Articles Posted in Dog Bite

Farmers Insurance Group has agreed to pay $84,000,000 in damages to settle a 2002 lawsuit which alleged that Farmers violated the Texas Deceptive Trade Practices and Consumer Protection Act as well as the Texas Insurance Code by charging unaware policy holders higher premiums for less coverage. The Texas Department of Insurance joined in the lawsuit.
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Texas’ brutal medical tort reform may have saved the Texas medical industry millions in malpractice insurance premiums and given Texas hospitals near immunity for medical incompetence but it hasn’t done anything to curb the stunning bills that Texas hospitals regular charge patients. The Government Accounting Office reports that Dallas hospital bill are among the highest in the national for some common surgeries such as hip replacements. The average charge for a hip replacement in Dallas County is $63,000, more than three times the $19,164 charge in Youngstown, Ohio.

The Texas’ so-called tort reform has become just another way for the hospital industry to line their pockets. What Texans desperately need is medical billing reform.

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The dangers of tobacco smoke have been common knowledge since the Surgeon General first warned the American public more than 50 years ago. However, the dangers were generally thought to be to be limited to lung cancer, emphysema, and other respiratory related disorders. Individuals with lung cancer filed products liability lawsuits against “Big Tobacco” and States sued for the increased cost of healthcare for their residents.

According to a recent report released by the U.S. Surgeon General the effects cigarette tobacco smoke go far beyond lung related disorders and diseases. The report definitively links cigarettes to diabetes, colorectal cancer, arthritis, and erectile dysfunction.

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Hyperinflated hospital charges constitute about one third of the $2.7 trillion spent annually on health care in the United States. According to a study published in the The Journal of the American Medical Association hospital charges are the single largest cause of medical inflation.

According to the International Federation of Health Plans the average cost charged per day by a hospital in the United States is between $4,000 and $5,000 which is more than five times the cost in other developed countries.

The higher cost of American hospitals does not result in higher quality health care…quite the contrary. American hospital are largely unregulated and charge more simply because they can.

Austin Federal District Judge Lee Yeakel recently issued an opinion that the provision in Texas’ recent anti-abortion statute requiring that doctors performing abortions must have admitting privileges at nearby hospitals violates the Constitution. Judge Yeakel wrote that the requirement unreasonably restricts a wonan’s access to abortion clinic and the rights of abortion doctors to do what they think is in the best interests of their patients. Texas Attorney General Greg Abbott has filed an emergency appeal of the ruling to the 5th Circuit Court of Appeals which sits in New Orleans.

Democratic State Senator Wendy Davis opposed the passage of the law, engaging in a 13 hour filibuster in an attempt to block the passage of the bill. Senator Davis has announced her intent to run for Governor of the State of Texas. Texas Attorney General Greg Abbott has also announced his candidacy for Governor.

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Google’s recent admission that no one sending communications to a Gmail account has any reasonable expectation of privacy raises the question whether a doctor, lawyer, accountant or any other professional charged with the duty of maintaining client confidentiality can ethically send confidential information through a Gmail account.

The Texas rules of ethics for lawyers imposes a duty to take steps necessary to maintain the confidentiality of certain client information. If an email service provider such as Google freely admits that communications via their service are not private then it stands to reason that any professional who sends information via Gmail may be waiving any privileges that would otherwise attach to information sent via Gmail.

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Plagued by recalls Toyota has agreed to pay more than one billion dollars to settle claims related to sudden-acceleration recalls. But Toyota’s problems over the last several years aren’t limited to acceleration issues. On October 29, 2009, Toyota recalled 3.8 million Toyota and Lexus vehicles because of sudden acceleration occurring as a result of driver’s side floor mats sticking under acceleration pedals. On November 25,2009, Toyota recalled 110,000 Tundra pickups because of excessive rust that caused rear brake performance issues. On November 26, 2009, Toyota announced that it would shorten and modify the acceleration pedals on 3.8 million Camry, Avalon and Lexus models. On February 9, 2010, 500,000 Prius and Lexus models were recalled because of braking problems.

Toyota problems were so wide-spread that public confidence was shaken and Toyota owners began to suffer damages in the form of reduced resale value. Recently Toyota agreed to pay $s1.2 billion to settle a class action filed by Toyota drivers. The damages included loss of resale value, funds for an improved brake override system, a special extended warranty and funding for research.

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The U.S. Supreme Court has granted cert in E.M.A. ex rel Plyler v. Cansler in which the 4th Circuit Court of Appeals upheld the pro rata formula in Ahlborn. Under Ahlborn when Medicaid pays accident related medical expenses and the Plaintiff subsequently obtains a recovery Medicaid may recover a proportionate share of the recovery. In the typical situation the injured victim sustain medical expenses, property damage, lost wages and intangible damages. The Ahlborn formula prevents Medicaid in the all-too-common situation where there is a limited recovery due to insufficient liability insurance from taking all of the insurance proceeds and leaving the Plaintiff with nothing in consideration of the other damages. For example, if an injury victim sustains $100,000 in medical expenses paid by Medicaid, $100,000 in property damage, and $100,000 in lost wages and there is only $100,000 in liability insurance then Medicaid would receive one third of the recovery. In such a situation Medicaid would like to take all the available funds and is challenging the limitation on Medicaid’s right to take all the funds.

To allow one interest holder to take all of the available funds is simply bad public policy. In such situation the injury victim, who advance all of the time, effort and expense in hope of recovering their damages, would have no incentive to pursue a claim and in the long run Medicaid would receive less overall recovery. This is a classic case of pigs get fat and hogs get slaughtered. If Medicaid gets its’ way then the Medicaid hog will be on its’ way to the slaughter house.

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The Texas Supreme Court recently narrowed mental anguish coverage under insurance policies in Evanston Ins. Co. v. Legacy of Life, Inc. In Evanston, a family member of an organ donor learned that the organ donor charity was actually making money off of the donated organs and sued the charity for mental anguish. The organ donor charity demanded a defense and the insurance company denied coverage. The policy covering the charity covered “personal injuries”. In Texas, personal injury damages include damages for mental anguish. The charity sued their insurance company based upon their understanding that the policy covered the alleged personal injuries. The Texas Supreme Court held that the insurance policy provision providing coverage for a “personal injury” did not include coverage for mental anguish unless the mental anguish was related to physical damage or a disease of the claimants’ body. Since the family member that brought the original claim had not sustained personal physical damage no coverage was provided.

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The Forth Worth Court of Appeals recently released the opinion in Medlen v.Strickland holding that a pet owner could recover sentimental or intrinsic value damages for the loss of a pet. The Medlen opinion flies in the face of the 120 year old Texas Supreme Court case of Heiligmann v. Rose decided in 1891. In Heiligmann the Texas Supreme Court held that the value of a dog was to be determined either by the market value or the pecuniary value to the owner. No case since that time has held that a pet owner could recover sentimental damages for the loss of a pet. The Medlen Court points to the more recent Texas Supreme Court cases of City of Tyler v. Likes and Porras v. Craig, both of which held that when personal property has little or no market value that the intrinsic or sentimental value may be used as a measure of damages. No court has applied this analysis to the loss of a pet until Medlen.

Medlen v. Strickland raises a number of interesting questions. If a motorist strikes and injures a cat in the roadway will the motorist, and consequently his automobile liability insurance company, be potentially liable to the cat’s owner for sentimental damages? If a dog escapes from a fenced enclosure and kills the neighbors’ pot bellied pig will the dog owner, and consequently his homeowner’s liability carrier, be liable for intrinsic value damages for the death of the pig? If a dog expires during a medical procedure will the veterinarian, and consequently her malpractice liability carrier, be potentially liable for sentimental damages?

Since Medlen contradicts a 120 year old legal precedent it is highly likely that the Texas Supreme Court will agree to hear this matter. Studies suggest a very high correlation between insurance industry interests and Texas Supreme Court rulings in recent years. With the malpractice liability insurance industry, the automobile liability insurance industry and the homeowner’s liability insurance industry all having a “dog in this hunt”, Medlen v. Strickland is likely to be short lived.

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