How the “Tort Reformers” Took Away Your Rights

So this is how the tort deformers did it. They did not tell the truth. They just told their lies often enough, people accepted them as truth. You have to hand it to the tort deformers – they are clever.

“Tort reform” is the name given to the wholesale gutting of the right of people like you to obtain fair and just compensation for your injuries caused by the fault of others, and the right of juries to sit in judgment of bad actors such as drunk drivers and corporations that knowingly make dangerous products. “Tort reform” is the abandonment of centuries of legal tradition dating back to the Bible, developed through years of refinement by the courts of England and the United States (mostly by stodgy old judges who could never be called “liberal”). The purpose of tort law is to punish wrongdoers (some would call them “evildoers”), and shift the economic harm caused by their negligence to the victims.

With a few strokes of the pen, by legislatures and judges put into power by people advocating “tort reform,” your rights to sue for damages when you are injured or your loved ones are killed by the fault of others have been greatly reduced, and in some cases (such as medical malpractice) obliterated.

The thing is – all the talk about the need for “tort reform” was grounded in lies. We have had no “lawsuit crisis” in America. Our court system may have needed some tweaking, and judges and legislatures have been tweaking the rights of litigants for years. So how did these big corporations and insurance companies who were the bucks behind “tort reform” turn “reform” into “deform” (hence my term – “tort deform”)?

It turns out a couple of brainiacs wrote a book about the brain that explains it all. Sam Wang, an associate professor of molecular biology and neuroscience at Princeton, and Sandra Aamodt, a former editor in chief of Nature Neuroscience, have written the book, Welcome to Your Brain: Why You Lose Your Car Keys but Never Forget How to Drive and Other Puzzles of Everyday Life. In their op-ed piece in today’s New York Times, they explain how the Swiftboaters made John Kerry look like a coward, and how the rightwingers are now trying to label Barack Obama a Muslim. They tell the lie over and over, and eventually, people forget where they heard it. It becomes imprinted on their brain, and the source of the information is lost in translation from one part of the brain (the hippocampus) to the other (the cerebral cortex). Genius!!

So, when the tort deformers told you we needed to rush to destroy medical malpractice law in Texas, or else doctors would leave and never come back, they knew the statistics did not back up their claims. They knew doctors left rural Texas for the big cities for the same reason other businesses leave the country for the city – more opportunity (that is, money). But, like lemmings, many of us lapped up that pablum, and in 2003 we passed Proposition 12. Now, if your loved one is killed by the negligence of a doctor or hospital, just try to find a lawyer. Chances are, you won’t. And the effects of tort deform go on and on, as your rights to seek compensation in the courts fall victim to repeated attacks by a legislature and a Supreme Court who are, to borrow a phrase, dancing with the ones who brung ‘em.

So, what should you do? This is not a political column (OK, it is this time), but I suggest you do three things. First, remember that the political party that took away the rights of consumers, patients, workers and others to seek fair compensation for their injuries, is the party of our current governor and president (that would be the Republicans). Second, don’t just accept the words of pundits and commercials. Read. Ask questions. Talk to both sides, not just the one with the most money who can flood the media with its version of the truth. Become informed. Then, finally, go to the polls and VOTE!

Steve Waldman
Board Certified – Personal Injury Trial Law
Texas Board of Legal Specialization
Grossman & Waldman, LLP
1415 Louisiana, Suite 3555
Houston, Texas 77002-7392
Telephone (direct): 713.400.4979
Telephone (main): 713.655.9999
Telephone (toll-free): 800.655.9939
Facsimile (direct): 888.333.3985
Facsimile (main): 713.752.0311
Email: swaldman@gwlawyers.com
Website: www.gwlawyers.com

Whose Records Are These Anyway?

I must be having an Andy Rooney Moment. For those who do not watch “60 Minutes” on CBS, Andy is a curmudgeon (a bad-tempered, difficult, cantankerous person, according to www.dictionary.com) whose disagreements with the world and its peculiarities are announced in a high-pitched squeal at the end of most shows. The source of my Moment is medical records. If you have ever had a personal injury claim, as a claimant or a lawyer, you understand my frustration at the difficulty, cost and delay of obtaining medical records. State law regulates how much a medical facility can charge for copies of records, and it is not cheap. Hospitals have to make billing records available for free, on a limited basis, but that does not apply to doctors (yes, they can charge you to find out how much you owe them). However, the law is silent on attitude, and while some providers have helpful, kind souls who seem to live for the opportunity to furnish you with your medical records, there are plenty of others who guard those records as if they were state secrets.

And then there’s HIPAA. This is another law that was passed to protect you, and what HIPAA (the Health Insurance Portability and Accountability Act of 1996) has done to the medical community is to send it into a virtual lockdown. You want your medical records? You must sign an authorization that is HIPAA-certified (meaning, some lawyer hired by someone said this authorization passes HIPAA muster). You cannot see anything that has anyone’s name on it – HIPAA says so! I am surprised doctors do not make you go into a private room to sign in. After all, when you see other patients’ names on the list, that is technically a HIPAA violation.

We cannot prosecute your claim without copies of your medical bills and records. Obtaining those copies is a process that can take months. What can you do? Excellent question.

First, request a full and complete copy of your itemized billing statement from every healthcare provider. Because subrogation (more about that at another time, but this deals with reimbursing your health insurer) is part of every claim, it is best to obtain that itemized statement after all insurance, Medicare or other third party payments have been made.

Second, request a full and complete copy of your chart – all medical records in the possession of the provider that relate to you.

If you are charged for any of these copies, ask them politely to provide you with a copy of their written policy regarding charging for records.

If you cannot afford to obtain these records, we (or your lawyer) can obtain them for you. The process will take longer, and the cost may be slightly higher (particularly if a records service is used, which can add around $50 per provider to the cost). The primary difference is speed. Most providers are more cooperative with a patient than a lawyer.

When a client comes to us with his or her records, our ability to screen the case (decide if we can accept it) and process the claim are much more efficient. We can do it the other way, and in most cases, we obtain all the records. However, this is a helpful hint for those of you who want to move the process along.

And, to answer the question posed by the title of this post, the answer is: Yours.

Steve Waldman

More About ERISA – You May Have a Claim!

The Supreme Court of the United States recently announced an opinion in Metropolitan Life Insurance Co. v. Glenn. This decision provides more support for individuals seeking to hold their ERISA plan fiduciaries (usually the trustees, but in some cases others) responsible for wrongfully denying benefits due under the Plan.

For many years, companies have been drawing up employee benefit plans to provide for the life, health and disability “insurance” needs of their employees, all under the aegis of the Employee Retirement Income Security Act of 1974, or ERISA. The lawyers who work in the ERISA field have almost uniformly represented employers and other sponsors of ERISA plans. In other words, it has been very difficult to find a lawyer to represent “the little guy” who is being denied benefits due to him under the ERISA plan. Most lawyers, myself included (until recently) regarded ERISA as a “black hole,” from which no light, reason or justice could escape.

My recent efforts on behalf of a client have changed my entire view of ERISA. As I have come to learn – with the assistance of a very fine lawyer in Austin, whose practice is mostly for the benefit of ERISA plans – there are remedies for individuals after all.

As I explained in a recent post, I am now taking ERISA cases. If you have been denied medical, life or disability benefits by your employer’s ERISA plan, call me at 713.655.9999, or toll-free at 800.655.9939. Or you can email me at swaldman@gwlawyers.com. There is no charge to review your ERISA claim, and all fees on representing ERISA claimants are contingent. This means you only pay me a fee or expenses if I win your case.

Steve Waldman

Board Certified – Personal Injury Trial Law

Texas Board of Legal Specialization

Grossman & Waldman, LLP

1415 Louisiana, Suite 3555

Houston, Texas 77002-7392

Telephone (direct): 713.400.4979

Telephone (main): 713.655.9999

Telephone (toll-free): 800.655.9939

Facsimile (direct): 888.333.3985

Facsimile (main): 713.752.0311

Email: swaldman@gwlawyers.com

Website: www.gwlawyers.com

Are We a Full Service Law Firm? We Even Help With Gas Prices!

Robbyn, one of our legal assistants directed me to the following website:

http://autos.msn.com/everyday/gasstations.aspx?zip=&src=Netx

If you click on this website and enter your zip code, it will tell you where to find the lowest gas prices in that area. What a great find!

These spiraling gas prices are making everyone miserable. Commuting to work is more expensive. Going on vacation is less affordable. Many of us are changing our daily routines to accommodate the pain at the pump.

Thanks to Robbyn, we can all save a little!

Steve Waldman

In Praise of (My) Chiropractor(s)

Dr. Rick Peters is my chiropractor, and I consider him a friend. Chiropractors are one of the hardest working healthcare providers. Unlike some medical doctors who seldom touch their patients, chiropractors truly are “in the trenches,” actually laying hands on their patients in an effort to heal them. I have received treatment from several chiropractors, and for the most part, my experiences have been good. However, I am realistic when dealing with them professionally, and while the disrespect they receive from the insurance community is staggering and undeserved, it is a fact of life in my work. More about that later.

First, I want to talk about a recent experience I had with Dr. Rick. I have an ongoing issue with my neck. Like many people, I have a neck that has aged faster than the rest of my body. Periodically, I have stiffness and discomfort, usually from sitting at a computer all day. Usually, when my neck or back acts up, I go see Dr. Rick, and after a few treatments, I can go back to sitting at my computer all day.

Recently, I noticed my vision becoming blurry toward the end of the day. I also noticed that my neck was stiff and sore around the same time. My eye doctor found nothing to explain the blurred vision, so I put two and two together and concluded my stiff neck was causing my blurred vision. I called Dr. Rick.

He recommended I buy computer reading glasses. Rick explained that my eyes, and not my neck, were the problem. As I strained to see my computer, he said, I was thrusting my head closer to my computer. The result was that I was straining my eyes and my neck to the point where both were bothering me.

For those of you who think chiropractors never met a patient they could not treat forever, Dr. Rick is living proof to the contrary. On prior occasions, he has resolved my aching neck or back with three or four treatments. This time, he cured me with a new set of glasses (provided by others, of course). What a smart and principled doctor he is!

So, why do chiropractors “get no respect,” as Rodney Dangerfield might put it? It is true – insurance companies and the lawyers who represent them treat chiropractors with so little regard, it is shameful. Personal injury claimants whose treatment is primarily chiropractic have their claims downgraded by many insurers. Insurance lawyers have, over the course of my career, been downright ugly to chiropractors, accusing them of attempting to cure cancer and the like, rather than focusing on the real issues of the case. There have been quacks in every field of medicine, and chiropractic is no exception. However, after four years of chiropractic school, these doctors know what they can and cannot treat.

When my clients ask me about chiropractic, I tell them the truth. Chiropractors can provide excellent care. However, they are not treated fairly by insurance companies, and this must be considered when charting the medical course for a personal injury claimant. Further, insurance lawyers have begun to question whether or not courts will accept the testimony of chiropractors to establish the relationship between an accident and an injury (this is being fought out in the courts, and so far, chiropractic testimony is holding up).

From my point of view, I prefer that an orthopedic surgeon, neurosurgeon or neurologist diagnose a spinal condition. Once it is determined that a person does not need surgery, chiropractic care provides an excellent form of treatment.

This may cause some chiropractors, who feel completely competent to care for injured patients from start to finish, some consternation. I do not dispute their position from a medical point of view. However, I am often asked to help my clients make decisions regarding the direction of their medical care, and I must take into account all aspects of the question, including the impact of those decisions on their cases.

Typical to his realistic and fair-minded world view, Dr. Rick understands this. He is extremely comfortable diagnosing problems within his specialty, and having had my neck problem reviewed by a neurosurgeon (who said it is bad, but I don’t need surgery…yet), I turn to Dr. Rick to get to the root of what is affecting my nerve roots (that is a bad chiropractic joke). As a matter of fact, it was that neurosurgeon who recommended Dr. Rick to me.

If you have an injury to your spine, the treatment choices that face you are a minefield. There are medical doctors and chiropractors who have made a lot of money offering excessive and unnecessary treatment to people like you. However, most of them are like Dr. Rick – dedicated professionals who have their patients’ interests at heart. Finding the right doctor is usually the most important decision a personal injury claimant makes. Assisting in that task is a role I take very seriously. I try to follow one rule of thumb – I do not recommend doctors I would not see myself.

This most recent experience with Dr. Rick Peters has reaffirmed another important rule of thumb. Patients should not try to diagnose themselves. That includes me. If you are injured, find the best doctor and listen to him. Even if he tells you to get a new pair of glasses!

Steve Waldman

What is ERISA and How Does it Affect My Injury Case?

The Employee Retirement Income Security Act of 1974 (ERISA) is very important to the lives of most employees of large companies. This law governs employee benefit plans, including what many people mistakenly believe is “health insurance.” Chances are, if you work for a big company, you do not have health insurance but health coverage under a plan of employee benefits that is funded by your employer. You may have a card that says “Blue Cross Blue Shield,” “United Health Care” or “Aetna,” but the bucks behind the coverage are those of your employer, not an insurance company. The insurance company is acting as a “Third Party Administrator” or TPA, which means it is being paid a fee to administer the plan. It looks and feels like insurance, but it is not, and if you are a Texan, there was an important distinction that affected your personal injury case, until June, 2007, when the Supreme Court of Texas decided the case of Fortis Benefits v. Cantu.

Prior to the Fortis Benefits case, Texas law held that an insurance company seeking subrogation (a “subrogee”) could not assert the claim unless the insured person (or “subrogor”) was “made whole.”

WHAT????

Virtually all health insurance policies and ERISA plans contain a subrogation or reimbursement provision. That provision says if you sue someone for damages because of an injury, and you obtained treatment under the policy or plan, the insurance company or health plan can get its money back from your recovery. That sounds reasonable to some, and totally unreasonable to others. We can discuss that another day. Suffice it to say that this is an enforceable part of an insurance contract or ERISA plan. You do not have to pay the money back if you do not pursue an injury claim, and if you lose your injury claim, you do not have to pay the money back. However, if you obtain a settlement or collect a judgment for damages (which virtually always includes a recovery for the medical expenses the policy or plan paid), the insurer or plan is reimbursed.

So, what happens when there is not enough insurance on the defendant (the person being sued) to pay all the plaintiff’s (the person bringing the suit) damages? What if you have suffered a permanent injury and can no longer work, resulting in lost income over the course of your lifetime of $500,000.00 (I am picking a number to illustrate, but for a person who is 50 years old who earns $50,000.00 per year, the math works out)? What if that defendant only has the minimum of $25,000.00 in liability coverage? Who gets the money?

Under Texas law, for many years, insurance companies could not recover anything in this situation. If the plaintiff was not “made whole,” i.e., recover all his or her damages, the insurance company could not subrogate. This “made whole doctrine” is excellent law. It was the law in Texas until our Supreme Court of Texas changed over thirty years of precedent in the Fortis Benefits case and said, essentially, that insurance companies are more important than you are. What a shame.

What can you do about it? Well, there are two things you can do.

First, you can vote for the candidates for Supreme Court, state senate and state legislature who are pro-consumer and pro-employee, and against those who are pro-insurance. If you need any help figuring out which party has the interests of consumers and employees at heart, drop me an email at swaldman@gwlawyers.com, and I will be happy to discuss it with you further.

Second, you can write your state senator and state representative, and tell them to pass a law that overturns the Fortis Benefits case. They will know exactly what you mean, so do not worry about explaining all this to them.

Unfortunately, your options are not so limited when an ERISA (employer funded) plan is involved. Under ERISA, which is administered by federal law, the plan comes first. If the plan administrator (really, the trustees) says, “We want all the money!” – they get all the money! That is extremely unfair, and I sincerely hope that someone in Congress introduces a law to change this. Please, write your US senator and representative in Congress and tell them ERISA law needs to be changed to include the made whole doctrine!

If you want some background on ERISA, you can find it from the US Department of Labor website at http://www.dol.gov/dol/topic/health-plans/erisa.htm. As with many federal laws, the title does not tell the full tale. In the opinion of many, ERISA was not passed to protect employees or their retirement income (witness the many pension plans that have lost money since 1974 – see this 2005 New York Times article http://www.nytimes.com/2005/09/18/business/18pensions.html?_r=1&oref=slogin.

What ERISA has done is permit employers to fund health and benefit (including retirement) plans, and then insulate those plans from the employer. While ERISA law provides some enforcement mechanisms for employees who are mistreated by their employers’ plans, by and large the employer and the plan are immune from lawsuits by employees. The opportunities to sue to protect your rights are limited, there are essentially no suits for damages (you can sue for benefits), and because ERISA is a minefield of regulation and obstruction, and cases must be filed in federal court (where many lawyers fear to tread), there are virtually no lawyers who accept cases against ERISA plans.

We at Grossman & Waldman, LLP, have tossed our hat into the ERISA ring. We have taken our first purely ERISA case, and if the case is not resolved to our client’s satisfaction, we intend to file suit to recover our client’s benefits, which have to date been denied. We are working with an ERISA consulting attorney, to help us with those regulations and obstructions, but that is something we at G&W are willing to do. If it advances our clients’ interests to bring in co-counsel, we do so. It costs our clients nothing (we share the fee our client contracts with us to pay), and if all goes according to plan, everyone is happy.

At least, that is the plan!

Steve Waldman

The Value of Life?

The Value of Life?

A college classmate of my daughter asked me a question recently: “How can you put a monetary value on a life? If someone in my family died, I would not want to make money off of their death.”

So often, we lawyers deal with the mundane issues of our work – filing motions, taking depositions, preparing cases for trial (to name a few) – and we do not stop to think about fundamental questions like these. They are good questions, and they deserve more than the quick response I gave him.

I have represented many parents of children whose lives were taken due to the negligence of others. There is no loss greater than the loss of a young child. When the promise of youth is extinguished, the hopes and dreams of an entire family are shattered. No one can say or do anything to restore that loss. When that child’s death is caused by the fault of others, no lawyer can undo the damage caused by the loss.

When an income-producer (such as a parent supporting minor children) dies due to the fault of others, we can sue for the loss of financial support. However, young children provide no financial support. Children cost money to raise and support. The same applies with elderly parents and “stay at home” moms; the loss caused by their death is “non-economic.” Grief, bereavement and mental anguish are the true measure of the loss.

So why do we allow people to seek money damages for these intangible losses? Why do people who have lost loved ones due to the negligence of others pursue lawsuits for money damages?

The simple answers are:

(1) Victims need to do something to hold others responsible, and

(2) There is nothing else we can do to hold others responsible.

For those who have never experienced this tragedy, it is often hard to understand. However, the need to take some action to expose the cause of a loved one’s wrongful death is virtually universal. When fault is discovered, the need to take some action to hold the guilty party accountable is just as universal.

When people die from advanced age, it is sad, but the loss is part of life as we expect it. Even when illness is the cause of death, there is a measure of acceptance that some things are beyond anyone’s control. However, when a careless driver takes the life of a child, there is no acceptance. Even though we all realize that there are risks in life, we do not expect they will affect us. When someone’s carelessness takes away a spouse, parent or child, those left behind feel a need to take action to hold the guilty person responsible. So what can we do for those who have suffered this loss?

We cannot sue to restore the life. That judgment is beyond the jurisdiction of any earthly power.

We cannot sue to place the responsible person in jail. Only the state can seek criminal penalties against wrongdoers. In order to be held criminally responsible, the defendant must be found to have acted with the intent to injure (there are some exceptions for gross negligence), and this must be proven beyond a reasonable doubt. Most injury and death claims result from conduct that is not prosecuted in criminal court.

We cannot extract vengeance in the streets. If someone negligently causes the death of your loved one, and you turn around and intentionally cause the death of that person, you will be charged with murder. If people were allowed to impose their own “eye for an eye” justice, the result would be the type of chaos we see in other parts of the world. We entrust the criminal law to our government, and it should always be that way. In every instance in American history, when private citizens sought to address a wrong through the use of force (we call these people “vigilantes”), it has led to more lawlessness.

In our society, the only recourse available to private citizens is the civil court of law. If a person is threatening you with harm, you can seek a Restraining Order. If someone is doing something that harms you, you can seek an Injunction to stop it. Those remedies are intended to prevent or stop wrongful conduct.

However, if the negligence of another person has taken something from you, regardless of whether it has a direct monetary value (such as a car) or is a loved one whose value is beyond money, you can seek a judgment for money damages.

That’s it. That is the best and only remedy our legal system offers. It is imperfect, and it is insufficient. But, it is something a victim can do, and it is the only way society can measure the suffering of one person that is caused by another.

The same applies to physical pain and suffering, or disfigurement. When a person is injured, and as a result suffers physical pain, mental anguish, or a disfiguring scar, there is no lawsuit available to undo the harm. Even when someone can sue for his or her loss of income (which is not true for children, “stay at home” parents and the elderly), the greatest loss is often non-economic. How else do you compensate a person whose physical features have been marred by a terrible burn or a facial scar? What else can you give a person who lives with pain every day?

Losing a spouse, parent or child creates disrupts the fabric of the family. In addition to the economic burdens of funeral expenses and time lost from work, relationships among all family members are affected when a mother, father or child is taken away suddenly. The emotional pain is felt every day, usually for the rest of the lives of those left behind. When a spouse or child loses their source of financial support, suing for the economic loss only captures a part of what has truly been taken. Our legal system must provide some recourse for the emotional loss.

As lawyers, we ask juries to “convert” human suffering into monetary damages. When we try lawsuits, it becomes apparent to everyone involved that we are dealing with an imperfect remedy. But, we also understand that this is the only remedy a civil society offers those who have been harmed by the negligence of others. It may not be an ideal system, but it is the best legal system in the world. In addition to keeping people from extracting vengeance in the streets, it provides an avenue by which dangerous conduct can be exposed and discouraged. People behave more responsibly because of the risk of being sued. As irresponsible as people – including corporations that manufacture products – can be, our society is safer because the civil courts are there to hold people accountable for their irresponsible behavior. Even insurance companies are part of this equation. In order to attempt to reduce their losses, insurance companies have become more active in promoting safe conduct among drivers, businesses and others whom they cover.

Finally, I think the idea that recovering money damages for a wrongful death is somehow profiting from that death is wrong. There is no profit in compensation. Our legal system gives all of us access to the courts and a right to sue for damages when we have been injured or our loved ones have died due to the fault of others. The amount awarded to our clients by a jury of their peers is compensation, not profit. Pursuing what the law permits you to recover is no different than filing a claim on a life insurance policy. In both circumstances, you are collecting what is rightfully yours under the law.

For those who are troubled by keeping the proceeds of a damage recovery, there are alternatives to allowing the wrongdoer to escape responsibility. Many of our clients have used the proceeds of a wrongful death claim to benefit others in their family, such as paying for grandchildren, nieces and nephews to go to college. We have had others donate part of their recovery to charitable causes in memory of their deceased loved one. There is no shame in keeping the proceeds, but for those who seek alternatives, there are many options, none of which involve allowing the wrongdoer to escape responsibility.

I hope my young friend takes the time to read this lengthy response to a short question. The answer is not simple because the question is not simple. The question goes to the very heart of our civil justice system. I have spent my career providing these answers to people in real life. They have all understood the need to do something when a wrong has struck their families. I hope this explanation provides insight for those who have had the good fortune to avoid this terrible situation.

Steve Waldman