Special Rules Apply to Medical Malpractice Claims

April 25th, 2012

By Randy Turner

In 2003 Texas adopted a broad tort “reform” bill severely limiting the ability of Texans to seek redress in the courts when a patient is injured or killed by the negligence of a health care provider. Chapter 74 of the Texas Civil Practice and Remedies Code applies to all “health care liability claims.” These are claims against physicians, nurses, dentists, chiropractors, podiatrists, optometrists, hospitals, nursing homes and others.

Expert report is required

Unlike other personal injury cases or malpractice claims against other professionals, in a medical malpractice case the plaintiff must, within 120 days after filing suit, provide expert reports describing how the health care provider was negligent and how that negligence caused the patient’s injury or death. The plaintiff may be granted a 30-day extension to file the report or cure a deficiency in the report. If the plaintiff fails to file an expert report or if the court decides that the expert report that was filed is not sufficient, then the judge is required to dismiss the lawsuit and order the plaintiff to pay all of the health care provider’s attorney’s fees.

Caps on damages

Unlike other personal injury cases or malpractice claims against other professionals in which the jury decides the maximum amount of damages that the plaintiff should recover, there is an arbitrary limit to how much the plaintiff may recover in a medical malpractice case. The plaintiff is limited to recovering $250,000 in non-economic damages from all doctors and individuals, no matter what his or her actual damages are. These damages are limited to $250,000 from each hospital or other institution and a total of $500,000 from all institutions.

The cap applies to each “claimant,” which includes everyone seeking damages due to one person’s injury or death. In a medical malpractice action for wrongful death, damages (both economic and non-economic) are limited to $500,000 (in 1977 dollars) plus the cost of any necessary medical or custodial care. The cap is adjusted annually for inflation and is now approximately $1,650,000. This limit applies to the total recovery, not separately to each defendant.

The caps on damages in malpractice cases in Texas apply no matter what the jury finds the actual damages are, which means that, in many cases, the injured patient or the family of a patient who was killed by medical negligence will recover only a fraction of their actual damages.

Posted in Medical Malpractice, Personal Injury | No Comments »

How to Establish Your Disability and Get the Benefits You Deserve

April 25th, 2012

By Jennifer Scherf-Cook

Get Treatment

An unfortunate truth is that when someone becomes unable to work, they almost always lose their health insurance. If you do not have a spouse who is working and who can add you onto their plan and you cannot afford COBRA,* you suddenly find yourself in need of treatment and without insurance or the funds to pay for it out of pocket. Daily I speak to people who have been denied Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) because they are unable to prove their disability. The complaint is always the same, “I cannot afford treatment.”

SSA will not approve a claim for disability without medical documentation. It is the applicant’s burden to prove that they suffer from a medical condition that keeps them from being able to work.

Help is out there! You just have to know where to find it. The State Department of Health and Human Services has free or low-cost clinics and hospitals serving every county in Texas. There may not be one that close to you if you do not live near a major city, but there is help if you can get there.

Obtaining ongoing medical records as well as statements from your doctor regarding your conditions and limitations is vital if you want to prove you meet the Social Security Administration’s (SSA) definition of disability.

Go online, ask your doctor, call a local hospital or check the phonebook for your nearest treatment source.

Take your medications and follow doctor’s orders.

Once you find a medical provider, it is important you do as they say. Follow their instructions and take your medication as it is prescribed. The drug companies give out free medications if you apply with the assistance of your medical provider. Your doctor can also prescribe low-cost generics and give you samples. Free clinics also give vouchers for a certain amount of free medications per month.

If there is a medication that can help your condition and you are not taking it, you will not be found disabled. You must be doing everything you can for yourself before the government will pay you disability benefits.

* COBRA is offered by employers. You pay your portion and your employer’s portion of the health insurance premiums. COBRA lasts for 18 months, but can be extended an additional 11 months if you are found to be disabled before the 18 months are up.

For additional information, visit our website at www.socialsecurityjustice.com.

Posted in Personal Injury, Social Security, Workers Compensation | No Comments »

Identity Theft and You

April 25th, 2012

By Cole Fulks

Identity theft is now a huge problem in our increasingly paperless, cashless society. We like the ease of online purchasing and debit and credit cards, but what happens when someone steals your online credit “identity”?

Ignoring the problem will only make matters worse, if not more expensive to fix. If you fail to act quickly, you could be responsible for all charges incurred, and your credit could be ruined for a long time. The scariest part is that you may not even know you are a victim until well after it happens!

To avoid identity theft, remember to ALWAYS review all bank and credit card statements when they come to you for unauthorized purchases or charges. SHRED the statements and information containing your Social Security number, your driver’s license number or any personally-identifying information so no one can dig it out of the trash. Shield your hand when you are punching in your PIN or access code on keypads at the store or gas pump so no one can see what you are entering. Never use a keypad or card swipe machine that appears to be damaged or seems loose or suspicious; report your concerns.

Passwords or Personal Identification Numbers (PINs) should not be simple or easy to remember for anyone who knows you or may already have some personal information about you. Never use one number or code for more than one account. Never give this information out over the telephone — you should always know who you are dealing with or trust the website sponsor.

And if your identity is stolen, report it immediately to the police — it is a crime. The Texas attorney general has a website that can help you with this. Get a copy of your credit report and monitor it closely. A report also needs to be filed with the Federal Trade Commission, as well as the three main credit reporting bureaus: Experian, Equifax and Trans Union.

Posted in Consumer Law, Criminal Law, Debtor / Creditor, General Law | No Comments »

Teach the Child to “Honor Thy Other Parent”

April 25th, 2012

By Ryan Beason

If you are involved in a divorce case or a case involving child custody, Mother’s Day and Father’s Day present a unique opportunity for either party.

In a family law case, the judge is more likely to award primary conservatorship to the party who demonstrates the best co-parenting skills.

A fundamental concept of our Judeo-Christian society is the Second Commandment. The Second Commandment requires us to “honor thy parents.” Mother’s Day and Father’s Day present a unique opportunity to demonstrate that you are the better parent at teaching your child to honor thy other parent.

For many parties currently involved in a divorce proceeding, the last thing you want to do is to buy a gift and a card for your divorcing spouse. But that is exactly what you need to do! What you are actually doing is helping the child to buy a gift and a card for the other parent. In this manner you are demonstrating excellent co-parenting skills by showing that you understand the importance of honoring both parents. You are demonstrating that you will teach the child to honor and cherish the other parent.

For small children it might even be better to share an experience with your child in making a card for the other parent. Very few things that you could do with your child more clearly indicate that you are better at co-parenting than working with your child to make a Mother’s Day card for his or her mother.

The child will remember the experience for years to come. The other parent will keep the card for a long time. But most importantly, you will be well on your way to demonstrating to the court that you are the better parent in terms of co-parenting skills.

Posted in Family Law | No Comments »

Open Beaches Ruling May Sink High Court Careers

April 25th, 2012

By Patricia Kilday Hart

For generations to come, law school lectures on the topic of judicial activism will surely begin with the Texas Supreme Court’s recent opinion negating the state’s longstanding Open Beaches Act.

It’s hard to imagine a court ruling that exemplifies legislating from the bench more perfectly than the court’s recent assault on the longstanding tradition of public access to the Texas coast.

Consider this: both procedurally and factually, no reason existed for the court to even get involved. No case was pending before it. Instead, a federal appeals court had simply presented the court with a question about state law.

The court could have remained silent. After all, the federal case involved the beach house of a California woman who was fully compensated after Hurricane Rita altered the Texas coastline and put her house square in the public easement. The home itself no longer exists.

And yet, so eager was this court to make a statement for the hallowed principle of private property rights that, like an uninvited party guest, it crashed the proceedings with an opinion so preposterous that Republicans and Democrats alike are calling for the electoral defeat of the five judges who joined in the opinion: Judges Nathan Hecht, Don Willett (both of whom are up for re-election this year), Dale Wainwright, Paul W. Green and Phil Johnson.

The federal court case arose over a couple of Galveston Island homes on West Beach owned by California divorce attorney Carol Severance, who knew full well that time and Mother Nature alter the Texas coast dramatically.

Political statement

Sure enough, Hurricane Rita redrew the coastline and slapped Severance’s homes so close to the shoreline they stood smack in the middle of what Texas beachgoers have always considered public property.

But not only did Severance want to cash in on taxpayer-funded disaster aid, she wanted to use the courts to make a political statement. Our Texas Supreme Court obliged.

How off the mark is the opinion? It has bonded together the most unusual of political bedfellows: our gun-toting, libertarian-leaning Republican land commissioner, Jerry Patterson, and one of the most liberal, yellow-dog Democrats ever to serve in the Texas Legislature, former Senator Babe Schwartz. Republican Attorney General Greg Abbott said the court’s premise was built on nothing more solid than, well, shifting sands. It’s supported by “nothing,” Abbott said. “Not a single case, rule, precedent, principle, empirical study, scientific review or anything else.”

‘Pockmarked’ beach

An outraged Schwartz said the opinion “ignores common law dating to the Justinian Code, including the Bible, where Peter dried his nets on the shore.”
If it is allowed to stand, Schwartz said, private property owners will be allowed to create fences, embankments and other barriers and “create a pockmarked beachfront like no other.”

Republican Judge David Medina clearly agreed with Schwartz, noting in a dissenting opinion that the majority “ignores the implied easement arising from the public’s continuous use of the beach for nearly 200 years. … The right to exclude the public from the dry beach was never in the landowner’s bundle of sticks when she purchased the property.”

Another dissent, written by Judge Debra Lehrmann, questioned whether the majority actually harmed property rights — of those homeowners just behind the lucky few with a beachfront location. Noted Medina, “It seems likely the court’s decision restricting beach access will decrease the rental value of non-beachfront properties and thus their property value.”

No beach rejuvenation

Already, the decision has been disastrous for Galveston. Patterson halted a $40 million beach re-nourishment project since tax money can’t exactly be spent hauling sand to private beaches. Whether tax money can be spent cleaning up after the next natural disaster remains to be seen.

So is the win for property rights a Pyrrhic victory for those who worship at the altar of private property rights? “It’s a pretty shallow religion,” Galveston City Council member Elizabeth Beeton observed. Claiming the beach for yourself because your home sits there “is very much about short-term enjoyment of what should be public.”

The Texas Supreme Court has given us a needless opinion in which no one wins. The public, certainly, has lost. Without the state re-nourishing the beaches, West Galveston property owners have also lost. They will find their homes swallowed by the Gulf sooner than they ever dreamed, and their enjoyment of a private beach will be fleeting.

patti.hart@chron.com

Posted in Consumer Law, General Law | No Comments »

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