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The Truth Behind the McDonalds Hot Coffee Case

We have all heard it for years. A woman spilled hot coffee in her lap and received a settlement of $3 million. This outrageous miscarriage of justice why we need to change the law and enact more tort reform.

Here are the actual facts:

  • Tella Liebeck, 79 years old, was in the front seat of her grandson’s car after having purchased a cup of coffee. After the car stopped, Mrs. Liebeck began removing the lid while the cup was between her legs.
  • The cup tipped over, pouring scalding hot coffee onto her. She received third-degree burns over 16 percent of her body and was hospitalized for 8 days while undergoing debridement of her burns, surgical skin grafting, scarring, and disability for over two years.
  • Despite these injuries, Mrs. Liebeck offered to settle with McDonalds for $20,000.
  • The jury awarded her $200,000 in compensatory damages. This was reduced to $160,000 by the judge because the jury found her 20 percent at fault.
  • The evidence showed that McDonalds kept its coffee at 180 to 190 degrees, despite knowing that coffee at that temperature, if spilled causes third-degree burns in 2 to 7 seconds and despite a warning from the Shriner’s Burn Institute that beverages above 130 degrees cause scald burns.
  • From 1982 to 1992 McDonalds burned more than 700 men, women and children, many of whom filed claims and lawsuits.
  • McDonalds witnesses testified that, despite all of these burn injuries, they had no intention of turning down the heat.
  • The evidence showed that McDonalds made approximately $1.35 million per day from the sale of coffee.
  • The jury decided to send McDonalds a message to stop burning people by awarding punitive damages equal to two days sales of coffee $2.7 million.
  • The punitive damages award was reduced to $480,000 by the judge and Mrs. Liebeck eventually settled out of court with McDonalds for less than $600,000.

For the past 22 years big business and the insurance industry have conducted massive propaganda campaigns to distort the truth in an attempt to limit their responsibility for injuries, to put caps on damages, and to limit people’s ability to seek redress in the courts. As we can see, the actual facts of the case do not warrant any change in the law or caps on damages. Unfortunately, these facts do not fit into a quick sound bite or on a bumper sticker.

Rights of the unborn

I had a phone call today from a lady who recently suffered a miscarriage. She had been prescribed medication during her pregnancy which she believed caused the miscarriage. Without getting into the issue of whether the medication was the cause, I had to inform the mom of the very sad state of Texas law. Simply put, Texas medical malpractice laws do not protect the unborn. Since the Texas Supreme Court’s 1971 ruling in Yandell v. Delgado, a fetus is barred from asserting a claim for medical malpractice unless it is born alive. I know this seems to run contrary to much of what we hear and read about the rights of the unborn, but the Supreme Court has reaffirmed its position in Krishnan v. Sepulveda (1995), Edinburg Hosp. Auth. v. Trevino (1997) and Fort Worth Osteopathic Hosp. v. Reese (2004). The Supreme Court has held that the mother (but not the father) can recover for the loss of the fetus as a part of her body, but cannot recover mental anguish damages for the loss of the fetus as a separate individual. The Texas legislature in 2007 enacted Tex. Civ. Prac. & Rem. Code 71.003, creating a right to sue for the wrongful death of an unborn child. The catch is that the law does not apply to claims brought against doctors and hospitals. So parents can sue for the wrongful death of a fetus arising from a car crash, but not for egregious errors committed during delivery or prenatal care.

Suing the City, County, State and School Districts in Texas

Texas Tort Claims Act

Prior to adoption of the Texas Tort Claims Act a governmental entity such as the state, county, city, hospital district, and school district enjoyed sovereign immunity and could not be sued. People who were injured by the negligence of government employees in the performance of their governmental functions could not recover for their injuries. In 1969 Texas adopted the Texas Tort Claims Act. This law waived sovereign immunity in certain situations. Under the Tort Claims Act a governmental unit is liable for personal injury or death caused by the negligence of an employee acting within the scope of his employment only if:

  1. the injury or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment and the employee would be personally liable under Texas law.
  2. the injury or death was caused by the condition or use of tangible personal or real property if the government, if it were a private person, would be liable.

School districts and junior college districts are not liable unless the injury or death arises from the use of a motor vehicle.

Examples

  1. A city bus runs a red light and causes an accident and injuries. The city will be liable because the injury arose from a city employee’s operation of a motor vehicle in the performance of his governmental function.
  2. A doctor at a county hospital negligently fails to diagnose and treat appendicitis which results in a child’s death. The county will not be liable because the death was not caused by the condition or use of property and did not arise from the use of motor driven equipment or a motor vehicle.
  3. A public school cafeteria employee negligently serves spoiled food which causes mass food poisoning. The school is not liable because the injuries did not arise from the use of a motor vehicle.
  4. A person visiting a Texas Department of Motor Vehicles office is injured by a dangerous condition on the premises which the DMV employees knew about but did not repair or warn people about. The state will be liable because the injury was caused by the condition of real property and the state would be liable if it were a private person.

Limits on damages

The Tort Claims Act limits the amount of money that a governmental unit may be liable for. The maximum amounts that a person may recover for personal injuries are as follows: $250,000 from the state and municipalities and $100,000 from a unit of local government such as a county or county hospital.

Notice must be given

A governmental unit is entitled to receive notice of a claim against it no later than six months after the incident giving rise to the claim. The notice must contain certain information about the claim and incident. Notice does not have to be given if the governmental unit has actual notice of the injury or death. This notice is in addition to the two-year statute of limitations that generally applies to personal injury and wrongful death claims in Texas.

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Bailey & Galyen Opens New Fort Worth Office

Summit Office Park

Frost Bank Building Summit Office Park

Bailey & Galyen’s new Fort Worth Office is open for business on June 1st. The office is located just South of I-30, at 1300 Summit Avenue, in the Frost Bank Building of The Summit Office Park. Not only are our attorneys some of the top litigators in the state of Texas, with extensive trial experience and an impressive record of success , but at Bailey & Galyen, many of our attorneys are board certified by the Texas Board of Legal Specialization in the following practice areas: Personal Injury Law, Family Law, Criminal Trial Law, Appellate & Civil Law. That means our clients are being represented by attorneys who have demonstrated special competence in their area of specialization. Furthermore, a board-certified attorney must also have extensive knowledge of the laws of evidence, procedure, and substantive law. We are proud of the fact that we offer the specialized talent of board-certified attorneys to our clients.

OUR NEW LOCATION:
1300 Summit Avenue
Suite 650
Fort Worth, TX 76102
Phone: 817-417-9660
www.galyen.com

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New England Journal of Medicine op-ed: Don’t repeal the medical device tax

The following important and revealing article is provided as written from the Mass Device website (http://www.massdevice.com/), which provides its subscribers with “News and information for the medical device industry and the companies that drive it.”

April 25, 2013

A pair of Harvard Medical School physicians weighs in on the medical device tax in the New England Journal of Medicine, casting doubt on opponents’ arguments and saying it shouldn’t be repealed.

A pair of Harvard Medical School physicians say the medical device tax should not be repealed, writing in the New England Journal of Medicine yesterday that it’s an important bulwark of the healthcare reform law.

In an op-ed piece for the medical journal, the doctors say the arguments for repealing the tax that it will drive medtech investment offshore, cost American jobs and stifle innovation are largely without merit. And even if some of those arguments prove valid, Kramer and Kesselheim argue, the benefits of healthcare reform far outweigh any damage from the tax.

“Losing the revenue that would have been provided by the medical device excise tax would not by itself cause the [Affordable Care Act] to crumble, but it would send a powerful signal to other groups and their lobbyists about the law’s vulnerability to piecemeal erosion. Resolving the conflict over the device tax, then, may either strengthen the ACA and its laudable push toward universal health care or weaken both before progress really begins,” write Drs. Daniel Kramer and Aaron Kesselheim, whose disclosure forms reveal grants from the FDA’s Center for Devices & Radiological Health, The Robert Wood Johnson Foundation, the the Agency for Healthcare Research and Quality, the Pew Charitable Trusts and the Harvard Catalyst Clinical & Translational Science Center.

Kramer and Kesselheim argue that the $2 billion to $3 billion in annual revenue from the 2.3% levy on U.S. sales of medical devices is an important part of the funding for the healthcare reform law, estimated at $100 billion annually also the annual sales estimate for the device industry cited by the authors. Dire predictions from the industry about the effects of the tax, especially claims by national lobby AdvaMed, about its impact on medtech employment, small- to mid-size companies and innovation, are unproven, they write.

“Although some of these claims may prove valid, predictions regarding the tax’s harmful effects on the device industry rest on several unproven assumptions. Decisions regarding layoffs are difficult to trace to single policy changes. With regard to off-shoring, it is unclear how the tax would provide an incentive to move production abroad, since it applies to domestic sales irrespective of the site of manufacture. And since international sales remain unaffected by the tax, the competitiveness of U.S. companies abroad should not be impeded,” Kramer and Kesselheim write. “In addition, individual companies’ profits may be preserved by shifting costs to consumers, a tactic that will be aided by the expansion of insurance to millions of new patients.

“The argument that the excise tax would harm innovation is perhaps the most difficult to prove or debunk, because the relationship between profits and innovation is not straightforward. Certainly, a company’s revenue funds its research and development, but there is no evidence that a tax would affect these investments,” they write.

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