- What is Tort Reform?
“Tort reform” is a deliberately deceptive term coined in the 1980s by tobacco, pharmaceutical, insurance and gun lobbyists and lawyers who set about to transform our civil justice landscape by eliminating corporate exposure to civil liabilities. After years of an all-out campaign, at the heart of which was relentless media propaganda, judicial selection and legislation, the courthouse doors are rapidly being closed to average citizens, who will be shunted off into a lucrative private legal system presided over by retired judges employed by alternative dispute-resolution providers
Many Americans would be surprised to learn they are barred from pursuing a case in court because of boilerplate binding arbitration clauses buried in forms they signed with banks, real estate and escrow companies, auto dealerships, medical care providers (including hospitals) and many other people and entities that may have caused them harm. Yet that’s often the case.
Arbitration was marketed as “faster and cheaper.” Well, it certainly is for these business interests. It is a different story for the rest of us. In arbitration proceedings, there is no public or media access, no rules of evidence or procedure, no court transcript, no jury and, most important, no appeal — no matter what. Quite simply, there is no accountability in binding arbitration, in which the arbitrators and alternative dispute-resolution providers are paid by the corporate defendants — who are also likely to guarantee repeat business. As for the money, binding arbitration clauses were drafted and put into form contracts by lawyers for the corporations that stood to benefit from them the most.
Tort reform is a game of bait-and-switch in which ordinary citizens have been snookered by carefully orchestrated and relentless propaganda into seeing a phantom boogeyman in the much-reviled “trial lawyer” who brings “frivolous lawsuits” to “runaway juries” that render “out of control verdicts” in “judicial hell-holes,” making insurance rates and the costs of all goods and services go up.
Well, none of those expenses have gone down, have they? All the while, the real target was the justice system set up by our founders to protect the average citizen, and now it is in serious peril.
- I was in a car wreck in San Antonio and the Police Officer says he is not going to make a report. He said the drivers will have to make the report. What is going on.
Apparently, as of January 2008 there has been a change in the procedure at the San Antonio Police Department regarding small auto accidents. In the past, police in San Antonio always accomplished a police report for accidents on the road or on private property if they respond. Now, if the officer believes there is less than $1000 damage, he is not going to make a police report at all. He will give all drivers a copy of the Texas Department of Transportation C-2 Driver’s Crash Report and then call it a day. It is then the burden of the drivers to fill out their version of this report and send it to the Texas Department of Transportation. This is going to cause problems. First, our police are given broad discretion on whether there is $1000 property damage. “Let’s see, If I think the damage is less than $1000, I don’t have to fill out a report… Hmmm…” Next, if all drivers fill out a report, insurance companies are going to have a field day denying legitimate claims and attributing contribution to drivers who ordinarily would not be at fault. Next, if one driver puts in a report and others do not, liability will once again be skewed by the lack of information. Bottom line: If the police officer does not fill out a report, you had better get the other driver’s information and make that report or you might have a real problem getting your car fixed or being compensated for your injuries.
- What types of Car Insurance are available to Texas drivers?
Even though it is against the law in Texas to have no liability auto insurance, many people let it slide and there are more uninsured drivers out there than most people realize. A recent study by the Insurance Research Council concluded that about one in seven at-fault drivers in a collision with another vehicle will be without liability insurance.
According to the President of the Better Business Bureau serving Central and South Central Texas, what happens to the insured victim after this type of accident can be upsetting and expensive. Instead of the at-fault drivers auto insurance policy covering the victims costs for medical expenses, vehicle repairs, and a replacement rental car, it ends up being the victims responsibility to pay for everything.
As an auto accident attorney who has seen the legal side of thousands of collisions, I highly recommend you purchase the following types of coverages:
- Liability Coverage: This is the type of coverage that is required by law. Without it, you get a ticket. It covers any person you injure and his or her property damage resulting from a collision. Texas requires a minimum liability policy coverage of $20,000 per person, $40,000 per accident, and $15,000 property damage.
- Uninsured motorist coverage: It pays for injury, lost wages, and property damages caused by an uninsured, underinsured or hit-and-run driver. It applies when an at-fault driver has insufficient insurance to pay for your total loss.
- Personal Injury Protection: It pays for your medical and up to 80% of lost wages for everyone in your car during a collision, regardless if who was at fault. You can get coverage in increments of $2500 per person.
- Rental Replacement car coverage: It only costs a couple of dollars per month and it provides a replacement rental car while a car is being repaired after an accident. Since the average car is in the repair shop for two weeks after an accident, the savings can be substantial.
In addition to these coverages there is what people refer as “Full coverage.” The reality is that “Full Coverage” fully covers the bank or finance company you are buying the car form–not you. In Texas you contract with your finance company when you buy a car to keep these types of coverages while you are paying for the car. The reason is simple, you incurred a debt to buy the car and the car is collateral. The bank or finance company will take it back and sell it if you default on the loan. The want to protect or “Fully Cover it” until you pay it off, so they require you to keep the coverage.
- Collision coverage: It pays for damage to your car resulting from a collision with another car, including being hit by an uninsured driver, regardless of who is at fault. Collision coverage is generally sold with a deductible of $250 to $1,000 and the higher the deductible, the lower the premium. It protects the car, which is collateral for the loan.
- Comprehensive coverage: It pays for damage to your car from weather and road hazards. It also pays the market value of the car if the car is stolen. Again, it fully protects the car which is collateral for your loan. Without collision and comprehensive, if the car was totaled or stolen, you would still owe the finance company the money you borrowed to buy the car, but you would be without the car and need another. Not a good place to be
- Why do auto insurance companies use your credit score when determining how much you are going to pay for car insurance?
The Texas Department of Insurance conducted a study in 2004 to see if there really was a correlation between someones credit rating and the chance they will make an auto or personal injury claim. They compiled statistics from the claims records of two million insurance policies, and found the difference in claims experience by credit score was substantial. According to the report, the 10% of policy holders with the worst credit scores had 1.5 to 2 times more claims than the 10% of policyholders with the best credit scores. Drivers with the best credit scores were involved in about 40 percent fewer accidents than those with the worst credit scores. The higher the risk you are, the more you pay.
- I warm my car up in my driveway during cold mornings while I finish getting ready to go to work in my home. Is there anything wrong with that?
Yes. Over 1/2 of the cars stolen in Texas are “assisted” by the owners leaving them unlocked or leaving the keys in them. Many cars are stolen while they are running unattended in driveways when it is cold. Theft is a crime of opportunity. Thieves are active on cold mornings. While 73% of cars are found, they are rarely in the same condition as when they were stolen. Worse, your car comprehensive insurance is not going to reimburse you for your loss if it is found you left it open or left the keys in it. You may be stuck with your car payments with a battered up or forever gone car. Worse, you can be fined up to $500 if the police find your car running while you are not in it, even if it is in your driveway and locked. Just don’t do it.
Texas had the second highest car theft rate in the country in 2007–Thefts went up 11%. The majority of vehicles that are stolen are full-size trucks and SUVs that are taken into Mexico and used to transport narcotics and human smuggling.
You can protect your car from being stolen by
- Locking it up
- Putting a security sticker on a window
- Installing a blinking security system
- Choose good places to park that don’t give cover to thieves
- Put a steering wheel covers on to deter air bag theft (75,000 airbags are stolen each year)
- Put a visible bar lock on your steering wheel
- Install a transmitter that tells the car’s location if it is stolen.
Read more about it in the article, Don’t leave your car running
In fact, in cities and towns where the warm up law is enforced, car thefts and consequently insurance rates go down significantly. Read more about it in the Benefits of enforcing the warm up law.
- What Can I Recover When my car is damaged in an automobile accident?
The insurance company of the person at fault will either pay for repairs or total your vehicle. It considers the vehicle a complete loss and usually pays the owner the actual cash value for the crashed car. The actual cash value (ACV) is the cost to replace the vehicle with a vehicle that is of like kind and quality, etc., subtracting an amount that accounts for the totaled vehicles depreciation (age and wear and tear). A current NADA Used Car Guide is useful in determining the value of a used car.
While it may seem like your car would have to be a complete wreck, a smoking heap, to be deemed totaled, in fact, this determination is made more on the basis of the cost of repair and the cars worth. A car will be considered totaled if the repair costs exceed a certain percentage of the cars worth. The percentage will differ from company to company, but usually ranges from 51% to 90%
- My Car is not worth as much as it was before the wreck, even though the insurance company fixed it. Can I get money for the loss in market value?
In Texas it depends on the insurance you get before the wreck and the insurance, or lack of it that the person who caused your wreck.
- Diminished Value of Your Car After a Wreck in Texas
Picture this: You just purchased your dream car, a 2008 BMW 760Li Sedan. (In reality it would be more like a 2008 Toyota Camry, but this is my dream and the moral of the story is the same either way, so I am sticking with my 7 series BMW worth $125,000) OK back to the story, you drive off the lot, pull up to the first red light; you are enjoying everyone staring with wide eyed amazement at your car and the really cool owner when all of a sudden you get rear-ended by a 1982 Suburban.
You are on your way to the hospital, but physical pain is only part of it, emotionally you are a wreck, your dream car is destroyed it is going to cost a ton to fix it. Then you remember you are in “good hands” and your insurance company is “on your side.” Your car will be fixed and you will be back on the road in no time.
You recover from your injuries and the “Good Neighbor” fixes the vehicle. Shortly thereafter you realize you got in way over your head. As nice as it is, who can afford a $3,000 per month car payment? You decide to sell the dream and purchase a respectable used car. Imagine your surprise when you go to sell the car, the one you have owned for less than 2 weeks, and find out the $125,000 vehicle is now worth a mere $100,000. You ask the dealer how you could actually owe more than the vehicle is worth and he informs you that since the vehicle was involved in an accident, even though the repairs have been made and there are no visible defects, the value can vary by as much as 20% when compared to a car not previously wrecked. This difference is called “Diminished Value” and whether or not you are entitled to recover for this loss will be discussed below.
The laws in the great state of Texas vary as to whether or not you get the money you deserve. The answer depends on:
1. If the driver of the 1982 Suburban had insurance (YES), or
2. If the driver was uninsured, and you carried:
A. UM (Uninsured Motorist Coverage) (YES)
B. Liability only (NOPE)
C. Collision Coverage (NOPE)
If the driver of the Suburban carried liability insurance, the good news is that you are entitled to receive full compensation for the diminished value of your vehicle. While the insurance carrier will generally not offer you this without you demanding it, the law states the negligent party (in this case the Suburban) has a duty to make the injured party (you) whole. If written proof of the diminished value is provided, the insurance company will usually pay. At The Law Offices of Ed Goldner, we are experts in recovering the diminished value of your vehicle.
If the driver of the Suburban was uninsured, hope and pray you have opted before the wreck to get Uninsured Motorist Coverage (UM) for yourself. UM takes the place of the insurance policy the other driver should have carried. It is as if you are paying a policy premium to ensure every driver on the road has insurance.
A side note here, if you live in San Antonio (or anywhere in the US for that matter) UM is a critical coverage you must have on your auto policy. Some statistics that have claimed as many as 50% of the vehicles on our roads are uninsured at one point during a calendar year. It may be expensive, but so are thousands of dollars in medical bills and vehicle damage. If you are lucky enough to have UM in our scenario, you would receive full compensation for the diminished value of your vehicle.
UM coverage will also compensate you for your medical bills, pain and suffering and lost wages up to your policy limits. At The Law Offices of Ed Goldner, we are experts at handling your UM claims.
If the other driver was uninsured and you only carried liability insurance on your car, you won’t really have to worry about the diminished value, because you will be on the hook for the entire repair bill! Liability insurance works to defend you from claims of other people if you were negligent in the operation of your vehicle. Liability insurance will not fix your vehicle or pay for your medical bills.
What if the driver of the Suburban was uninsured and you didn’t have UM, but you did carry collision coverage. After all, you know your “Good Neighbor” is “On your side” and you’re always in “Good Hands” right? WRONG! The insurance companies have successfully convinced the Texas Supreme Court that they do not have a duty to compensate their insured for diminished value. The Court in American Manufacturers Mutual Insurance Company v. Schaefer stated the policy holder “would still only be entitled to the remedies outlined in the policy, which do not include compensation for a fully repaired vehicle’s diminished market value.” They also acknowledged the “repaired vehicle may command a smaller sum in the market than a like vehicle that has never been damaged, and that awarding Schaefer (the insured in the case) diminished value in addition to repair would go further to make him whole. But we may neither rewrite the parties’ contract nor add to its language.” The Texas Department of Insurance Bulletin B-0027-00 (2000) states: “The position of the Department is that an insurer is not obligated to pay a first party claimant for diminished value when an automobile is completely repaired to its pre-damage condition. The language of the insurance policy does not require payment for, or refer to, diminished value.”
In other words the super long policy your insurance agent placed in front of you and said “sign here” doesn’t mention diminished value so your insurance company doesn’t have to pay and the Supreme Court won’t help you either. Don’t look now, but I think your “Good Neighbor” just ran off with your spouse and dog; those “Good Hands” are wrapped around your throat and the one “on your side” is actually on your backside pushing the knife in good and deep. While I don’t agree with the Court’s decision, it is the law in Texas and the only way to truly protect yourself is to make sure you carry Uninsured Motorists Coverage on your automobile policy, because you can’t choose who is going to hit you.
Don’t think that you can negotiate with your insurance agent to get that coverage either. It is just not going to happen in Texas. This is another example of how insurance companies have narrowed the coverage to avoid payouts to their customers in our State. Read more about the fleecing of Texas Consumers by the Insurance Industry in our Personal Injury News You can Use.
If you are involved in an automobile accident, talk to your lawyer about Diminished Value and make sure they are willing to fight to get you fairly compensated. Better yet, call The Law Offices of Ed Goldner. We are expects in maximizing recovery for all of your injuries and damages.
- What If I don’t agree that my car is totaled?
Once your car is deemed totaled and you are paid actual cash value for it, what happens next? Your car is taken to a salvage yard where it is auctioned off. Then it is usually chopped up for parts. If you love your car, actual cash value may not seem like an equitable deal to you. So what happens when the insurance company says your car is totaled, but you love your car and don’t agree? Do you have a choice? If it is your insurance that is paying, you already agreed in your insurance contract that the insurer will not have to pay out more than the car is actually worth. But the insurer also agrees to make you whole by placing you in the same spot (relatively speaking) as you would have been without the accident.
If you really want to keep your car, you can take the actual cash value from the insurance company, minus deductibles (in your policy) and minus what the insurer would have gotten at the salvage yard. You can then keep your car and make the repairs yourself. If you decide on this route, let the claims adjuster know right away. Once the car has gone to auction, it is much harder to get it back.
Of course, if you can’t settle your differences over the worth of your automobile, you can always file suit. Remember, your insurance company resolves thousands of these types of cases every year and this is likely the first or second time you have ever been involved in something like this. Contacting our office at 210-923-1234 or email@example.com would always be a good idea before you are in over your head. We work on these types of issues every day in our auto accident attorney practice.
- What is a Contingency Fee Contract?
Often you hear the advertisement, “No Recovery, No Fee!” This type of fee agreement with an attorney is called a contingency fee contract. The lawyer’s fee is “Contingent” on recovering for the client. This type of fee agreement virtually gives the keys to the courtroom to those who could not ordinarily afford it. The lawyer asks for no money up front, but expects to be paid from any recovery made. Most contingent fee contracts are for 40% of the gross fee recovered. So, if you recover $10,000, the attorney’s fee is $4,000 and the client would get $6,000. However, if in the case of personal injury, medical expenses the client incurs for treatment of injuries comes out of the client’s portion of the award. So, in the above example, if the client’s medical expenses are $2,000, the client’s net award of $6,000, thus netting the client $4,000. Case expenses also come out of the client’s portion. These expenses must be agreed upon by the client and attorney in the contingency fee contract.
Contingency fee contracts in Texas must always be in writing
- What If The Other Driver Has No Insurance?
In this situation, the other driver is an “uninsured motorist”. In Texas, there is other insurance to go after, and perhaps the person individually or the company he or she works for. Part of our job is maximizing the coverage on your case. We will figure out the amount of any coverage applicable to your collision, including uninsured motorist coverage. We will also determine if the person who caused your collision and injuries was on the clock at the time of the collision. If so, his employer may be liable for your injuries. Finally, we determine if the individual who caused your injuries has enough assets to pursue him or her over and above the coverage available.
- When Will My Bodily Injury Case Be Settled?
We can’t start negotiating your bodily injury claim in most circumstances in earnest until your medical treatment is complete. For now, follow your doctor’s orders until you feel better. Let us know when you have been released from active medical care. We have already begun gathering your medical records and will finish gathering them as soon as possible. When everything is in, we will add proof of your lost wages and send a demand letter to the insurance company and start negotiations in earnest. Sometimes, those negotiations can take several months. We cannot be honest and tell you that your case will be over in thirty days. We will try to keep you informed as we go and settle your case as quickly as possible.
- How Much Is My Bodily Injury Case Worth?
There is no way to estimate the value of your case when we open your file. Until we gather all the necessary materials concerning the liability issues and damage issues in your case, our estimate is not likely to be very accurate. We need to wait until your active medical treatment is complete, proof of your lost wages is in, and any other evidence of longstanding injury in the future before we can value your case. Even then, the amount of damage to your auto, the amount of the insurance coverage that applies to your wreck or fall, your lack of a criminal record, evidence of past injury, the defendants criminal record, and other important issues have to be weighed against the entire case before will we have a reliable estimate.
- My son’s car insurance payments are very high. Can I reduce the insurance premiums by putting the car in his name?
Not likely. A person must be at least 18 years old to own a vehicle in Texas. Therefore, you will need to wait until at least his 18th birthday before transferring title to him if you intend to do that. Plus, you need to look into the cost and availability of insurance. Since he will not be an additional insured on your policy, he will need to obtain his own insurance. As an 18-year-old, the insurance he would need to buy would no doubt be quite expensive, especially if he has a less-than-perfect driving record.
After the defendant’s answers a lawsuit, the next step in the litigation process will be for the plaintiffs and defendants lawyers to send written discovery to each other. Your lawyer normally sends these written documents to the other side and receives them for you. When your lawyer calls and tells you about receiving them, you need to make yourself available to help answer them. If you don’t, your case will be in trouble.
Written discovery takes the form of Interrogatories, Request for Admissions, Request for Production, and Request for Disclosure
- Interrogatories are written questions about the case and each party that must be answered by the other side. Those answers must be sworn to under oath by the party in front of a Notary Public.
- A Request for Production is a request for documents or other evidence from one party to another. An example would be a request for any medical records and bills injured person claims were as a result of a car wreck. In addition, each side sends written authorizations to be signed by the other party so that they can gather evidence themselves also. These authorizations allow the requesting party to get all sorts of documents from the Government, doctors, hospitals and other.
- A Request for Disclosure is a request that asks for the names, addresses and telephone numbers of all witnesses that may be used at the time of trial as well as any experts.
- Requests for Admission are designed to prove certain facts in the underlying case in a very practical and inexpensive manner. An example would be, “Admit that there was a stop sign you had to stop for before the collision at the intersection where the collision occurred.” If you dint answer a request for admission in a timely manner, they can be “Deemed” against you. Many cases have been lost because of these types of written discovery.
Again, written discovery requires timely work by the attorneys and participation of the parties to the suit (those named as plaintiffs and defendants). You must answer them (normally your attorney prepares your answers after input from you) in a timely and truthful manner. If you lie, it will likely be brought up later at a deposition or at trial in the most embarrassing way possible. Your credibility will be seriously damaged in front of a Judge or Jury. If that happens, your case will also be seriously damaged.
As a general rule, all answers and responses to written discovery must be prepared and sent to opposing counsel within thirty (30) after they are first received. That can be delayed by agreement of counsel. Finally, failure to answer these written discovery forms in a prompt and efficient manner could result in substantial monetary fines a party as well as dismissal of the lawsuit.
- I have a criminal conviction that I am embarrassed and ashamed of. Do I have to tell anyone about it in my answers to written discovery or deposition in my personal injury case?
One of the most important things that a client must do is to always be honest with their lawyer during the discovery process. Unfortunately, during our lifetime we have all said and done things that we are not particularly proud of but now is the time to cleanse ourselves of our sins or you can dispense with any hope of achieving the results that you wanted in the litigation process. During the written and oral discovery phase of the case, you will be asked about any criminal convictions that you have that occurred before and after your accident. Rule 609 of the Texas Rules of Evidence makes a criminal conviction admissible only if the crime was a felony or involved moral turpitude. It is imperative that you be honest about your response to this question because in most instances the conviction will not be admissible if you reveal the conviction to opposing counsel. If you are not honest about the conviction and counsel becomes aware of it, the conviction than becomes admissible for the limited purpose of impeachment to show that you are not a truthful person. Due to the fact that a person’s criminal history is easily accessible on the Internet, it is very important that you be honest in this line of questioning because in all probability the criminal conviction will be discovered by opposing counsel or an investigator assigned to your case. Lastly, to quote President Abraham Lincoln: “If you always tell the truth you never have to remember what you said.”
- What does an insurance company look for when it believes someone is faking an on the job injury?
- Multiple claims has the claimant filed more than one workers comp claim in the past or a number of claims within a short period of time?
- Longer absences than anticipated for minor injuries; an unwillingness to come back to work on partial duty or other jobs within the company.
- The claimant was experiencing financial difficulties and/or domestic problems prior to submission of claim.
- The alleged injury occurs prior to or just after a strike, layoff, plant closure, job termination, completion of temporary work or notice of employer relocation.
- Lawyer’s letter of representation or letter from medical clinic is first notice of claim.
- The claimant reports an alleged injury immediately following disciplinary action, notice of probation, demotion or being passed over for promotion.
- There are no witnesses to the accident, or witnesses to the accident conflict with the claimant’s version or with one another.
- The accident or type of injury is unusual for the claimant’s line of work.
- The claimant frequently changes doctors or does so after being released to return to work.
- What is a Deposition in a Personal Injury Case?
After the written discovery has been completed, the attorney on behalf of the Defendant will normally proceed to take the oral deposition of the Plaintiff pursuant to Rule 200 of the Texas Rules of Civil Procedure. A oral deposition is simply the opportunity for counsel to ask you questions under oath. As a general rule, the oral deposition will be taken in the office of your lawyer and they are authorized to be taken in the county in which the suit is filed. You will be sworn in by the court reporter to tell the truth and the penalties of perjury apply even though the deposition appears to be an informal setting. The oral deposition will include four basic areas of questioning: (1) your general background and history, (2) the facts and circumstances of your accident and (3) the nature and extent of your injuries and (4) your damages. Prior to your oral deposition, you will meet with your attorney the day before the deposition for a pre-deposition conference to prepare you for the proceeding. The deposition will be taken down by the court reporter and it will be reduced to writing and it can be used at the time of trial to impeach you in the event that your testimony is not consistent with your oral deposition. The oral deposition will generally take between one to two hours.
- What is Mediation in a Personal Injury Case?
Mediation is a fancy word for settlement conference. After the entire discovery has been completed, the next step in the litigation process will be to set the case for mediation. The local rules of the Bexar County courts mandate that a case be mediated before a case proceeds to trial. Mediation is an informal meeting with lawyers, the mediator and a representative from the insurance company as well as the client. As a general rule, the mediation will take place at the mediators office. Unless otherwise agreed upon, the Plaintiff must be present at the mediation. The goal of the mediation process is to get the case settled and to sign off on a settlement agreement. If a settlement agreement is entered into, the agreement is enforceable by a Judge and the Plaintiff cannot withdraw his consent to the settlement agreement. In the event that a case is settled at the mediation, we will request that the check and closing papers be delivered to our office within fourteen to twenty business days. The total amount of the settlement will be the total recovery and out of that amount the attorneys fees, case expenses and medical bills will be deducted. In order to be prepared for the mediation, we will meet with you the day before the mediation to cover with you want you can anticipate at the mediation. In most instances, you will not be required to speak and the mediation although your attendance is required. Studies have indicated that 92% of all cases settle at the mediation.
- What is “Ambulance Chasing?”
Almost everyone has heard jokes about ambulance chasing attorneys. Simply put, it is the practice of an attorney or someone in his employ who personally contacts a prospective client right after an injury. This practice is both a violation of the Texas disciplinary rules and a criminal offense by both the runner and the attorney.
If you have been involved in a car accident in Texas, the accident report written by the responding officer is public record. If you are a driver, a hurt pedestrian, or owner of a vehicle involved in the crash, your address and phone number is likely published on that report. There is an entire cottage industry of individuals and companies who scour these reports as soon as they become public to find potentially injured people who are not at fault in the crash. These people are then hounded by mail, phone calls, and personal visits by people looking to profit from their misfortune.
Oddly enough, “Ambulance Chasing” laws and disciplinary rules do not prohibit a Texas lawyer from accepting a case that has been “Chased,” even though he knew the person he signs as a client was chased. The law just prohibits him paying the chaser in any way. Once he pays, the crime is committed. This “Pay” requirement is a technical, but critical distinction in the law regarding enforcement.
Why should it matter to you if you accept help from a “Service” that chases you after an accident? After all, who is going to know? The answer lays in common sense. If you were on a jury and you knew that the person who was injured was chased by a chiropractor or other service, and then referred to an attorney for “Free” to help the injured person, wouldn’t you suspect the motives of everyone involved? Often the only one who can testify to the pain you go through is yourself. The more pain you go through, and the more bills you have the higher your award. If a jury were to doubt your word or the word of your doctor, or the word of your lawyer, that would hurt your case considerably.
Here is one example of how ugly it can get when an attorney and a chiropractor get involved with ambulance chasing:
A Houston attorney paid runners to solicit accident victims and bring the potential clients to his office. He contracts with his clients to make a claim against the other driver’s insurance company on their behalf and he agrees to accept 33 percent of the settlement as his fee. The attorney then refers the client to particular chiropractic clinics for therapy.
After the therapy at the clinics is completed, the attorney sends a demand to the insurance company. After some negotiation, the attorney settles the case and a check is mailed to him from the insurance company. When the case is settled, the attorney takes the insurance company’s settlement check and deposits it into his attorney-client trust account. He withdraws the money by writing three checks. One check goes to the chiropractic clinic to pay for the treatment. The second check goes to the client. The third check goes to the attorney as his legal fee and is deposited into his operating account.
When the chiropractic clinic receives their check from the attorney they often deposit that check into a third party account instead of into their clinic’s operating account. After the check is cashed in a case in which the patient was referred to the clinic by the attorney, the clinic owner meets privately with attorney and returns 40-50 percent of the check to the attorney in the form of a cash kickback. The attorney keeps the cash and does not deposit it into his operating account. This income received by the attorney is never reported on his federal income tax return. The income reported by the attorney on his income tax return is only that money that he received from the trust account by check and the salary checks received by the attorney from his law firm. The cash kickbacks are not reported.
In this case the attorney and the chiropractor each entered a guilty plea to making a false statement on their tax returns related to the income from this little scheme, which netted the attorney approximately $686,000 in 1996 and 1997, the years at issue for the tax charge.
It is no secret that trial lawyers, in general, and personal injury lawyers, in particular, have a bad name because of a few who place profit above the welfare of their own clients. The most prominent scheme to get around the State law against ambulance chasing is where the attorney and chiropractors engage in a scheme where chiropractors would purchase accident reports and contact accident victims. The victims were then offered free medical treatment at the chiropractic clinic. Once at the chiropractors offices, however, the chiropractic staff would have attorneys representatives in the office ready to sign up the clients. And, at the end of the case, you can bet that the chiropractic care was not “Free.” It is paid for out of the final award in the case.
Insurance companies are fully aware of attorneys who handle “Chased” clients on a regular basis. You can bet that they devalue-value those cases because of that practice. If you were on a jury and you heard about one of these schemes on a case where you were deciding on an award for an injured plaintiff, would you give full value? Most won’t. Allowing yourself to fall into an ambulance chasing situation will hurt your personal injury case. I would counsel anyone who asked me to stay away from these types of situations.
If you or someone you know has been “Chased,” call the State Bar at (800) 204-2222 and report the violation.
- If I am injured in a car crash or slip and fall, should I get treated by my own doctor or go to a doctor or chiropractor recommended by my attorney?
It is always best to begin any treatment that is not emergency related with a doctor who knows you best. Invariably, your own doctor knows your history and can recommend you to other doctors within your health insurance network (if you have one) who can help you with physical therapy or diagnostics required by your current injuries. If you were on a jury, wouldn’t you expect an injured person to go to the emergency room for emergencies, and to their own doctor for follow up care? I think most of us would say yes.
That being said, some doctors refuse to treat even longstanding patients if the treatment is related to a claim for injuries. They don’t want to get into the hassle of dealing with insurance adjusters and/or attorneys. This is so, even if they are required to see you by your health insurance. Often, you have to get your health insurance to make the doctor see you. If this happens, your doctor will not be happy. Not a great situation to be in.
Here is what we advise:
1. Go to the emergency room if it is an emergency.
2. Treat with your family doctor if you have one.
4. If you don’t have any of the above, look for a doctor in the Yellow Pages, Internet, or other referral network. Ask your family and friends if they know a good doctor to help you.
5. If you can’t afford medical care, your attorney may know a doctor or chiropractor that will not bill you up front for your medical care and/or diagnostic studies. They do bill you and are paid at the end of the case however. If you lose your case, you still owe for the medical care. Medical care is rarely free and doctors get paid by you, by you health insurance, or out of the settlement or verdict in your personal injury case.
If you go to a doctor or imaging facility who will not require you to pay up front, they normally get you to sign an assignment of benefits or cause of action. This is a contract where you agree to allow the doctor to be paid out of your settlement. If it is an assignment of your cause of action, your doctor could actually sue the defendant in your name as an assignee and collect his or her bills. In any accident case, most medical providers use these types of assignments even if they are paid by your health insurance, Medicaid or Medicare. If you don’t sign, you probably won’t get treatment.
Often these assignments are sent to your attorney. Once an attorney is placed on notice of the assignment, if funds are deposited in his trust account, he must pay your doctor bills. It doesn’t matter if the attorney signs it or not. If it is in his file, he is on notice of the doctor’s interest.
Attorneys oftentimes write letters of protection to doctors, so that you may get medical treatment without up-front medical costs. Very few doctors accept these letters, but most chiropractors do, as well as many imaging diagnostic centers. Once again, this type of letter requires the attorney to pay the doctor out of the funds at the end of your case.
Treat with your own doctor if you can. If you were on a jury, which would you believe more? The medical opinion of an injured persons long time doctor, or a doctor an injured person was sent to by his attorney. Sometimes you can’t avoid it, but if you can, do so.
- What is the statue of limitations in a Personal Injury Case?
The statute of limitations is a set amount of time you have to settle your claim or file a lawsuit. If you fail to do either on time, you can never recover. The reason for this is to provide a time where people can go about their business without worry of old claims being brought against them. Each State has different statutes for different cases. In Texas, the statute of limitations for personal injury cases is generally two years after the date you were injured. However, there are exceptions. One of those exceptions is slander cases. Slander is when the defendant communicates a disparaging remark to a third person about the plaintiff. It must be spoken, instead of written. Written disparaging remarks are called libel. The statute of limitation for slander in Texas is one year after the communication is made. Another Texas exception is when the person injured is a minor or mentally disabled. The statute of limitations is extended in personal injury cases to two years after the minor turns 18 or two years after the mental disability is gone. Yet another four year Texas statute of limitations applies for cases brought over a contract disputes.
Once you file a lawsuit and serve the defendant or defendants with service of process, your case may be settled quickly or linger years in litigation. However, the filing of a lawsuit and the service of process “Tolls” the statute of limitations. That means, you have perfected your right to recover and the statute of limitations no longer applies to your active lawsuit.
There are other statute of limitations issues in Texas, but covering all of here would be too lengthy. The best advice when you are injured or believe you have a claim against someone is to act quickly to get the advice of a lawyer. If you pursue your case in a diligent manner from the date of injury, the statute of limitations will become a small factor. You will have settled your case or your attorney would have filed a lawsuit for you before that deadline comes up.