The Q&A Blogger goes back on the air! Tune in to 90.1 FM (Pacifica) radio, Friday, November 25, 2011 at 9:00 a.m. for “Open Journal.”

We will talk about the Penn State tragedy, how the Texas legal system would take care of the victims of a similar situation, and anything else on your mind the day after Thanksgiving.

Call 713.526.5738 (713.526.KPFT).

If you are not in the Houston area, you may stream the program over the station’s website, http://kpft.org. You do not have to be in Houston to call 713.526.5738 and get on the air!

You can also look online for the November 10 show your Q&A Blogger hosted on the Tort Reform Industrial Complex.

Note: For those of you who are not fans of Pacifica Radio’s politics, I do not share all the political views of this (or any other) radio station.  However, among the goals listed on KPFT’s Mission Statement is “to promote the study of political and economic problems.” That is what I hope to accomplish with my participation in the “Open Journal” program.

So, please listen in, and GIVE ME A CALL!

Have a Happy Thanksgiving!

Q: If a situation like the one (alleged) at Penn State occurred in Texas, would a coach and school who covered up child abuse be liable under Texas law for protecting a child molester?

- JM

A: Texas civil law shields “silent accomplices” to child abuse.

Child abuse is a crime of opportunity. Child sexual predators seek situations where they are trusted, and they thrive when others turn a blind eye.

The details of the Penn State investigation are on the ESPN website. The story is a twisted tale of people in authority looking the other way as children were abused. How many victims would have been spared a life of torment had someone put a stop to what they must have known was happening? When a person in a position to stop abuse fails to act, he or she becomes a silent accomplice to the abuse.

Texas law imposes a duty to report child abuse if any person has “cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect.” That report must be made to law enforcement, to Child Protective Services, or to “the state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse or neglect occurred.”  Proper reporting leads to prosecution, which stops the abuse.

However, if this tragedy happened in Texas, and a victim sued a school and its personnel for failing to protect a child from being raped, the school may escape any responsibility because of a law passed in the 2003 round of tort reform sponsored by Governor Rick Perry.

If sued by the abused child, the school would designate the rapist as a “Responsible Third Party.” When the case went to trial, the jury would be required to assign a percentage of blame to the school and the rapist. The school would be exonerated from any responsibility for the percentage of blame assigned to the rapist. If the jury placed 90% of the blame on the rapist, the school would pay only 10% of the child’s damages. In other words, the school would get a slap on the wrist. If the rapist had no money (and most criminal defendants spend all their money on legal fees), the child would get virtually nothing.

It may sound fair to hold the rapist responsible for the harm he caused, but in a civil claim, how will a school ever be held accountable for enabling and facilitating the rape of a child if it can hide behind the rapist? This terrible “Responsible Third Party” law was part of Governor Perry’s 2003 “tort reform” legislative agenda, and it is bad law. It also allows parking lot and apartment complex owners to ignore rampant violence. They can even designate unknown attackers as “John Doe Responsible Third Parties.”

Other laws protect public schools and universities from liability, and those could keep a child from winning a lawsuit. But Rick Perry’s Responsible Third Party law shields all silent accomplices to child abuse. Why are our laws protecting those who cover up child abuse?

This is a question for your lawmakers!

The Q&A Blog goes LIVE on 90.1 FM Thursday at 9:30 am!  Please tune into “Open Journal” November 10, 2011, and let’s talk about the civil justice system, tort reform, and your legal questions!  The call-in number is 713.526.5738.  The program runs from 9:30-10:00 a.m.

If you are not in the Houston area, you may stream the program over the station’s website, http://kpft.org.

Note: For those of you who are not fans of Pacifica Radio’s politics, let me say that I do not share all the political views of this (or any other) radio station.  However, among the goals listed on KPFT’s Mission Statement is “to promote the study of political and economic problems.” That is what I hope to accomplish with my participation in the “Open Journal” program.

So, please listen in, and GIVE ME A CALL!

On this Labor Day, I am thinking about Jobs.

I am thinking about the jobs Americans used to value, the jobs we used to have, and the jobs we have lost to the rest of the world.  The jobs that involve making things.  Americans seem to value jobs that make money, lawsuits or even public policy, more than we value jobs that make products.  Don’t get me wrong – I think we should have service jobs, lawyers, bankers and politicians.

But we need to get back to making more things.  Wouldn’t it be nice if those American corporations that advertise about apple pie and American values kept more manufacturing jobs here in America instead of shipping them all over the world?

Sometimes I think those corporations are AINO – American in Name Only.

And we need to value the people who do the jobs making products, building bridges, and repairing those things we already have. If I hear one more politician talk about “labor” like it was a dirty word, I think I will scream.  Who do those politicians think built the roads they drive to work on?

Finally, I am thinking about Steve Jobs.  Here’s a guy who actually built a company from the ground up, and that company builds products in America.  Apple Computer revolutionized our lives.  Steve Jobs is worth more money than he could spend in a thousand lifetimes, and he cannot buy his health.

For all of us who get to celebrate Labor Day, thanks in large part to the efforts of millions of laborers over the years who built our country into the greatest economic and social powerhouse in human history, I wish you a great weekend.  And to all the present day workers, I hope you have a safe and relaxing weekend.

I hear a lot of griping about doctors (and lawyers too for that matter).  Some disputes regarding the quality of medical care are legitimate, but many of these complaints result from poor communication. The quality of medical care we receive is usually excellent.  However, people have high (and often unrealistic) expectations about medical treatment, and they tend to focus on those times when things go wrong.

On occasion, I am asked to help my clients choose a doctor.  I take this request very seriously.  The doctors I know and to whom I make referrals are skilled practitioners who provide excellent care to their patients.  Knowing the right doctor can make a big difference in the outcome of treatment.

Here are some of the things I look for in a doctor (and this list was compiled with the help of a good doctor):
A good doctor:

• Treats you like a human being, which includes talking to you, listening to you and answering your questions, not just treating your symptoms.
• Runs necessary tests, and explains why the tests are needed.
• Only performs surgery when surgery is the best alternative and makes sure the patient understands all the options.
• Keeps up to date on medical literature and the latest advances in treatment.
• Respects your opinion and acknowledges your input, including information from the internet.
• Makes referrals when appropriate and understands and supports your desire for another opinion.
• Has a friendly and courteous staff – a sure sign of a nice doctor. When treating accident victims, the doctor accepts your insurance if the doctor is “in network.” Not all doctors treat accident victims, even for established patients. Some doctors only accept cash for patients with legal claims.
• Responds reasonably (in time and cost) to legal and insurance issues affecting patients.
• When you are sick or injured, you often do not have time to ask questions about whether your doctor meets these criteria.  The time to ask is before something happens!

Have a healthy weekend!

HBO follows its “Hot Coffee” documentary with another hard-hitting expose, “Mann v. Ford,” the story of how Ford Motor Company dumped thousands of tons of toxic waste into the woods and abandoned iron mines of an area of New Jersey less than 40 miles from midtown Manhattan.  The first airing of “Mann v. Ford” is tonight (Monday, July 18, 2011) at 8:00pm CDT.

What is most interesting about this story is that Ford admitted dumping the waste, and the site was placed on the EPA’s Superfund list in the 1980s!  Problem solved, right?  Wrong!

The film tracks the story of a class action lawsuit filed in 2006 by residents of Upper Ringwood, NJ, who were poisoned by the waste many years after Ford and the EPA said everything was cleaned up.  The plaintiffs and their lawyers took on both Ford and the EPA, seeking compensation for a range of ailments, including deadly cancers, skin rashes and high rates of miscarriage.

The importance of a free press and a strong civil justice system are the lessons taught by “Mann v. Ford.”  If you think big corporations, or the governmental agencies who regulate them, are here to protect you, you will think again after watching this documentary.

Have a good week!

Faye, a small business owner, hired me to recover her medical expenses, lost income and other damages resulting from an injury caused by the negligence of Mega, Inc. Both names have been changed, but Faye was shocked to hear how Texas law treats her and Mega, Inc.

Faye has health insurance. The $1,200 monthly cost of insuring Faye and her husband (who are in their 50s) comes directly out of Faye’s pocket. Her health insurer has contracted discount rates with doctors and hospitals, so the $20,000 in medical bills Faye incurred because of her injury were reduced to $7,500.  Of that amount, Faye paid $1,500 in deductible and co-insurance, and her health insurer paid $6,000.

Because of the “Paid or Incurred” law (passed in 2003 as HB4), Faye may only recover $7,500 (the amounts she or her health insurer “paid or incurred”) from Mega, Inc.  In other words, Faye paid for the discount when she bought health insurance, and then paid for it again in her lawsuit.  Mega, Inc., receives the benefit of the discount in court.

The Supreme Court of Texas recently upheld HB4, in Haygood v. Escobedo, and further ruled that evidence of the actual charges is inadmissible in a trial.

For over 120 years, the “Collateral Source Rule” has prevented wrongdoers from profiting from benefits, such as life or health insurance, purchased by or for the benefit of a plaintiff.  HB4 and Haygood v. Escobedo turn that rule on its ear.  In a contortion that would make Houdini proud, the Court ruled that parties must now manufacture or hide evidence to keep the jury from learning about the existence of health insurance (which is still inadmissible) and the resulting discount, so that the Collateral Source Rule remains intact.

HB4 was repealed in 2005, only to be vetoed by Gov. Perry.  While the repeal vote was nearly unanimous, the veto came too late for the legislature to act to override the veto.

No one who is victimized by the negligence of another, regardless of whether the defendant is Mega, Inc., or an individual covered by liability insurance, should have to pay twice for health insurance. What has happened to Faye should not happen to anyone.

This is equally true when the health insurance is an employee benefit. That benefit is not given by the employer;  it is earned by the employee.

Maybe the Texas Legislature will have a different look after 2012, and HB4 can once again be repealed.

Senator John Whitmire is the “Dean of the Texas Senate,” a distinction he earned by serving working families and small businesses of Texas for 27 years (and an additional 10 years in the House before that).  Over 37 years, Sen. Whitmire has seen it all, including the rise of the tort reform movement.  In a recent conversation, he remarked this movement has become an industry.  Just as President Eisenhower warned of a growing “military industrial complex,” Senator Whitmire expressed concern that the continuing assault on the rights of individuals and small businesses to have access to the courts is being perpetuated by people who make a living off of selling tort reform.

If you missed the HBO Documentary “Hot Coffee,” find it on your cable system and watch it.  Here is a link to the times it will be shown.  The film debunks lies told about the now infamous McDonald’s case, where an elderly woman suffered third degree burns after accidentally spilling coffee. The real story is a case of gross negligence by McDonald’s that was twisted into a clarion call for tort reform by an organized campaign funded by Big Business.  The film explained that the tort reform movement, including all “Citizens for Lawsuit Abuse”(CALA) chapters, were not popular, grassroots efforts, but prepackaged campaigns funded by industry leaders tired of being held accountable in a court of law when their misconduct caused injuries and death to ordinary citizens.

The morning after its first airing, Big Business responded with a double barreled attack on the film.  As you read the response to the film, you will notice the attack does not challenge the film’s veracity.  Why?  The statements made in “Hot Coffee” are true.  Instead, the attack claims credit for “bringing common sense and fairness back to our courts,” and then makes it clear the Tort Reform Industrial Complex continues to seek further destruction of your right to seek redress in our courts.

Sen. Whitmire’s warning was right on point.  The continuing agenda of the professional tort reformers is brazenly posted on websites of the tort reform organizations.  All of them are funded by Big Business, and all of them seek one goal – zero accountability for corporate wrongdoers.

Alex Winslow heads Texas Watch , an organization dedicated to preserving the rights of individuals.  Texas Watch has no corporate funding.  It relies on people like you for support.  Visit the Texas Watch website and take a look at the issues from your perspective.  Help Alex continue the fight for your rights.

These rights include the 7th Amendment to the Constitution of the United States, in which our Founding Fathers guaranteed every citizen the right to trial by jury in civil cases.  As you enjoy the celebration of our nation’s independence, remember that our patriots fought and died for all your rights.

Have a Happy July 4th!

Laws are passed for many reasons, and laws are vetoed for many reasons. Like laws, some vetoes make more sense than others.

Gov. Perry vetoed HB 242, which banned texting while driving, because he took exception to the law’s impact on freedom.  According to the governor, texting while driving “is reckless and irresponsible” but the bill was “a government effort to micromanage the behavior of adults.”  Current law prohibits texting while driving by anyone under age 18.

I cannot understand the reason for tolerating “reckless and irresponsible” conduct that costs lives. Are we being micromanaged by laws against drinking while driving?  Do we have a right as adults to decide if we need working brakes or headlights on our cars?

We can argue whether our laws are too intrusive.  I do not get the point of preserving the freedom to text while driving.

Have a safe week!

All of us have heard the story of the woman who sued McDonald’s and won millions of dollars for spilling coffee on herself, right?

Wrong.  You have not heard the real story.

You have heard a story, but it is far from the truth.  HBO’s Documentary, “Hot Coffee,” explains the truth behind the most infamous personal injury case in modern time, and how an entire tort reform industry was generated from the “revised” story of the case.

Monday, June 27, 2011 at 8:00 pm CDT (and repeated at various times).  Watch it.  Record it and watch it later. See if your perception is changed by the truth behind the story you have been told, and who was involved in selling that story to you.

The truth will shock you.