Texas Injury Lawyer Blog

For a Tyler injury lawyer the Texas Supreme Court's recent decision in Haygood v. De Escabedo creates new issues for which there is no easy answer. Texas Civil Practice and Remedies Code §41.0105 provides that an injury victim may recover accident related medical expenses that are actually paid or incurred. Until last week Texas law provided that a medical debt was incurred at the point that the medical services were rendered in the amount of the medical bill. The Texas Supreme Court has now decided that the amount billed is not the amount "incurred" and that a victim is limited to recovering the total of the amount paid by an insurance company, the amount paid by the victim and the amount outstanding.

Texas statutory and case law provides that a victim may recover reasonable and necessary accident related medical expenses. Texas law contains no evidentiary standards for the admissibility of the amount that a health insurance company paid pursuant to a provider agreement. Such agreements have nothing to do with reasonable and necessary expenses, principals of jurisprudence, or the Texas Rules of Evidence. There are no evidentiary standards by which to measure the validity of health insurance payments. Furthermore, Escobedo clearly states that evidence of health insurance or the amounts written off or adjusted by an insurance company continue to be inadmissible pursuant to the Collateral Source Rule.

Texas Civil Practice and Remedies Code §18.001 provides that reasonable and necessary medical expenses may be proved up by affidavit. Health care providers across Texas have, and will continue, to argue that the amount that they bill patients for their services are both reasonable and necessary. However, Escobedo specifically held that these reasonable and necessary medical bills are neither admissible nor recoverable, arguably invalidating Section 18.001. The Texas Supreme Court has held that only the amount paid is recoverable.

The Texas Supreme Court's perversion of Texas law in Haygood v. De Escabedo has likely created more uncertainty than it resolved.

For more information contact a Tyler Accident Attorney today.

Medicare does not have a lien of any kind or nature let alone a "super lien." Medicare has a statutory subrogation interest in the personal injury claims of Medicare beneficiaries for whom Medicare has paid accident related medical expenses. A lien is a property interest and an attorney possessing the property of another has certain ethical obligations and fiduciary duties regarding the handling of that property. Thus an attorney in possession of settlement funds in which a third party has a lien has a responsibility to see that the lien is not violated. The notion that Medicare has a lien upon personal injury claims was first fabricated by unscrupulous Medicare contractors who were collecting Medicare funds on a commission basis. These collection agents referred to the Medicare subrogation interest as a "lien" in an attempt to improve their negotiating position. This abuse came to a head in the case of Zinman v. Shalala when the Federal Court held that Medicare did not have a lien and ordered Medicare and its contractors to stop using the word lien to describe their subrogation interest.

A subrogation interest is an interest that attaches to a beneficiary's right to make a claim. A subrogation interest reaches the claim and the beneficiary but does not reach the beneficiary's attorney leaving the attorney free to act in the best interest of the beneficiary. Medicare's subrogation interest is a creature of statute. While Medicare clearly does not have a "super lien" it might fairly be said that Medicare has a "super subrogation interest."

The Medicare recovery statute at 42 CFR §411 creates a number of rights, duties, and obligations for not only the Medicare beneficiary but also for insurance companies, health care providers, and attorneys. Anyone dealing with a beneficiary who has received Medicare benefits in connection with an accident would be well advised to study the Medicare recovery statute carefully as Medicare's right of recovery is neither a lien or a subrogation interest but actually a complicated hybrid of the two interests.

For more information contact a Tyler Accident Attorney today.

Modern technology has created a new form of sexual harassment in the Texas workplace. Someone will find a way to abuse just about anything that is good and with the advent of high quality, affordable camera phones comes "sexting." "Sexting" is the texting of sexual explicit pictures. When done in the workplace "sexting" falls squarely within the prohibitions of Texas sexual harassment laws. Sexual harassment is a violation of Section 21 of the Texas Labor Code. Any offensive, unwelcome conduct of a sexual nature in the workplace, whether directed toward the plaintiff or done in the plaintiff's presence, gives rise to a cause of action for sexual harassment.

Sexual harassment victims may recover back pay, front pay, past and future compensatory damages, past and future pecuniary damages, punitive damages, costs, and attorneys fees. Back pay is comprised of the wages lost by the victim prior to trial and should be presented in the form of a net loss after the application of the applicable tax rate. Front pay is the future wages which the victim is reasonably anticipated to lose and is awarded as an alternative to reinstatement in situations where reinstatement is not feasible. Reinstatement in sexual harassment cases, particularly where smaller employers are involved, is usually not feasible. Pecuniary losses are economic losses other than lost wages such as moving expenses, interviewing expenses, counseling fees, medical bills and other out-of-pocket expenses caused by the unlawful behavior. Pecuniary losses both in the past and in the future are recoverable. Compensatory damages are those non-economic damages such as mental anguish, emotional trauma, loss of enjoyment of life, suffering, etc., suffered as a result of the sexual harassment. Punitive damages are awarded to punish the perpetrator and/or employer for extreme, outrageous, malicious or otherwise morally culpable conduct and to deter the defendant(s) from such conduct in the future. The recovery of punitive damages requires a showing of fraud, malice or gross negligence.

The Texas Labor Code set for limits on certain sexual harassment damages. Texas Labor Code §21.2585 limits the combined amount of future pecuniary losses, compensatory damages and punitive damages that a sexual harassment victim may recover based on the number of employees of the defendant. The damage limitations for each plaintiff are: 1) $50,000.00 against an employer with 15 - 100 employees; 2) $100,000.00 for an employer with 101 - 200 employees; 3) $200,000.00 against an employer with 201 - 500 employees; and, 4) $300,000.00 against an employer with more than 500 employees. Thus a Texas sexual harassment victim may recover up to the statutory limit of combined future pecuniary losses, compensatory damages, and punitive damages in addition to back pay, future pay, past pecuniary losses, costs, and attorney fees.

For more information contact a Tyler Sexual Abuse Attorney today.

For years the business and insurance lobby in Texas claimed that they needed a "loser pay" statute in order to recover their legal fees and expenses when they were subjected to frivolous lawsuits. In 2003 the Texas legislature passed Chapter 42 of the Civil Practice and Remedies Code which includes a loser pay provision. Section 42.002(c) provides that only the defendant may invoke the loser pay provisions but that once invoked by the defendant the loser pay provision was available to either party. Not once since its passage have I seen a defendant invoke the Chapter 42 loser pay statute.

It seems that the defendants are not interested in a loser pay provision if it applies equally to both frivolous claims as well as frivolous defenses. The reality of personal injury litigation is that the insurance companies use the delay and expense of litigation in an attempt the starve the injured claimants, who are usually out of work, burdened by mounting medical bills, and often without transportation, into accepting a substandard settlement. It would not be advantageous for the insurance companies to delay the payment of legitimate claims if that delay was going to come with the obligation of paying the claimant's legal fees and expenses.

When the insurance and business world lobbied for a loser pay statute what they sought was not the shifting of the burden of legal fees and expenses from the prevailing party to the party which caused the protracted litigation but rather an unfair, one sided advantage over injury victims. The fact that the defendants refuse to invoke the loser pay provisions of Chapter 42 because those provisions would then be applied to both parties underscores the defendants' abuse of the litigation process and the need for the provisions of Chapter 42 to be available to be invoked by either the plaintiff or the defendant.

If the plaintiffs could invoke the loser pay provisions of Chapter 42 it would cause the insurance companies to think twice before using litigation in an attempt to starve an injured claimant into unduly compromising a legitimate claim.

For more information contact a Tyler Injury Lawyer today.