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And Now, Speaking on Behalf of Big Insurance: The Texas Supreme Court

Earlier this month, the Texas Supreme Court once again cast its arms around Big Business and shoved Texans out the door.

Not so long ago, if you were the victim of an accident wherein medical bills were incurred you could present the total amount of his bills to a jury even if your insurance had paid the majority of those bills. This was fair. After all, one of the elements of damages that you are entitled to is pain and suffering. One way to convey how much pain you suffered is to show the amount of bills you had to pay to not have that pain anymore.

But that has changed. The Texas Supreme Court has ruled that the only bills you can present to a jury are the ones you still owe.

Let me give you an example: Let’s say that you are the victim of an accident wherein your medical bills are $100,000.00. Let’s further say that you were responsible enough to have medical insurance (which, by the way, you paid dearly for because medical insurance is not cheap). In our example, your insurance paid $90,000.00 of your bill and has a lien to get reimbursed of $10,000.00.

The Texas Supreme Court has ruled that the only amount you can present to the jury is $20,000.00 (the $10,000.00 left over from the original bill plus the $10,000.00 insurance lien). Will $20,000.00 give the jury an accurate picture of how injured you really were? No. So, whatever pain and suffering you would have received is now likely reduced by a large amount.

But let’s take this a step further. Under this new law, the person who hit you and caused the accident, caused you to incur medical bills, caused you to lose time from work, and caused you the pain and suffering now benefits from YOUR insurance.

Yep, the person who slammed into you AND his insurance company get the benefit of all those premiums that YOU paid. The bills HE caused are reduced by the insurance YOU paid for.

It is as if you are being punished for being responsible enough to carry insurance.

And here is a head scratcher: On one hand, we have Federal Government trying to force everyone to buy insurance while the Texas Supreme Court says, yes, but you better never use it in car accidents!.

Excuse me, Texas Supreme Court, but your bias is showing. Again.

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THE US SUPREME COURT IS “MENSING” WITH YOUR LEGAL RIGHTS


The US Supreme Court correctly held in its 2010 decision in Wyeth v Levine that state tort laws do not conflict with federal law and can be used to hold the pharmaceutical manufacturers accountable for the serious injuries and damages caused by their dangerous drugs. The legalese for the legal issue made the basis of that decision is preemption: Are claims brought on state tort laws inconsistent with and therefore preempted by federal law. The Court recognized that the FDA could not possibly shoulder all of the responsibility for determining the safety of a prescription drug during the new drug approval process. It further recognized that tort laws were not inconsistent with the federal laws and regulations that the FDA operates under, and those laws play a very important role in determining the safety and effectiveness of dangerous drugs that the FDA approves. After all, the only information the FDA has to make that decision comes from the drug’s manufacturer. No comfort level, there.

In June, 2011, the same US Supreme Court in Pliva Inc. v. Mensing held just the opposite for the manufacturers of the generic forms of these dangerous drugs. The Court found that state tort claims are inconsistent with and are preempted by federal law and are not permitted. This ruling is significant for a number of reasons. First, the company that develops and obtains FDA approval to market a drug (called the innovator) maintains that exclusive right for a ten year period. That ten year period can be extended under certain circumstances. After that ten year period and/or any extended periods run, the exclusivity is lost. Other drug companies can manufacturer and market the innovator’s exact same drug under its own name. These identical drugs are called generics. Second, the generic manufacturers do not have the same duties that the innovator has in the new drug approval process to test generics for safety and effectiveness and for full, complete and accurate disclosure of all know risks of serious side effects associated with that drug; this is the sole responsibility of the innovator. Third, if the innovator’s label for the drug is inadequate and incomplete, the generics label will be inadequate and incomplete. Fourth, if your physician prescribes a generic form of a drug, or worse yet if your insurance company will only approve and pay for a prescription filled with the generic form, and you suffer a serious injuries and damages from that drug, you will not be able to file suit to seek compensation against the generic manufacturer.

Since the innovator obtained FDA approval and is responsible for the drug label’s full, complete and accurate disclosure of all know risks of serious side effects, it appears that the patient may be able to bring suit against the innovator even though the patient ingested the generic and not the original form of the dangerous drug. The pharmacy, pharmacist, insurance company, and physicians are also left exposed by this ruling for their part in the patient’s injuries and damages. Prior to the Mensing decision, Bailey & Galyen did not included pharmacies, pharmacists, insurance companies, and physicians in cases filed against the drug companies for serious injuries and damages. The Supreme Court’s decision now forces us to include them in the lawsuit.

While the ruling is consistent with Levine, its disservice is that it leaves the generic manufacturers untouched and unaccountable for serious injuries caused by their dangerous drugs. It puts the consumer between the proverbial rock and a hard place, with the fox guarding the hen house.

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The Trial


Although most accident cases settle before trial, there are a few that actually get to a jury. Knowing this, every case in pre-litigation is handled with litigation in mind so as to have a file prepared to go to litigation if the need arises.

So, we need in pre-litigation to have the same proof mindset that we have in litigation.

In a trial, we need to prove two things, and then we need to prove a connector.

First, we need to prove that the accident or incident was the defendant’s fault. We must prove that the defendant is the only person who is responsible for the accident. This is called liability. We must prove the defendant is liable.

Second, we must prove damages. We must prove there were authentic medical bills, lost wages, pain, suffering or any other damages that apply.

Then we must prove the connector. We must prove that it was the accident that caused the damages. The defense may claim that the injuries you suffered came from an earlier accident or incident. We have to prove that the accident, and only the accident, caused the damages we are claiming.

Knowing these elements, we in pre-litigation prepare our cases to prove the exact same elements to the insurance companies with whom we are negotiating. The insurance companies must know that if they refuse to settle with us, we already have the proof we need to be successful in trial.

And that is what makes us always prepared to represent each and every client we have at Bailey & Galyen.

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The Do’s and Don’t’s of an Accident


If you are ever involved in an accident, there are certain things you should absolutely do, and some things you should absolutely not do. These things are extremely important, not just for your well-being, but also to help you should a claim need to be filed, regardless of the type of accident.

The DO’s

DO seek medical attention immediately if you need it. This is the most important thing.

DO call the police. It is critical to get a police report.

DO get the names, addresses, phone numbers, insurance information and license plate numbers of every party involved in the accident.

DO get the name and address of the animal’s owner and any license information if you were injured by an animal bite or attack. Also, make sure to note the breed of animal and take pictures of the animal if possible.

DO get the names, addresses and phone numbers of every witness to the accident.

DO contact your own insurance company. That could include your auto insurance, your medical insurance or even, in some situations, your homeowner’s insurance.

DO take photographs of the accident. If it is an auto accident, take pictures of the vehicles and any visible injuries. If it is a slip and fall, take pictures of whatever caused the slip. If it is a dog bite, take pictures of the dog, the injuries and the area.

DO take detailed notes of what happened. Make sure you include every thought, feeling and impression you have. Include what you saw, heard, felt, smelled and experienced. Make notes of what happened before, during and after the accident.

DO contact Bailey & Galyen.

The DON’T’s

DON’T move your vehicle after an automobile accident unless necessary for safety or required by law. Many cities now require that you move your vehicle from a roadway if possible.

DON’T leave the scene of an accident until the police tell you it is okay to do so.

DON’T dispose of anything that might be evidence. This evidence could include car parts, bloodstained clothes or anything else that might help an investigator. It is better to collect more than you need and not use it than to not have something that would help your claim.

DON’T engage in discussions as to fault with anyone, and make sure you don t apologize for anything it can be considered evidence that you were legally at fault.

DON’T agree to settlement terms without contacting your attorney.

If you follow this simple list of Do’s and Don’t’s , you will be better able to help us, your attorneys, when you are ready to file your claim.

And, as always, if in doubt, call us.