calculation option is limited to physical trauma based cases. It is not available for non-trauma cases such as pharmaceutical claims, defective medical devices or chemical exposure cases all of which involve injuries which did arise from a single producing event. The total recovery must not exceed $25,000.00. The injury producing accident must have occurred at least six months prior to the self-calculation. Medical treatment must be complete and no further medical anticipated. The lack of a deed for any further accident related future medical treatment may be established either with a written statement from a physician or by a certification from the claimant that medical treatment has been complete for at least 90 days and that no further medical treatment is anticipated.

Medicare's self-calculation procedure provides a streamlined procedure for smaller trauma cases such as commonly result from automobile accidents. Because treatment is complete the Medicare Set-Aside issues are avoided. Further information may be obtained at www.cms.gov/cobgeneralinformation/

It's not uncommon in the course of handling personal injury cases to run across important witnesses who are reluctant or simply refuse to testify. Even a witness subpoena does little to solve the problem of the eyewitness who decides to have a memory lapse. We ran across such an adverse witness recently in an auto/truck collision case. An 18-wheeler driver was sitting in the left turn lane in the early morning hours waiting on a left turn arrow when another trucker made an illegal left turn from the right through lane and collided with a passenger car. The college student in the passenger care was severely injured and semi-conscious at the scene. The 18-wheeler driver left the scene before the police arrived but not before being seen by passersby. The negligent truck driver reported to the police that he was making a legal left turn on a left arrow and that the accident was caused by the college student.

When our private investigator located and interviewed the 18-wheeler driver that had witnessed the accident the driver refused to give a statement and stated that if subpoenaed he would not remember anything. When pressed he stated that he was simply "not going to hang another trucker out to dry".

Witnesses can be impeached with their prior inconsistent statements. Texas Rule of Evidence 613(a) provides that before a witness may be impeached he must be told the contents of the prior statement and given an opportunity to explain or deny the statement. In our case the 18-wheeler driver could be called to testify and questioned in detail regarding his statement the he was not going "to hang another trucker out to dry." If he admitted the statement then he would not be further impeached. If he denied the statement then the evidence cases provide that he may be impeached by any competent evidence or witnesses. In our case the private investigator would be called to testify as to the prior statements. Either way the effect on a jury would be obvious.

Many Texans mistakenly believe that if they are injured on a commercial property that the owner of the property is automatically liable for their injuries and damages. Such is not the case. When a patron enters a business they become what is known as a "business invitee". The owner or operator of a business owes certain duties to their invitees. The owner must make reasonable efforts to discover dangerous hidden defects and either correct the defects or warn customers of the defects. The business has no duty regarding "open and obvious" defects.

Regarding hidden defects the claimant may prove either actual or constructive notice. Regardless of the facts of the case a business owner rarely admits actual notice of a dangerous defect. Even when businesses create dangerous situations they often continue to deny knowledge of the dangerous condition. Thus notice is often proved by constructive knowledge. A premises owner or operator is charged with knowledge of any premises defect that a reasonably careful inspection would have revealed. Furthermore, the Texas Supreme Court has held that constructive knowledge of a defect may be established by a showing that the condition or defect had existed for a long enough period of time that the owner should have discovered the defect.

There is no case where it is more important than in a premises liability case to obtain immediate evidence regarding the condition of the scene of the accident. It is a common practice in the business world to correct a dangerous condition immediately following an accident and then deny that the condition ever existed. In a day when virtually everyone with a cell phone also has a camera premises liability victims would be well advised to have someone take pictures of the scene before the victim leaves the scene of the accident.

The Texas Tort Claims Act as codified in the Texas Civil Practices and Remedies Code first gives school districts a broad grant of immunity from tort claims then sets forth certain limited exceptions to that immunity. Section 101.021 of the Civil Practices and Remedies Code provides that a governmental unit may be held liable for personal injuries or wrongful death if the injuries resulted from the negligent operation of a motor vehicle by an employee of a governmental unit acting in the course and scope of their employment. Section 101.001(3)(B) provides that a school district is a governmental unit within the meaning of the statute.

Section 101.023 of the Texas Civil Practice and Remedies Code sets damages caps for different types of governmental units. Claims against the state government are subject to a limitation of liability of $250,000 for each person and $500,000 for each single occurrence. The liability of a unit of local government is limited to $100,000 per person and $300,000 per occurrence. A school district is a unit of local government.

Section 101.101 provides for special notice provisions which require strict compliance. School districts are entitled to receive notice of a claim within six months of the injury producing accident. The notice must reasonably describe the alleged injury, the time and place of the incident, and the incident. Practitioners would be well advised to send a certified notice letter to school district superintendant at the first opportunity.

Section 101.106 sets forth so-called election of remedies provisions which could easily cause the unwary practitioner to unwittingly waive a portion of a claim.