You Need To Know

A Board Certified attorney is an attorney who has demonstrated special competence in a particular field and whose competence has been certified by the Texas Board of Legal Specialization.

The Texas Board of Legal Specialization was created by the Supreme Court of Texas, and the Board members are appointed by the President of the State Bar of Texas. The Board, in turn, administers the program through which an attorney may demonstrate special competence in a particular area of law practice.

How does the consumer know whether an attorney is Board Certified in Personal Injury Trial Law?
Board Certified attorneys are entitled to indicate certification on business cards and letterhead by using the expression "Board Certified-Personal Injury Trial Law-Texas Board of Legal Specialization". They may display the Certificate of Special Competence awarded by the Texas Board of Legal Specialization and list the certification in legal directories and telephone listings under "Attorneys--Board Certified".

How long does an attorney remain certified in Personal Injury Trial Law?
Certification is for a period of 5 years. To remain certified after that time, every 5 years the attorney must apply for recertification and meet the requirements for continued experience, peer review and continuing legal education.

What are the general requirements for Board Certification in Personal Injury Trial Law?
All Personal Injury Trial Law Board Certified attorneys must have:
Been licensed to practice law for at least 5 years
Practiced personal injury trial law for at least 3 years
Devoted a minimum of 25% of their law practice to personal injury trial law
Handled a wide variety of personal injury trial law matters to demonstrate experience and involvement.
Attended personal injury trial law continuing legal education seminars regularly to keep their legal training up to date
Been evaluated by fellow lawyers and judges
Passed a day-long written examination

What special requirements must a lawyer who is Board Certified in Personal Injury Trial Law meet?
A lawyer who is Board Certified in Personal Injury Trial Law must have handled jury trials in cases involving vehicle accidents, worker's compensation, premises liability, products liability, statutory tort claims, maritime accidents, social security claims or claims involving mental anguish damages not necessarily accompanied by a physical injury. The lawyer must also have extensive knowledge of the law of evidence, procedure, and other substantive law in the trial of civil cases.

Must a lawyer be Board Certified to handle a personal injury case?
No. All lawyers who are licensed by the Supreme Court of Texas may handle a personal injury case. Many lawyers who are very competent practitioners have chosen not to seek board certification.

Remember, if you are injured:

AUTOMOBILE ACCIDENTS:

Report your accident to the police, and your insurance company;

Make a list of witnesses' names, addresses and phone numbers;

Seek medical care, as needed, immediately;

Discuss your rights with an attorney.

PREMISES--SLIP AND FALLS:

Report your accident to the owner/occupier of the premises;

Make a list of witnesses' names, addresses and phone numbers;

Seek medical care, as needed, immediately;

Discuss your rights with an attorney.

PRODUCT LIABILITY CASES:

Keep the product in a safe place;

Seek medical care, as needed, immediately;

Discuss your rights with an attorney.

IN ALL CASES:

CONTINGENT FEES: Lawyers should handle injury cases for a percentage of the recovery (usually 1/3 to 40%), with no fee or case expenses charged unless you recover.

SEEK MEDICAL CARE PROMPTLY: Promptly seek medical care, and tell your doctor about all your symptoms and past medical problems.

DO NOT SIGN ANYTHING: Let a lawyer review any document you are asked to sign. TAKE PHOTOGRAPHS of damaged cars or property, visible injuries, or scene of accident.

DEFINITIONS Much of the mystery of the law comes from the words lawyers use. Here are some basic definitions:

Lawsuit: Legal claim filed with a court.

Plaintiff: Person bringing a lawsuit.

Defendant: Person being sued.

Judge: Presides over case and decides legal issues.

Jury: Citizens who decide disputed facts in a case.

Evidence: Testimony, documents and other exhibits which the court (judge) permits the jury to see.

Negligence: Failure to use ordinary care.

Comparative negligence: Fault assigned to both plaintiff and defendant; reduces plaintiff's recovery by percentage; if over 50%, plaintiff recovers nothing.

Ordinary care: Degree of care used by a person of ordinary judgment in the same or similar circumstances.

Proximate cause: A cause which products an event, which could have been foreseen.

Damages: Claims for money that can be made in a lawsuit: reflect losses sustained by a plaintiff.

Punitive damages: Assessed to punish a defendant for intentional, malicious or grossly negligent conduct.

Statute of Limitations: Time period for filing a lawsuit; two (2) years in most Texas personal injury cases.

DAMAGES IN AN INJURY CASE:

Some of the damages that can be claimed in an injury case include:

Medical expenses: Charges for treatment which was medically necessary as a result of an injury.

Loss of earning capacity: Loss of income due to an injury.

Pain and suffering: Physical pain resulting from an injury.

Mental anguish: Mental or emotional effects of a physical injury.

Disfigurement: Scarring, visible signs of injury.

Physical impairment: Loss of function resulting from an injury.

Loss of consortium: Non-injured spouse's recovery for damage to the marital relationship.

DAMAGES IN A WRONGFUL DEATH CASE:

Claims made by a surviving spouse, parents and/or children of a person killed due to negligence or a defect in a product; include loss of financial support, loss of companionship, and mental anguish.

Elements of Proof - To win a case, the Plaintiff (person bringing the suit) must prove:

1. The Defendant (person being sued) was negligent in the operation of his vehicle; AND

2. That negligence probably caused the plaintiff's injuries or damages.

Negligence occurs when a driver violates a safety law or otherwise fails to exercise ordinary care for the safety of others.

The most common defense raised in Texas cases is comparative negligence. If a jury finds the plaintiff and defendant are both negligent, a percentage of fault is assigned to each party. The plaintiff loses his percentage of damages, unless he is more than 50% at fault, in which case he recovers nothing.

Defendants can also assert the fault of others, even non-parties to the lawsuit, and your recovery can be reduced by the percentage of fault attributable to others.

Proving Injuries and Damages - Often, the hardest part of a case is proving the extent of injury. Many conditions (sprains, strains, pain) cannot be medically tested, and can only be proved by the testimony of the plaintiff. Defense lawyers may prove a plaintiff is exaggerating about his injuries or damages. Many good cases are lost because a plaintiff gives inaccurate or incomplete information to his lawyer or doctor, often unintentionally. It is very important to be complete and honest in your answers to your lawyer's questions, and in statements to your doctors about past injuries and current problems.

The elements of damage that can usually be recovered in a personal injury case are: Medical Expenses, Loss of Earnings, Physical Pain, Mental Anguish and, where applicable, Disfigurement or Scarring. Damages are also available in the event of death, but only spouses, children and parents may bring an action for wrongful death.

Punitive Damages can be sought if the Defendant either (1) intended to cause injury or (2) knew his conduct created an extreme risk of severe injury and acted with conscious indifference to that risk. This is very difficult to prove, and many punitive damage awards are reversed by courts of appeal.

Types of Insurance - Several types of insurance may affect a case:

Liability Insurance pays damages for an insured person's negligence. Most cases are "against" liability insurance companies.

Health Insurance plans cover treatment for injuries, although some require a specific doctor or hospital. Most plans have a subrogation provision: if you recover damages from a third party, you must reimburse the Plan.

Personal Injury Protection - your insurance company pays 100% of your medical expenses and 80% of your lost wages, up to your limits of coverage (usually $2,500.00).

Uninsured/Underinsured Motorist - your insurance company pays your damages when the person responsible for your accident has no liability insurance, or his coverage is too small to pay all your damages.

Expensive to Prosecute - An attorney may spend several thousand dollars and hundreds of hours preparing a case for trial. For this reason, many lawyers only accept cases involving serious injuries or death.

Statute of Limitations - Texas has a two (2) year statute of limitations in tort actions. Suits not filed by two (2) years from your date of injury are barred forever. Texas law also requires written notice of a claim must be given to units of city, state or federal government, often within 90 days to six months of an event. Failure to give proper notice may result in a claim being lost. Limited exceptions to these rules may affect the rights of minors and incompetents. However, these deadlines are rigidly construed. If you pursue a case, you should discuss these deadlines with an attorney.

If you have been injured, you should do the following:

Seek medical care immediately;

Report your accident to the police, and your insurance company;

Discuss your rights with an attorney.

Contingent Fees - Lawyers should handle injury cases on a contingent fee basis: the fee is a percentage of the recovery (usually one third to 40%), and no fees or expenses are charged unless your case is won or settled.

We hope this information helps you understand more about Automobile Accident cases, and what is involved in any effort to prosecute and win a case in this area of the law.

Real Facts About Personal Injury Cases
Steve Waldman, JD
Board Certified - Personal Injury Trial Law
Texas Board of Legal Specialization

Here are some important points of the law of personal injury cases.

ELEMENTS OF PROOF - To win a case, the Plaintiff (person bringing the suit) must prove:

1. The Defendant (person being sued) was negligent AND

2. That negligence probably caused the plaintiff's injuries or damages.

Negligence occurs when a person violates a safety law or otherwise fails to exercise ordinary care.

COMMON DEFENSES raised in Texas cases - these are "excuses" or defenses often raised by defendants in automobile accident cases:

Comparative negligence - If the plaintiff and defendant are both negligent, a percentage of fault is assigned to each party. If a plaintiff is more than 50% at fault, he recovers no damages. A finding of 50% fault or less on the part of a plaintiff reduces the plaintiff's recovery by that percentage.

Sudden emergency/act of God - an accident caused by something beyond the control of the plaintiff or defendant; neither party is at fault.

Fault of third party - an accident caused by some other person or product.

PROVING INJURIES AND DAMAGES - Often, the hardest part of a case is proving the extent of injury. Many conditions (sprains, strains, pain) cannot be medically tested, and can only be proved by the testimony of the plaintiff. Defense lawyers often try to show the plaintiff is lying or exaggerating about his injuries or damages. Many good cases are lost because a plaintiff gives inaccurate or incomplete information to his lawyer or doctor. It is very important to be complete and honest in your answers to your lawyer's questions, and in statements to your doctors.

ELEMENTS OF DAMAGES that can be recovered in a personal injury case are: Medical Expenses, Loss of Earning Capacity, Physical Pain and Suffering, Mental Anguish, Physical Impairment, and Disfigurement or Scarring. Damages are also available in the event of death, but only spouses, children and parents may bring a wrongful death claim.

PUNITIVE DAMAGES can be sought if the Defendant acted with "malice," which is defined as an intent to injure or a conscious disregard for the health and safety of others.

COST OF PROSECUTION - An attorney may spend several thousand dollars and hundreds of hours preparing a case for trial. For this reason, many lawyers only accept cases involving serious injuries.

STATUTE OF LIMITATIONS - Texas has a two (2) year statute of limitations in tort actions. Suits not filed by two (2) years from your date of injury are barred forever. Texas law also requires written notice of a claim must be given to units of city, state or federal government, often within 90 days to six months of an event. Failure to give proper notice may result in a claim being lost. Limited exceptions to these rules may affect the rights of minors and incompetents. However, these deadlines are rigidly construed. If you pursue a case, you should discuss these deadlines with an attorney.

CONTINGENT FEES - Lawyers should handle injury cases on a contingent fee basis: the fee is a percentage of the recovery (usually one third to 40%), and no fees or expenses are charged unless your case is won or settled.

IF YOU HAVE BEEN INJURED, you should do the following:

Seek medical care immediately;

Report your accident to the police if necessary;

Make a list of all witnesses to the incident;

Take photographs of the place where the injury occurred, and of your injuries;

Discuss your rights with an attorney.

We hope this information helps you understand more about Automobile Accident cases, and what is involved in any effort to prosecute and win a case in this area of the law.

WHAT YOU NEED TO KNOW ABOUT AUTOMOBILE ACCIDENT CASES
Steve Waldman, JD
Board Certified - Personal Injury Trial Law
Texas Board of Legal Specialization
This page will discuss what you need to know about the law of automobile accident cases. These cases occur when vehicles collide, such as when a car or commercial truck runs into another vehicle, when a pedestrian is struck by vehicle, or when a passenger is injured due to the negligence of a vehicle operator, such as when a driver runs his vehicle off the road or a bus driver drives erratically. These cases can be relatively straight forward, such as when a driver runs a stop light, strikes another car, and subsequently admits fault, or can be highly complex, such as in the case of "hit and run" drivers and public transportation. The information in this e-pamphlet will help you recognize a potential case and take steps to protect your rights.

ELEMENTS OF PROOF

To win a case, the plaintiff (the person bringing the suit) must prove:

1. The defendant (person being sued) was negligent in the operation of his vehicle; AND

2. That thenegligence probably caused the plaintiff's injuries or damages.

Negligence occurs when a driver violates a safety law or otherwise fails to exercise ordinary care in operating his or her vehicle. Ordinary care is what a reasonably prudent (careful) person would do under the same or similar circumstances.

COMMON DEFENSES

Common defenses raised in Texas cases--these are "excuses" or defenses often raised by defendants in automobile accident cases--include the following:

Plaintiff's Negligence - This is a claim that the negligence of the plaintiff caused the plaintiff's injuries. This argument is always made when a person slips or trips - the plaintiff should have been watching where he or she was stepping. If a jury finds the plaintiff and defendant are both negligent, the jury assigns a percentage of fault to each party. If a plaintiff is more than 50% at fault, he or she recovers no damages. A finding of 50% fault or less on the part of a plaintiff reduces the plaintiff's recovery by that percentage. For example, if a jury finds the plaintiff's damages are $100,000, and that the plaintiff's negligence was 25% responsible for causing his or her injuries, the plaintiff's recovery is reduced by 25% (or $25,000) and the plaintiff recovers $75,000. However, if the jury finds the plaintiff was 51% or more responsible for causing his or her own injury, the plaintiff recovers nothing.

Sudden Emergency/Unavoidable Accident - An accident caused by something beyond the control of the defendant which relieves the defendant from fault. One of the most common allegations is that traffic backed up suddenly, or the plaintiff made a "sudden stop." If the driver of the car in front of you slams on his brakes, you are supposed to maintain an assured clear distance to keep from running into that vehicle. That is one of the rules of the road we learn about when studying for our driver's license test. However, many defense lawyers have successfully argued that there was nothing the defendant could do to avoid a rear-end collision because of a sudden stop of the traffic in front (which usually includes the plaintiff). If you have been involved in a rear-end collision, be aware the insurance company (or its lawyer) may try to say you slammed on your brakes and created a sudden emergency for the driver behind you, resulting in an unavoidable accident.

Act of God - An accident caused by weather conditions, which relieves the defendant from fault. An example would be standing water on the roadway, or an intense storm. Once again, the rules of the road require that you only operate your vehicle when it is safe for you to do so. Whenever there is a heavy rainfall, there is a possibility of standing water on the roadway. Drivers should not operate their vehicle at speeds where such standing water becomes a hazard. However, this argument is made in some cases, sometimes with success.

Fault of Third Party - This defense asserts that the condition was caused by some other person aside from the building or property owner. From the early days of Texas law, a defendant could only blame a third party by suing that third party. In 2003, the Texas Legislature adopted a "Responsible Third Party" provision of the Civil Practice & Remedies Code (Section 33.004). This provision allows defendants to designate any person or company, including certain unknown persons, as "Responsible Third Parties," and obtain a jury finding as to that person's fault for the accident. In an automobile accident case, the driver of a "phantom vehicle," meaning one that is not identified, may be named "John Doe" and be designated as a Responsible Third Party, and if the jury finds that unknown driver 50% responsible for the accident, the plaintiff loses half of his damages. While allowing a jury to consider the fault of all parties who can be sued is reasonable and fair, permitting defendants to name unknown people or companies, or those whom the plaintiff cannot sue, is often abused, and it can lead to very unfair results for injured people.

PROVING INJURIES AND DAMAGE

Often, the hardest part of a case is proving the extent of injury. Many conditions (sprains, strains and physical pain) cannot be medically tested, and often can only be proved by the testimony of the plaintiff. Defense lawyers often try to show the plaintiff is lying or exaggerating about his injuries or damages. Many good cases are lost because a plaintiff gives inaccurate or incomplete information to his lawyer or doctor. It is very important to be complete and honest in your answers to your lawyer's questions, and in statements to your doctors.

RECOVERABLE DAMAGES

Damages (which are the value of the wrong a plaintiff has suffered) that can be recovered in a personal injury case are:

Medical Expenses - Only "reasonable and necessary medical care" can be recovered. The testimony of a doctor is usually required to prove treatment is reasonable and necessary, and that it is related to the accident. Unconventional forms of treatment, such as acupuncture or massage therapy, may be helpful to a plaintiff. However, unless a physician or a chiropractor testifies they are reasonable and necessary, these will generally be contested by the defendant's attorney, and a plaintiff cannot recover for them.

In 2003, the Texas legislature passed a statute that limits the medical charges a plaintiff can recover in a lawsuit to those amounts actually "paid or incurred." There has been a great deal of argument over what this language means, but the current interpretation is that if a plaintiff receives a health insurance discount, only the discounted amount may be recovered. This can dramatically reduce the amount a plaintiff can claim in a lawsuit.

Further, defendants will often argue that treatment is excessive, and therefore unreasonable and unnecessary, or that it is simply unrelated to the accident. Insurance companies have doctors who will testify that injuries are minimal, require little treatment, or were not caused by the accident. These doctors appear in numerous cases. Many of the doctors who appear for insurance companies rely on this source of income, and while they have little credibility, they are sometimes effective in jury trials, particularly if the plaintiff also has credibility problems. That is another reason why it is important to be very thorough in all your discussions with your doctors about your medical history.

Some lawyers for injury victims have doctors to whom they frequently send their clients. Some of these doctors are considered aggressive when it comes to treatment, including surgery. Our approach is to allow our clients to use doctors they know, or to whom they are referred by their family doctor or primary care physician. When we are asked to assist with the selection of a doctor, we help our clients find doctors who are qualified to provide excellent care. Our rule of thumb is that we will not recommend a doctor we would not personally see for treatment.

The cost of future medical treatment may also be recovered, but this must also be supported by medical testimony that such treatment will "probably" be required. Proving "probability" means a likelihood of greater than 50%.

Loss of Earning Capacity - This includes actual lost earnings, or in other words, wages that were lost in the past as a result of an injury.The law recognizes that wrongdoers should not benefit from plaintiffs having employee benefits such as sick or vacation time. This is fair, since using up sick or vacation time for an injury means that time off is lost for other purposes (such as illness or an actual vacation).

Loss of earning capacity, in certain circumstances, can also be proved when a plaintiff works in spite of his or her injuries. However, it is difficult to present a lost income claim to a jury based upon time when a plaintiff was actually working.

Some injuries affect the future earning capacity of a plaintiff. When supported by medical testimony, a plaintiff may recover for the loss of the ability to earn money in the future due to an injury.

Physical Pain and Mental Anguish - This element of damages is "noneconomic," which means it cannot be documented or proved in a direct monetary form. Instead, a jury is asked to assess an amount of money that will fairly and reasonably compensate the plaintiff for his or her physical pain or mental anguish due to an injury. There is no rule of thumb for evaluating physical pain or mental anguish, as they are so dependent upon the specific facts of the case and how well a plaintiff is able to convince a jury of what he or she is experiencing.

There are two types of mental anguish that arise from injuries. One is the mental anguish that naturally results from a painful condition. This is different from a "psychological injury" such as depression, which is a common component in an injury scenario. Both are recoverable under Texas law, but the proof required and the amount of allowed inquiry (called discovery) into the plaintiff's prior psychological history is substantially greater when there is an allegation of a psychological injury. In other words, the defendant will be entitled to learn a great deal more about a plaintiff's psychological treatment in the past when a psychological injury claim is made.

Physical Impairment - This is another form of "noneconomic" damages, where the jury is asked to award of damages that will fairly and reasonably compensate a plaintiff for the loss of use of his physical abilities outside a work environment. This may vary from the inability to engage in sporting activities, to being unable to lift a grandchild, after an injury is sustained. Physical impairment damages must usually be supported by medical testimony.

Disfigurement or Scarring - When a plaintiff is scarred, or the injury changes their appearance (such as loosing a limb), the jury may award damages to compensate for this loss. While this claim is particularly applicable in burn injuries or those involving facial scars, evidence of a permanent change in gait (the way a person walks) or any change in appearance may support a claim of disfigurement.

Loss of Consortium or Household Services -When a married person is injured, his or her spouse has a claim for the impact of the injury upon the marital relationship. This includes the effect on a couple's sex life, but it also involves changes in their social life, and the companionship, support and advice spouses provide each other. "Loss of household services" is just what it sounds like--the impact of an injury upon a spouse's ability to do his or her share of the chores around the house. Juries generally do not respond favorably to consortium or household services claims in cases involving less than catastrophic injuries.

In cases involving severe, permanent and disabling injuries to a parent, children may also recover for loss of parent-child consortium. However, under current law, parents cannot recover for the loss of parent-child consortium as a result of an injury to a child.

Bystander Damages - This is a recovery for actually witnessing the event that causes a severe injury to a family member. If a plaintiff and her mother are involved in an automobile accident, and the daughter sees her mother suffer a severe injury, the daughter may recover for the mental anguish resulting from that traumatic event.

Wrongful Death Damages - Spouses, parents and children (including those legally adopted) are allowed to make claims for the wrongful death of a loved one. Other family members (siblings, grandparents, etc.) are not allowed to make a wrongful death claim, regardless of how close they were to the person who has died. Damages may be recovered for grief and bereavement, as well as the loss of the relationship with the loved one. In some cases, it is possible to prove a loss of inheritance.

Punitive Damages These may be sought if the Defendant acted with the intent to injure, "malice," or "gross negligence," which is a conscious disregard for the health and safety of others, and the defendant's knowledge that his or her conduct creates an extreme degree of risk to others.

FACTORS AFFECTING PROSECUTION OF A CASE

Some valid cases may not be accepted by an attorney, due to factors that affect the attorney's ability to handle the case. These include:

Cost of Prosecution - An attorney may spend thousands of dollars and hundreds of hours preparing a case for trial. For this reason, many lawyers only accept cases involving serious injuries. If a plaintiff has seen many different doctors, the cost of proving medical treatment rises. More complex cases require expert witnesses, such as Accident Reconstructionists, whose services are extremely expensive. Most lawyers evaluate a case based upon the severity of the injury and the cost of litigating the case.

Difficulty of Proof of Liability -If proving the fault of the defendant, or overcoming the comparative fault of the plaintiff, are obstacles, a lawyer may refuse to accept the case. The lawyer will assess the risk of losing and the potential recovery. A lawyer working on a contingent fee may be willing to accept a greater risk in a case involving more severe injuries.

Statute of Limitations - Texas has a two (2) year statute of limitations in tort actions. Suits not filed by two (2) years from your date of injury are barred forever. Texas law also requires written notice of a claim must be given to units of city, state or federal government, often within 90 days to six months of an event. Failure to give proper notice may result in a claim being lost. Limited exceptions to these rules may affect the rights of minors and incompetents. However, these deadlines are rigidly construed. If you pursue a case, you should discuss these deadlines with an attorney.

Most attorneys are hesitant to accept a case when the deadline is imminent. For this reason, it is important to contact an attorney early in the process, and not wait until the deadline for filing suit is near.

TYPES OF INSURANCE

Several types of insurance coverage may be involved in an automobile accident case:

Liability Insurance This insurance pays damages for an insured person's negligence. Most cases are "against" liability insurance companies, although the lawsuit is filed against the owner or driver of the vehicle. In Texas, the minimum amount of liability insurance is $25,000 per person and $50,000 per accident (effective January 1, 2010, the required minimum limits are $30,000 per person and $60,000 per accident). This means the most a single person may recover is $25,000, and the most the insurance company can be required to pay regardless of how many people are injured is $50,000. Higher amounts of coverage are available, and this is one of the most important issues in many cases.

If the driver was using another person's vehicle, the liability insurance coverage for the driver and the owner of the vehicle will be responsible for the plaintiff's damages. A plaintiff cannot "double-dip," but in the case of a severe injury, the combination of the two policies may make the difference as to whether there is enough insurance to cover the plaintiff's damages.

If a driver was acting in the course and scope of his employment at the time of an accident, both the driver and his employer are responsible for the damages caused by the driver's negligence. Often, an employer will have a much larger insurance policy than the driver has.

Health Insurance - These insurance plans cover treatment for injuries, although some require a specific doctor or hospital. Most plans have a subrogation provision, which means that: if you recover damages from a third party, you must reimburse the Plan out of that recovery. These reimbursement or subrogation provisions are strictly enforced in Texas.

Personal Injury Protection - If you have "PIP" coverage, your insurance company pays 100% of your medical expenses and 80% of your lost wages, up to your limits of coverage. The minimum amount of this coverage is $2,500. However, you may purchase up to $10,000 of PIP coverage.

Uninsured/Underinsured Motorist - If you have "UIM" coverage, your insurance company pays your damages when the person responsible for your accident has no liability insurance, or his coverage is too small to pay all your damages. UIM coverage cannot be an amount that exceeds the liability coverage provided by an insurer. PIP and UIM coverages are very important, and everyone should have them. These are the coverages that protect you if you are in an accident.

OTHER CONSIDERATIONS IN FINDING A LAWYER

Contingent Fees - Lawyers who regularly represent individuals in personal injury and wrongful death cases work on a contingent fee and expense basis. This means the fee is a percentage of the recovery (usually 33.3% or "one-third" if a lawsuit has not been filed, and 40% if suit has been filed). Expenses are charged to the client's share of the recovery. However, no fees or expenses are recovered by the lawyer unless your case is won or settled.

Board Certification - Lawyers who specialize in a particular field of law may become "Board Certified by the Texas Board of Legal Specialization." Lawyers who are Board Certified have been in practice at least five years, and have undergone a process by which they demonstrate special competence in an area of law. To be Board Certified, a lawyer must dedicate a substantial portion of his or her practice to that area of law, obtain recommendations from peers, and pass a test that qualifies the lawyer to hold himself or herself out as a Board Certified specialist. Board certification is not a guarantee of a good lawyer, but it is a good place to start when looking for an attorney.

WHAT TO DO IF YOU HAVE BEEN INJURED

If you have been injured (or if a family member has been injured or has died) in an automobile accident the following steps should be taken:

Seek Medical Care Immediately - Any person who has suffered an injury in any type of accident needs to seek appropriate medical care immediately. For any serious injury, that means going to an emergency room at a good hospital. Follow-up care may take place at a doctor's office, but an initial evaluation of a serious injury should only be performed at a hospital emergency room.

Any delay in seeking medical care will increase the risk an injury will cause additional harm. It is also grounds for a defendant or an insurance company to claim the injury was not serious or did not result from the accident.

Report the Accident to the Police - Unless it is a minor fender-bender with no injuries, the police should be called to the scene of any accident. Do not allow the other driver to talk you out of calling the police. He or she may be trying to hide drug or alcohol use, or escape responsibility for the damages that have been caused. Only the police can properly document a serious accident, which is often necessary to prove the facts of the accident.

Make a List of All Witnesses to the Incident - When an accident is investigated by the police, the investigating officer should gather this information. However, witnesses are often excluded from accident reports, particularly if the officer believes fault is clear. Witnesses may be needed if an insurance company decides to dispute the officer's findings. Make sure you obtain the address and telephone numbers of all witnesses.

Take Photographs - Make a photographic record of the place where the accident occurred, the damaged vehicle, and of the areas of your body which have visible injuries.

Report the Accident to Your Insurance Company - Even if the accident was not your fault, notify your insurer of the accident. You may have coverages that may be utilized to pay for some or all of your damages.

Do Not Give a Recorded Statement - Until you have consulted an attorney, you should not consent to a recorded or written statement. This is particularly true if you are injured or on medication.

Discuss Your Rights with an Attorney - Most lawyers (including our firm) will discuss an injury case with you and not charge for an initial consultation. Find an attorney who has the experience and expertise to represent you, and discuss the further steps you need to take to protect your legal interests. In severe injury and wrongful death cases, hiring an attorney is almost always the right thing to do.

We hope this information helps you understand more about Automobile Accident cases, and what is involved in an effort to prosecute and win a case in this area of the law. This information is not intended to provide legal advice on a specific case. To find out more about your case, call or email us for a no-cost consultation and case evaluation.

Call us with any questions you may have about your Automobile Accident case, and we will be happy to help you.

WHAT YOU NEED TO KNOW ABOUT PRODUCT LIABILITY CASES
Steve Waldman, JD
Board Certified - Personal Injury Trial Law
Texas Board of Legal Specialization

This page will discuss what you need to know about the law of product liability cases. These are cases where a personal injury or wrongful death occurs as a result of a product that is defective or unreasonably dangerous. This includes all types of products, from automobiles to household appliances. The information in this page will help you recognize a potential case and take steps to protect your rights.

ELEMENTS OF PROOF

There are three categories of product defects cases: Design, Manufacture, and Warning:

DESIGN DEFECTS - The product performs as intended, but causes injury because the design is unreasonably dangerous. An example of this would be a chain saw with no guard over the chain, allowing the chain to come into contact with the operator.

MANUFACTURING DEFECTS - The product is manufactured with defective parts, or is improperly assembled. In other words, it deviated from its original design due to an error while being assembled. An example of this would be a vehicle that has the wrong size or type brake pads installed at the manufacturer's plant, and crashes because it cannot stop.

WARNING DEFECTS - The user of the product is not adequately warned of a danger involved in the use of the product. An example of this would be a toxic household product, which has no indication the substance is poisonous.

A product may be defective in more than one aspect. For example, it may be defectively designed and have defective warnings.

DIFFICULT TO PROVE

Products liability cases are difficult to prove. To win, the plaintiff (the person bringing the suit) must prove:

1. The product was defective at the time it left the control of the Defendant, AND

2. The defect was a cause of the injuries and damages sustained by the plaintiff.

Further, the Texas Legislature has enacted numerous laws (Texas Civil Practices and Remedies Code, Section 82.001, et seq.) that limit liability for non-manufacturing sellers, except when certain highly specific exceptions to the rules apply. Since these laws were added by the legislature to protect sellers from product liability suits unless they significantly and intentionally participate in the design or production of the product, it makes pursuing these cases even more difficult.

COMMON DEFENSES

Common defenses raised in Texas cases--these are "excuses" or defenses often raised by defendants in product liability cases:

Plaintiff's Negligence - This is a claim that the negligence of the plaintiff caused the plaintiff's injuries. This argument is almost always made when a product causes an injury - the plaintiff misused the product. Some misuses of a product are foreseeable, and in that case, a product supplier may be liable for such misuse. If a jury finds the plaintiff and defendant are both at fault, the jury assigns a percentage of fault to each party. If a plaintiff is more than 50% at fault, he or she recovers no damages. A finding of 50% fault or less on the part of a plaintiff reduces the plaintiff's recovery by that percentage. For example, if a jury finds the plaintiff's damages are $100,000, and that the plaintiff's negligence was 25% responsible for causing his or her injuries, the plaintiff's recovery is reduced by 25% or $20,000, and the plaintiff recovers $75,000. However, if the jury finds the plaintiff was 51% or more responsible for causing his or her own injury, the plaintiff recovers nothing.

Fault of Third Party - This defense asserts that the condition was caused by some other person, aside from the manufacturer or handler of the product. From the early days of Texas law, a defendant could only blame a third party by suing that third party. In 2003, the Texas Legislature adopted a "Responsible Third Party" provision of the Civil Practice & Remedies Code (Section 33.004). This provision allows defendants to designate any person or company, including certain unknown persons, as "Responsible Third Parties," and obtain a jury finding as to that person's fault for the accident. In a product liability case, the defendant may claim someone altered the product so that it did not perform the way it was designed. If that person is unknown, he may be named "John Doe" and designated as a Responsible Third Party, and if the jury finds that unknown person 50% responsible for the defective condition of the product, the plaintiff loses half of his or her damages. While allowing a jury to consider the fault of all parties who can be sued is reasonable and fair, permitting defendants to name unknown people is often abused, and it can lead to very unfair results for injured people.

Innocent Retailer - These recent changes to the law insulate sellers of products who are not involved in the design, assembly or marketing of a product, except when a few very specific exceptions apply

PROVING INJURIES AND DAMAGES

Often, the hardest part of a case is proving the extent of injury. Many conditions (sprains, strains and physical pain) cannot be medically tested, and often can only be proved by the testimony of the plaintiff. Defense lawyers often try to show the plaintiff is lying or exaggerating about his injuries or damages. Many good cases are lost because a plaintiff gives inaccurate or incomplete information to his lawyer or doctor. It is very important to be complete and honest in your answers to your lawyer's questions, and in statements to your doctors.

RECOVERABLE DAMAGES

Damages (which are the value of the wrong a plaintiff has suffered) that can be recovered in a personal injury case are:

Medical Expenses - Only "reasonable and necessary medical care" can be recovered. The testimony of a doctor is usually required to prove treatment is reasonable and necessary, and that it is related to the accident. Unconventional forms of treatment, such as acupuncture or massage therapy, may be helpful to a plaintiff. However, unless a physician or a chiropractor testifies they are reasonable and necessary, these will generally be contested by the defendant's attorney, and a plaintiff cannot recover for them

In 2003, the Texas legislature passed a statute that limits the medical charges a plaintiff can recover in a lawsuit to those amounts actually "paid or incurred." There has been a great deal of argument over what this language means, but the current interpretation is that if a plaintiff receives a health insurance discount, only the discounted amount may be recovered. This can dramatically reduce the amount a plaintiff can claim in a lawsuit.

Further, defendants will often argue that treatment is excessive, and therefore unreasonable and unnecessary, or that it is simply unrelated to the accident. Insurance companies have doctors who will testify that injuries are minimal, require little treatment, or were not caused by the accident. These doctors appear in numerous cases. Many of the doctors who appear for insurance companies rely on this source of income, and while they have little credibility, they are sometimes effective in jury trials, particularly if the plaintiff also has credibility problems. That is another reason why it is important to be very thorough in all your discussions with your doctors about your medical history.

Some lawyers for injury victims have doctors to whom they frequently send their clients. Some of these doctors are considered aggressive when it comes to treatment, including surgery. Our approach is to allow our clients to use doctors they know, or to whom they are referred by their family doctor or primary care physician. When we are asked to assist with the selection of a doctor, we help our clients find doctors who are qualified to provide excellent care. Our rule of thumb is that we will not recommend a doctor we would not personally see for treatment.

The cost of future medical treatment may also be recovered, but this must also be supported by medical testimony that such treatment will "probably" be required. Proving "probability" means a likelihood of greater than 50%.

Loss of Earning Capacity - This includes actual lost earnings, or in other words, wages that were lost in the past as a result of an injury. However, when a plaintiff has taken sick or vacation time from work, he may have no actual lost income. The law recognizes that wrongdoers should not benefit from plaintiffs having employee benefits such as sick or vacation time. This is fair, since using up sick or vacation time for an injury means that time off is lost for other purposes (such as illness or an actual vacation).

Loss of earning capacity, in certain circumstances, can also be proved when a plaintiff works in spite of his or her injuries. However, it is difficult to present a lost income claim to a jury based upon time when a plaintiff was actually working.

Some injuries affect the future earning capacity of a plaintiff. When supported by medical testimony, a plaintiff may recover for the loss of the ability to earn money in the future due to an injury.

Physical Pain and Mental Anguish - This element of damages is "noneconomic," which means it cannot be documented or proved in a direct monetary form. Instead, a jury is asked to assess an amount of money that will fairly and reasonably compensate the plaintiff for his or her physical pain or mental anguish due to an injury. There is no rule of thumb for evaluating physical pain or mental anguish, as they are so dependent upon the specific facts of the case and how well a plaintiff is able to convince a jury of what he or she is experiencing.

There are two types of mental anguish that arise from injuries. One is the mental anguish that naturally results from a painful condition. This is different from a "psychological injury" such as depression, which is a common component in an injury scenario. Both are recoverable under Texas law, but the proof required and the amount of allowed inquiry (called discovery) into the plaintiff's prior psychological history is substantially greater when there is an allegation of a psychological injury. In other words, the defendant will be entitled to learn a great deal more about a plaintiff's psychological treatment in the past when a psychological injury claim is made.

Physical Impairment - This is another form of "noneconomic" damages, where the jury is asked to award of damages that will fairly and reasonably compensate a plaintiff for the loss of use of his physical abilities outside a work environment. This may vary from the inability to engage in sporting activities, to being unable to lift a grandchild, after an injury is sustained. Physical impairment damages must usually be supported by medical testimony.

Disfigurement or Scarring - When a plaintiff is scarred, or the injury changes their appearance (such as loosing a limb), the jury may award damages to compensate for this loss. While this claim is particularly applicable in burn injuries or those involving facial scars, evidence of a permanent change in gait (the way a person walks) or any change in appearance may support a claim of disfigurement.

Loss of Consortium or Household Services - When a married person is injured, his or her spouse has a claim for the impact of the injury upon the marital relationship. This includes the effect on a couple's sex life, but it also involves changes in their social life, and the companionship, support and advice spouses provide each other. "Loss of household services" is just what it sounds like--the impact of an injury upon a spouse's ability to do his or her share of the chores around the house. Juries generally do not respond favorably to consortium or household services claims in cases involving less than catastrophic injuries.

In cases involving severe, permanent and disabling injuries to a parent, children may also recover for loss of parent-child consortium. However, under current law, parents cannot recover for the loss of parent-child consortium as a result of an injury to a child.

Bystander damages - This is a recovery for actually witnessing the event that causes a severe injury to a family member. If a plaintiff and her mother are involved in an automobile accident, and the daughter sees her mother suffer a severe injury, the daughter may recover for the mental anguish resulting from that traumatic event.

Wrongful Death Damages - Spouses, parents and children (including those legally adopted) are allowed to make claims for the wrongful death of a loved one. Other family members (siblings, grandparents, etc.) are not allowed to make a wrongful death claim, regardless of how close they were to the person who has died. Damages may be recovered for grief and bereavement, as well as the loss of the relationship with the loved one. In some cases, it is possible to prove a loss of inheritance.

PUNITIVE DAMAGES - These may be sought if the Defendant acted with the intent to injure, "malice," or "gross negligence," which is a conscious disregard for the health and safety of others, and the defendant's knowledge that his or her conduct creates an extreme degree of risk to others.

FACTORS AFFECTING PROSECUTION OF A CASE

Some valid cases may not be accepted by an attorney, due to factors that affect the attorney's ability to handle the case.

COST OF PROSECUTION - An attorney may spend thousands of dollars and hundreds of hours preparing a case for trial. For this reason, many lawyers only accept cases involving serious injuries. If a plaintiff has seen many different doctors, the cost of proving medical treatment rises. More complex cases require expert witnesses, such as Accident Reconstructionists, whose services are extremely expensive. Most lawyers evaluate a case based upon the severity of the injury and the cost of litigating the case.

Difficulty of Proof of Liability - If proving the fault of the defendant, or overcoming the comparative fault of the plaintiff, are obstacles, a lawyer may refuse to accept the case. The lawyer will assess the risk of losing and the potential recovery. A lawyer working on a contingent fee may be willing to accept a greater risk in a case involving more severe injuries.

Statute of Limitations - Texas has a two (2) year statute of limitations in tort actions. Suits not filed by two (2) years from your date of injury are barred forever. Texas law also requires written notice of a claim must be given to units of city, state or federal government, often within 90 days to six months of an event. Failure to give proper notice may result in a claim being lost. Limited exceptions to these rules may affect the rights of minors and incompetents. However, these deadlines are rigidly construed. If you pursue a case, you should discuss these deadlines with an attorney.

Most attorneys are hesitant to accept a case when the deadline is imminent. For this reason, it is important to contact an attorney early in the process, and not wait until the deadline for filing suit is near.

OTHER CONSIDERATIONS IN FINDING A LAWYER

Contingent Fees - Lawyers who regularly represent individuals in personal injury and wrongful death cases work on a contingent fee and expense basis. This means the fee is a percentage of the recovery (usually 33.3% or "one-third" if a lawsuit has not been filed, and 40% if suit has been filed). Expenses are charged to the client's share of the recovery. However, no fees or expenses are recovered by the lawyer unless your case is won or settled.

Board Certification - Lawyers who specialize in a particular field of law may become "Board Certified by the Texas Board of Legal Specialization." Lawyers who are Board Certified have been in practice at least five years, and have undergone a process by which they demonstrate special competence in an area of law. To be Board Certified, a lawyer must dedicate a substantial portion of his or her practice to that area of law, obtain recommendations from peers, and pass a test that qualifies the lawyer to hold himself or herself out as a Board Certified specialist. Board certification is not a guarantee of a good lawyer, but it is a good place to start when looking for an attorney.

WHAT TO DO IF YOU HAVE BEEN INJURED

If you have been injured (or if a family member has been injured or has died) as a result of a defective product, the following steps should be taken:

Seek Medical Care Immediately - Any person who has suffered an injury in any type of accident needs to seek appropriate medical care immediately. For any serious injury, that means going to an emergency room at a good hospital. Follow-up care may take place at a doctor's office, but an initial evaluation of a serious injury should only be performed at a hospital emergency room.

Any delay in seeking medical care will increase the risk an injury will cause additional harm. It is also grounds for a defendant or an insurance company to claim the injury was not serious or did not result from the accident.

Preserve the Product - Secure the product and put it in a place where it will not be disturbed or affected by the weather. If the product is an automobile, this may be difficult, and it is important to contact an attorney immediately to determine if steps can be taken to preserve the product during the investigation.

Make a Lis of All Witnesses to the Incident - Witnesses may make the difference between winning and losing a case. Make sure you obtain the address and telephone numbers of all witnesses.

Take Photographs - Make a photographic record of the place where the accident occurred, the product, and of the areas of your body which have visible injuries.

Do Not Give a Recorded Statement - Until you have consulted an attorney, you should not consent to a recorded or written statement. This is particularly true if you are injured or on medication.

Discuss Your Rights with an Attorney - Most lawyers (including our firm) will discuss an injury case with you and not charge for an initial consultation. Find an attorney who has the experience and expertise to represent you, and discuss the further steps you need to take to protect your legal interests. In severe injury and wrongful death cases, hiring an attorney is almost always the right thing to do.

We hope this information helps you understand more about Premises Liability cases, and what is involved in an effort to prosecute and win a case in this area of the law. This information is not intended to provide legal advice on a specific case. To find out more about your case, call or email us for a no-cost consultation and case evaluation.

Call us with any questions you may have about your Automobile Accident case, and we will be happy to help you.

WHAT YOU NEED TO KNOW ABOUT PREMISES LIABILITY CASES
Steve Waldman, JD
Board Certified - Personal Injury Trial Law
Texas Board of Legal Specialization


This page will discuss what you need to know about the law of premises liability cases. These are cases where a personal injury or wrongful death occurs as a result of premises that are unreasonably dangerous. The injuries may include what are commonly referred to as "slip and fall" or "trip and fall" injuries, injuries caused by any unsafe condition of a building or property, or injuries where a person creates an unsafe situation which he leaves for others to be injured upon.

There is a great deal of misunderstanding premises liability law. When a person slips or trips and falls on the property of a business, or a private residence, is there a right collect damages? Many people believe these are easy cases to win, but they are often very difficult, and in some cases impossible, to win. The information in this e-pamphlet will help you recognize a potential case and take steps to protect your rights.

ELEMENTS OF PROOF
Premises liability cases are difficult to prove, and legally complex. The law changes based on what a person is doing on the premises. For example, a trespasser is afforded less rights than a person conducting business on the premises. Essentially though, to win the plaintiff (the person bringing the suit) must prove:

1. The defendant (the owner or occupier of the premises) knew or should have known of an unreasonably dangerous condition on the property before the plaintiff was injured; AND

2. The defendant was negligent in failing to remedy the condition or adequately warn the plaintiff; AND

3. That negligence caused the plaintiff's injuries or damages.

Negligence occurs when a premises owner or occupier fails to exercise ordinary care for the safety of others. Unless the defendant knows of the existence of a dangerous condition, he cannot be held responsible for it being present. The one exception is where it can be proved he should have known of the condition. This is referred to as constructive knowledge. Recent cases from the Supreme Court of Texas make it more difficult to prove a defendant should have known of a dangerous condition. There must be facts showing the defendant was aware of conditions that would likely result in a dangerous condition being created. For example, if there is a freezer case in a grocery store that has been leaking water, the operator of the store should know it will continue to leak water until it is repaired. However, trying to show a substance has been on the floor for an extended period of time because of its physical characteristics (such as melted ice cream) is almost never accepted by the courts. It is often impossible to prove how long a dangerous condition (such as a spill in a grocery store) was present, or that any employee of the store knew about the spill. As a result, many premises liability cases are lost. This is often difficult for people to accept, in light of their expectations about safety and the responsibility of business owners.

COMMON DEFENSES

COMMON DEFENSES raised in Texas cases - these are "excuses" or defenses often raised by defendants in premises liability cases--including the following:

Plaintiff's Negligence - This is a claim that the negligence of the plaintiff caused the plaintiff's injuries. This argument is always made when a person slips or trips - the plaintiff should have been watching where he or she was stepping. If a jury finds the plaintiff and defendant are both negligent, the jury assigns a percentage of fault to each party. If a plaintiff is more than 50% at fault, he or she recovers no damages. A finding of 50% fault or less on the part of a plaintiff reduces the plaintiff's recovery by that percentage. For example, if a jury finds the plaintiff's damages are $100,000, and that the plaintiff's negligence was 25% responsible for causing his or her injuries, the plaintiff's recovery is reduced by 25% (or $25,000) and the plaintiff recovers $75,000. However, if the jury finds the plaintiff was 51% or more responsible for causing his or her injury, the plaintiff recovers nothing.

Fault of Third Party - This defense asserts that the condition was caused by some other person aside from the building or property owner. From the early days of Texas law, a defendant could only blame a third party by suing that third party. In 2003, the Texas Legislature adopted a "Responsible Third Party" provision of the Civil Practice & Remedies Code (Section 33.004). This provision allows defendants to designate any person or company, including certain unknown persons, as "Responsible Third Parties," and obtain a jury finding as to that person's fault for the accident. In a premises case, the store operator may claim any substance on the floor was the fault of the unknown person who spilled it. If that person is unknown, he may be named "John Doe" and be designated as a Responsible Third Party, and if the jury finds that unknown person 50% responsible for the condition, the plaintiff loses half of his or her damages. While allowing a jury to consider the fault of all parties who can be sued is reasonable and fair, permitting defendants to name unknown people is often abused, and it can lead to very unfair results for injured people.

PROVING INJURIES AND DAMAGES - Often, the hardest part of a case is proving the extent of injury. Many conditions (sprains, strains and physical pain) cannot be medically tested, and often can only be proved by the testimony of the plaintiff. Defense lawyers often try to show the plaintiff is lying or exaggerating about his injuries or damages. Many good cases are lost because a plaintiff gives inaccurate or incomplete information to his lawyer or doctor. It is very important to be complete and honest in your answers to your lawyer's questions, and in statements to your doctors.

RECOVERABLE DAMAGES

Damages (which are the value of the wrong a plaintiff has suffered) - that can be recovered in a personal injury case are:

Medical Expenses - Only "reasonable and necessary medical care" can be recovered. The testimony of a doctor is usually required to prove treatment is reasonable and necessary, and that it is related to the accident. Unconventional forms of treatment, such as acupuncture or massage therapy, may be helpful to a plaintiff. However, unless a physician or a chiropractor testifies they are reasonable and necessary, these will generally be contested by the defendant's attorney, and a plaintiff cannot recover for them.

In 2003, the Texas legislature passed a statute that limits the medical charges a plaintiff can recover in a lawsuit to those amounts actually "paid or incurred." There has been a great deal of argument over what this language means, but the current interpretation is that if a plaintiff receives a health insurance discount, only the discounted amount may be recovered. This can dramatically reduce the amount a plaintiff can claim in a lawsuit.

Further, defendants will often argue that treatment is excessive, and therefore unreasonable and unnecessary, or that it is simply unrelated to the accident. Insurance companies have doctors who will testify that injuries are minimal, require little treatment, or were not caused by the accident. These doctors appear in numerous cases. Many of the doctors who appear for insurance companies rely on this source of income, and while they have little credibility, they are sometimes effective in jury trials, particularly if the plaintiff also has credibility problems. That is another reason why it is important to be very thorough in all your discussions with your doctors about your medical history.

Some lawyers for injury victims have doctors to whom they frequently send their clients. Some of these doctors are considered aggressive when it comes to treatment, including surgery. Our approach is to allow our clients to use doctors they know, or to whom they are referred by their family doctor or primary care physician. When we are asked to assist with the selection of a doctor, we help our clients find doctors who are qualified to provide excellent care. Our rule of thumb is that we will not recommend a doctor we would not personally see for treatment.

The cost of future medical treatment may also be recovered, but this must also be supported by medical testimony that such treatment will "probably" be required. Proving "probability" means a likelihood of greater than 50%.

Loss of Earning Capacity - This includes actual lost earnings, or in other words, wages that were lost in the past as a result of an injury. However, when a plaintiff has taken sick or vacation time from work, he may have no actual lost income. The law recognizes that wrongdoers should not benefit from plaintiffs having employee benefits such as sick or vacation time. This is fair, since using up sick or vacation time for an injury means that time off is lost for other purposes (such as illness or an actual vacation).

Loss of earning capacity, in certain circumstances, can also be proved when a plaintiff works in spite of his or her injuries. However, it is difficult to present a lost income claim to a jury based upon time when a plaintiff was actually working.

Some injuries affect the future earning capacity of a plaintiff. When supported by medical testimony, a plaintiff may recover for the loss of the ability to earn money in the future due to an injury.

Physical Pain and Mental Anguish - This element of damages is "noneconomic," which means it cannot be documented or proved in a direct monetary form. Instead, a jury is asked to assess an amount of money that will fairly and reasonably compensate the plaintiff for his or her physical pain or mental anguish due to an injury. There is no rule of thumb for evaluating physical pain or mental anguish, as they are so dependent upon the specific facts of the case and how well a plaintiff is able to convince a jury of what he or she is experiencing.

There are two types of mental anguish that arise from injuries. One is the mental anguish that naturally results from a painful condition. This is different from a "psychological injury" such as depression, which is a common component in an injury scenario. Both are recoverable under Texas law, but the proof required and the amount of allowed inquiry (called or discovery) into the plaintiff's prior psychological history is substantially greater when there is an allegation of a psychological injury. In other words, the defendant will be entitled to learn a great deal more about a plaintiff's psychological treatment in the past when a psychological injury claim is made.

Physical Impairment - This is another form of "noneconomic" damages, where the jury is asked to award of damages that will fairly and reasonably compensate a plaintiff for the loss of use of his physical abilities outside a work environment. This may vary from the inability to engage in sporting activities, to being unable to lift a grandchild, after an injury is sustained. Physical impairment damages must usually be supported by medical testimony.

Disfigurement or Scarring - When a plaintiff is scarred, or the injury changes their appearance (such as loosing a limb), the jury may award damages to compensate for this loss. While this claim is particularly applicable in burn injuries or those involving facial scars, evidence of a permanent change in gait (the way a person walks) or any change in appearance may support a claim of disfigurement.

Loss of Consortium or Household Services - When a married person is injured, his or her spouse has a claim for the impact of the injury upon the marital relationship. This includes the effect on a couple's sex life, but it also involves changes in their social life, and the companionship, support and advice spouses provide each other. "Loss of household services" is just what it sounds like - the impact of an injury upon a spouse's ability to do his or her share of the chores around the house. Juries generally do not respond favorably to consortium or household services claims in cases involving less than catastrophic injuries.

In cases involving severe, permanent and disabling injuries to a parent, children may also recover for loss of parent-child consortium. However, under current law, parents cannot recover for the loss of parent-child consortium as a result of an injury to a child.

Bystander Damages - This is a recovery for actually witnessing the event that causes a severe injury to a family member. If a plaintiff and her mother are involved in an automobile accident, and the daughter sees her mother suffer a severe injury, the daughter may recover for the mental anguish resulting from that traumatic event.

Wrongful Death Damages - Spouses, parents and children (including those legally adopted) are allowed to make claims for the wrongful death of a loved one. Other family members (siblings, grandparents, etc.) are not allowed to make a wrongful death claim, regardless of how close they were to the person who has died. Damages may be recovered for grief and bereavement, as well as the loss of the relationship with the loved one. In some cases, it is possible to prove a loss of inheritance.

Punitive Damages - These may be sought if the Defendant acted with the intent to injure, "malice," or "gross negligence," which is a conscious disregard for the health and safety of others, and the defendant's knowledge that his or her conduct creates an extreme degree of risk to others.

FACTORS AFFECTING PROSECUTION OF A CASE

Some valid cases may not be accepted by an attorney, due to factors that affect the attorney's ability to handle the case. These include:

Cost of Prosecution - An attorney may spend thousands of dollars and hundreds of hours preparing a case for trial. For this reason, many lawyers only accept cases involving serious injuries. If a plaintiff has seen many different doctors, the cost of proving medical treatment rises. More complex cases require expert witnesses, such as Accident Reconstructionists, whose services are extremely expensive. Most lawyers evaluate a case based upon the severity of the injury and the cost of litigating the case.

Difficulty of Proof of Liability- If proving the fault of the defendant, or overcoming the comparative fault of the plaintiff, are obstacles, a lawyer may refuse to accept the case. The lawyer will assess the risk of losing and the potential recovery. A lawyer working on a contingent fee may be willing to accept a greater risk in a case involving more severe injuries.

Statute of Limitations - Texas has a two (2) year statute of limitations in tort actions. Suits not filed by two (2) years from your date of injury are barred forever. Texas law also requires written notice of a claim must be given to units of city, state or federal government, often within 90 days to six months of an event. Failure to give proper notice may result in a claim being lost. Limited exceptions to these rules may affect the rights of minors and incompetents. However, these deadlines are rigidly construed. If you pursue a case, you should discuss these deadlines with an attorney.

Most attorneys are hesitant to accept a case when the deadline is imminent. For this reason, it is important to contact an attorney early in the process, and not wait until the deadline for filing suit is near.

OTHER CONSIDERATIONS IN FINDING A LAWYER

CONTINGENT FEES - Lawyers who regularly represent individuals in personal injury and wrongful death cases work on a contingent fee and expense basis. This means the fee is a percentage of the recovery (usually 33.3% or "one-third" if a lawsuit has not been filed, and 40% if suit has been filed). Expenses are charged to the client's share of the recovery. However, no fees or expenses are recovered by the lawyer unless your case is won or settled.

BOARD CERTIFICATION - Lawyers who specialize in a particular field of law may become "Board Certified by the Texas Board of Legal Specialization." Lawyers who are Board Certified have been in practice at least five years, and have undergone a process by which they demonstrate special competence in an area of law. To be Board Certified, a lawyer must dedicate a substantial portion of his or her practice to that area of law, obtain recommendations from peers, and pass a test that qualifies the lawyer to hold himself or herself out as a Board Certified specialist. Board certification is not a guarantee of a good lawyer, but it is a good place to start when looking for an attorney.

WHAT TO DO IF YOU HAVE BEEN INJURED

If you have been injured (or if a family member has been injured or has died) on the property of another person, the following steps should be taken:

Seek Medical Care Immediately - Any person who has suffered an injury in any type of accident needs to seek appropriate medical care immediately. For any serious injury, that means going to an emergency room at a good hospital. Follow-up care may take place at a doctor's office, but an initial evaluation of a serious injury should only be performed at a hospital emergency room.

Any delay in seeking medical care will increase the risk an injury will cause additional harm. It is also grounds for a defendant or an insurance company to claim the injury was not serious or did not result from the accident.

Report The Accident To Store Personnel or People in Charge of the Premises - This should be done before you leave the premises, if possible.

Make a List of All Witnesses to the Incident - When an accident is investigated by the store personnel, witness information is often excluded. Witnesses may make the difference between winning and losing a case. Make sure you obtain the address and telephone numbers of all witnesses.

Take Photographs - Make a photographic record of the place where the accident occurred, and of the areas of your body which have visible injuries.

Do Not Give a Recorded Statement - Until you have consulted an attorney, you should not consent to a recorded or written statement. This is particularly true if you are injured or on medication.

Discuss Your Rights with an Attorney - Most lawyers (including our firm) will discuss an injury case with you and not charge for an initial consultation. Find an attorney who has the experience and expertise to represent you, and discuss the further steps you need to take to protect your legal interests. In severe injury and wrongful death cases, hiring an attorney is almost always the right thing to do.

We hope this information helps you understand more about Premises Liability cases, and what is involved in an effort to prosecute and win a case in this area of the law. This information is not intended to provide legal advice on a specific case. To find out more about your case, call or email us for a no-cost consultation and case evaluation.

Call us with any questions you may have about your Premises Liability case, and we will be happy to help you.

WHAT YOU NEED TO KNOW ABOUT MEDICAL MALPRACTICE CASES
Steve Waldman, JD
Board Certified - Personal Injury Trial Law
Texas Board of Legal Specialization

This page will discuss what you need to know about the law of medical malpractice cases. These are cases where a personal injury or wrongful death occurs as a result of negligence of a physician or other healthcare provider. The information in this page will help you recognize a potential case and take steps to protect your rights.

ELEMENTS OF PROOF

The Plaintiff (the person bringing the suit) must prove:

1. The Defendant (person being sued) was negligent AND

2. The negligent conduct probably caused the plaintiff's injuries or damages.

Negligence occurs when a doctor or nurse fails to exercise ordinary care.

"Ordinary care" is defined by the conduct of similar practitioners, and is sometimes referred to as the standard of care. Medical malpractice is one of the only areas of tort (personal injury) law that recognizes the custom in the industry as proof of proper conduct. In virtually all other cases, a jury is entitled to evaluate the evidence and decide "the way everyone does it" is not good enough.

Many bad medical results do not result from negligence. Occurrence of a known risk of an accepted treatment, or an exercise in reasonable judgment, seldom will support a claim of medical negligence. A doctor or nurse does not have to be correct in order to exercise ordinary care. This is often difficult for people to accept, in light of their expectations.

Causation is equally important to the case. Plaintiffs must prove their damages (death or injury) were caused by the negligence. Since the plaintiff is usually sick or injured at the time of treatment, he must show the negligence magnified the illness or injury, or created a new condition, resulting in a significantly worse outcome. In other words, had the malpractice not occurred, the patient's condition would have been much better. This proof must be established on the basis of probability. Showing a person might possibly have done better is not enough.

DIFFICULT TO PROVE

Medical malpractice cases are extremely difficult to prove. One reason they are so difficult is that you are required to have the testimony of one doctor (or other healthcare provider) against another, and the testifying expert must pass court scrutiny to serve as an expert. This usually involves having a doctor testify against another doctor of the same specialty. Further, when the harm affects a different area of the body, a separate doctor must testify to the nature and extent of the injury. For example, if an anesthesiologist makes a medical error and causes brain damage, the case will require testimony from another anesthesiologist to prove malpractice, and testimony from a neurologist to prove the extent of the injury.

Further, the Texas Legislature has enacted numerous laws (in Chapter 74 of the Civil Practices and Remedies Code,) that impose numerous burdens on plaintiffs. For example, a plaintiff must provide reports from expert witnesses attesting to negligence, causation and damages, within 120 days of filing suit. Failure to comply with this requirement will result in the lawsuit being dismissed with prejudice (meaning it cannot be refiled), and the plaintiff being assessed with the defendant's costs. Numerous decisions of the Supreme Court of Texas have interpreted this report requirement very strictly, so lawyers who take on these cases face a substantial risk of "losing on a technicality."

Additionally, since 2003, damages in malpractice cases have been restricted by statute. The most significant change was the limitation on the recovery of "noneconomic damages." These are the damages other than medical expenses and lost earnings. Noneconomic damages include physical pain, mental anguish, physical impairment, disfigurement, and all the emotional losses associated with the death or severe injury of a loved one (grief and bereavement, and loss of the relationship or "loss of consortium"). Noneconomic damages are limited to $250,000 against all doctors. Regardless of how many people are making claims arising out of the treatment of a single patient, or how many doctors are at fault, the maximum recovery for noneconomic damages will be $250,000.

For example, if five doctors work together on the treatment of a mother of five children, and the doctors collectively make a decision which is negligent and causes the death of that mother, the children can only recovery $250,000 for their grief and the loss of their relationship with their mother.

If the plaintiff can prove negligence on the part of another non-physician health care provider (such as a hospital or nursing home), another $250,000 can be awarded for noneconomic damages. If multiple non-physician health care providers are found at fault, a total of $500,000 in noneconomic damages may be assessed against non-physician health care providers. In most cases involving substandard care of a patient, it is very difficult to prove negligence by both a doctor and a hospital. Proving fault against multiple non-physician health care providers is extremely rare. In the vast majority of cases we evaluate, the maximum noneconomic damage recovery is $250,000. Unfortunately, many malpractice cases are virtually entirely noneconomic damage cases. In many cases involving the death of a child or non-working adult (elderly persons, stay-at-home moms), or injuries to children or non-working adults which do not result in a continued need for significant medical care, the recovery of damages is limited to $250,000.

For this reason, many valid cases of medical or hospital negligence cannot be prosecuted. The high cost of litigation, coupled with the risk associated with these cases, make these cases a "bad deal" for attorneys and their clients. Attorneys cannot justify spending $50,000 or more on a high-risk case if the most the attorney can recover is the return of his expenses and a fee based upon a recovery limited to $250,000.

RECOVERABLE DAMAGES

Damages (which are the value of the wrong a plaintiff has suffered) that can be recovered in a personal injury case are:

Medical Expenses - Only "reasonable and necessary medical care" can be recovered. The testimony of a doctor is usually required to prove treatment is reasonable and necessary, and that it is related to the accident. Unconventional forms of treatment, such as acupuncture or massage therapy, may be helpful to a plaintiff. However, unless a physician or a chiropractor testifies they are reasonable and necessary, these will generally be contested by the defendant's attorney, and a plaintiff cannot recover for them.

In 2003, the Texas legislature passed a statute that limits the medical charges a plaintiff can recover in a lawsuit to those amounts actually "paid or incurred." There has been a great deal of argument over what this language means, but the current interpretation is that if a plaintiff receives a health insurance discount, only the discounted amount may be recovered. This can dramatically reduce the amount a plaintiff can claim in a lawsuit.

Further, defendants will often argue that treatment is excessive, and therefore unreasonable and unnecessary, or that it is simply unrelated to the accident. Insurance companies have doctors who will testify that injuries are minimal, require little treatment, or were not caused by the accident. These doctors appear in numerous cases. Many of the doctors who appear for insurance companies rely on this source of income, and while they have little credibility, they are sometimes effective in jury trials, particularly if the plaintiff also has credibility problems. That is another reason why it is important to be very thorough in all your discussions with your doctors about your medical history.

Some lawyers for injury victims have doctors to whom they frequently send their clients. Some of these doctors are considered aggressive when it comes to treatment, including surgery. Our approach is to allow our clients to use doctors they know, or to whom they are referred by their family doctor or primary care physician. When we are asked to assist with the selection of a doctor, we help our clients find doctors who are qualified to provide excellent care. Our rule of thumb is that we will not recommend a doctor we would not personally see for treatment.

The cost of future medical treatment may also be recovered, but this must also be supported by medical testimony that such treatment will "probably" be required. Proving "probability" means a likelihood of greater than 50%.

Loss of Earning Capacity - This includes actual lost earnings, or in other words, wages that were lost in the past as a result of an injury. However, when a plaintiff has taken sick or vacation time from work, he may have no actual lost income. The law recognizes that wrongdoers should not benefit from plaintiffs having employee benefits such as sick or vacation time. This is fair, since using up sick or vacation time for an injury means that time off is lost for other purposes (such as illness or an actual vacation).

Loss of earning capacity, in certain circumstances, can also be proved when a plaintiff works in spite of his or her injuries. However, it is difficult to present a lost income claim to a jury based upon time when a plaintiff was actually working.

Some injuries affect the future earning capacity of a plaintiff. When supported by medical testimony, a plaintiff may recover for the loss of the ability to earn money in the future due to an injury.

Physical Pain and Mental Anguish - This element of damages is "noneconomic," which means it cannot be documented or proved in a direct monetary form. Instead, a jury is asked to assess an amount of money that will fairly and reasonably compensate the plaintiff for his or her physical pain or mental anguish due to an injury. There is no rule of thumb for evaluating physical pain or mental anguish, as they are so dependent upon the specific facts of the case and how well a plaintiff is able to convince a jury of what he or she is experiencing.

There are two types of mental anguish that arise from injuries. One is the mental anguish that naturally results from a painful condition. This is different from a "psychological injury" such as depression, which is a common component in an injury scenario. Both are recoverable under Texas law, but the proof required and the amount of allowed inquiry (called discovery) into the plaintiff's prior psychological history is substantially greater when there is an allegation of a psychological injury. In other words, the defendant will be entitled to learn a great deal more about a plaintiff's psychological treatment in the past when a psychological injury claim is made.

Physical Impairment - This is another form of "noneconomic" damages, where the jury is asked to award of damages that will fairly and reasonably compensate a plaintiff for the loss of use of his physical abilities outside a work environment. This may vary from the inability to engage in sporting activities, to being unable to lift a grandchild, after an injury is sustained. Physical impairment damages must usually be supported by medical testimony.

Disfigurement or Scarring - When a plaintiff is scarred, or the injury changes their appearance(such as loosing a limb), the jury may award damages to compensate for this loss. While this claim is particularly applicable in burn injuries or those involving facial scars, evidence of a permanent change in gait (the way a person walks) or any change in appearance may support a claim of disfigurement.

Loss of Cconsortium or Household Services - When a married person is injured, his or her spouse has a claim for the impact of the injury upon the marital relationship. This includes the effect on a couple's sex life, but it also involves changes in their social life, and the companionship, support and advice spouses provide each other. "Loss of household services" is just what it sounds like--the impact of an injury upon a spouse's ability to do his or her share of the chores around the house. Juries generally do not respond favorably to consortium or household services claims in cases involving less than catastrophic injuries.

In cases involving severe, permanent and disabling injuries to a parent, children may also recover for loss of parent-child consortium. However, under current law, parents cannot recover for the loss of parent-child consortium as a result of an injury to a child.

Bystander damages - This is a recovery for actually witnessing the event that causes a severe injury to a family member. These are not available in medical malpractice cases, even if the family witnesses the negligent treatment and the harm it causes.

Wrongful Death Damages - Spouses, parents and children (including those legally adopted) are allowed to make claims for the wrongful death of a loved one. Other family members (siblings, grandparents, etc.) are not allowed to make a wrongful death claim, regardless of how close they were to the person who has died. Damages may be recovered for grief and bereavement, as well as the loss of the relationship with the loved one. In some cases, it is possible to prove a loss of inheritance.

Punitive Damages - These may be sought if the Defendant acted with the intent to injure, "malice," or "gross negligence," which is a conscious disregard for the health and safety of others, and the defendant's knowledge that his or her conduct creates an extreme degree of risk to others.

FACTORS AFFECTING PROSECUTION OF A CASE

Some valid cases may not be accepted by an attorney, due to factors that affect the attorney's ability to handle the case.

Cost of Prosecution - An attorney may spend thousands of dollars and hundreds of hours preparing a case for trial. For this reason, many lawyers only accept cases involving serious injuries. Malpractice cases always require testimony from expert witnesses, and often multiple experts. Most lawyers evaluate a case based upon the potential recovery and the cost of litigating the case. Because damages are limited in malpractice cases, many valid claims cannot be prosecuted.

Difficulty of Proof of LiabilityBecause the standard of liability is so onerous, and the procedural steps to recovery are so difficult, medical malpractice cases have an extremely high rate of failure. This causes many lawyers to refuse all but the most egregious cases involving very high damages.

Statute of Limitations and Notice - Texas has a two (2) year statute of limitations in tort actions. All suits not filed by two (2) years from your date of injury (usually, the date of the treatment complained of) are barred forever. Texas law also requires written notice of a health care liability claim at least sixty (60) days prior to filing suit. That notice must include a lengthy disclosure of prior and subsequent medical treatment and an authorization permitting the health care provider or his insurer to obtain copies of your medical records. Proper notice received (by certified mail, return receipt requested) by the health care provider before the expiration of the limitations period will toll the limitations period for an additional 75 days. Written notice of a claim must be given to hospitals owned by units of city, state or federal government, often within 90 days to six months of treatment. Failure to give proper notice may result in a claim being lost. Limited exceptions to these rules may affect the rights of minors, incompetents, and persons who do not discover their injury within two years. However, these rules are extremely complex, and most of the deadlines are rigidly construed. Should you wish to pursue a malpractice case, you should discuss these deadlines with an attorney.

OTHER CONSIDERATIONS IN FINDING A LAWYER

Contingent Fees - Lawyers who regularly represent individuals in personal injury and wrongful death cases work on a contingent fee and expense basis. This means the fee is a percentage of the recovery (usually 33.3% or "one-third" if a lawsuit has not been filed, and 40% if suit has been filed). Expenses are charged to the client's share of the recovery. However, no fees or expenses are recovered by the lawyer unless your case is won or settled.

Board Certification - Lawyers who specialize in a particular field of law may become "Board Certified by the Texas Board of Legal Specialization." Lawyers who are Board Certified have been in practice at least five years, and have undergone a process by which they demonstrate special competence in an area of law. To be Board Certified, a lawyer must dedicate a substantial portion of his or her practice to that area of law, obtain recommendations from peers, and pass a test that qualifies the lawyer to hold himself or herself out as a Board Certified specialist. Board certification is not a guarantee of a good lawyer, but it is a good place to start when looking for an attorney.

WHAT TO DO IF YOU HAVE BEEN INJURED BY MEDICAL ERROR

If you have been injured (or if a family member has been injured or has died) as a result of a medical error, the following steps should be taken:

Seek Medical Care ImmediatelyIt is important to have the condition evaluated, usually by a doctor unaffiliated with the doctor or healthcare provider you believe committed malpractice.

Obtain Copies of Medical RecordsTry to obtain copies of your medical records as soon as possible. It is best to refrain from making comments about any intention to hire a lawyer or file a lawsuit. On some occasions, records are changed after a claim is asserted. If you can obtain your records without the healthcare provider knowing you are considering a claim, there is a chance you will be able to prove any subsequent modification.

Write a detailed chronology of events - It is important to write down a detailed (minute by minute) diary of everything that happened or was said during the course of the treatment. This should be done as soon as possible, before details of the events become fuzzy.

Make a list of witnesses - Witnesses may make the difference between winning and losing a case. Make sure you obtain the address and telephone numbers of all witnesses, including all persons who participated in the questionable healthcare, and all friends and family members who were present during such treatment.

Take Photographs - Make a photographic record of areas of your body which have visible injuries.

Discuss Your Rights with an Attorney - Most lawyers (including our firm) will discuss an injury case with you and not charge for an initial consultation. Find an attorney who has the experience and expertise to represent you, and discuss the further steps you need to take to protect your legal interests. In severe injury and wrongful death cases, hiring an attorney is almost always the right thing to do.

We hope this information helps you understand more about medical malpractice cases, and what is involved in an effort to prosecute and win a case in this area of the law. This information is not intended to provide legal advice on a specific case. To find out more about your case, call or email us for a no-cost consultation and case evaluation.