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And Now, Speaking on Behalf of Big Insurance: The Texas Supreme Court

Medical Insurance, Personal Injury, Texas , , , , ,

Earlier this month, the Texas Supreme Court once again cast its arms around Big Business and shoved Texans out the door.

Not so long ago, if you were the victim of an accident wherein medical bills were incurred you could present the total amount of his bills to a jury even if your insurance had paid the majority of those bills. This was fair. After all, one of the elements of damages that you are entitled to is pain and suffering. One way to convey how much pain you suffered is to show the amount of bills you had to pay to not have that pain anymore.

But that has changed. The Texas Supreme Court has ruled that the only bills you can present to a jury are the ones you still owe.

Let me give you an example: Let’™s say that you are the victim of an accident wherein your medical bills are $100,000.00. Let’s further say that you were responsible enough to have medical insurance (which, by the way, you paid dearly for because medical insurance is not cheap). In our example, your insurance paid $90,000.00 of your bill and has a lien to get reimbursed of $10,000.00.

The Texas Supreme Court has ruled that the only amount you can present to the jury is $20,000.00 (the $10,000.00 left over from the original bill plus the $10,000.00 insurance lien). Will $20,000.00 give the jury an accurate picture of how injured you really were? No. So, whatever pain and suffering you would have received is now likely reduced by a large amount.

But let’s take this a step further. Under this new law, the person who hit you and caused the accident, caused you to incur medical bills, caused you to lose time from work, and caused you the pain and suffering now benefits from YOUR insurance.

Yep, the person who slammed into you AND his insurance company get the benefit of all those premiums that YOU paid. The bills HE caused are reduced by the insurance YOU paid for.

It is as if you are being punished for being responsible enough to carry insurance.

And here is a head scratcher: On one hand, we have Federal Government trying to force everyone to buy insurance while the Texas Supreme Court says, yes, but you better never use it in car accidents!.

Excuse me, Texas Supreme Court, but your bias is showing. Again.

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THE US SUPREME COURT IS “MENSING” WITH YOUR LEGAL RIGHTS

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The US Supreme Court correctly held in its 2010 decision in Wyeth v Levine that state tort laws do not conflict with federal law and can be used to hold the pharmaceutical manufacturers accountable for the serious injuries and damages caused by their dangerous drugs. The legalese for the legal issue made the basis of that decision is preemption: Are claims brought on state tort laws inconsistent with and therefore preempted by federal law. The Court recognized that the FDA could not possibly shoulder all of the responsibility for determining the safety of a prescription drug during the new drug approval process. It further recognized that tort laws were not inconsistent with the federal laws and regulations that the FDA operates under, and those laws play a very important role in determining the safety and effectiveness of dangerous drugs that the FDA approves. After all, the only information the FDA has to make that decision comes from the drug’s manufacturer. No comfort level, there.

In June, 2011, the same US Supreme Court in Pliva Inc. v. Mensing held just the opposite for the manufacturers of the generic forms of these dangerous drugs. The Court found that state tort claims are inconsistent with and are preempted by federal law and are not permitted. This ruling is significant for a number of reasons. First, the company that develops and obtains FDA approval to market a drug (called the innovator) maintains that exclusive right for a ten year period. That ten year period can be extended under certain circumstances. After that ten year period and/or any extended periods run, the exclusivity is lost. Other drug companies can manufacturer and market the innovator’s exact same drug under its own name. These identical drugs are called generics. Second, the generic manufacturers do not have the same duties that the innovator has in the new drug approval process to test generics for safety and effectiveness and for full, complete and accurate disclosure of all know risks of serious side effects associated with that drug; this is the sole responsibility of the innovator. Third, if the innovator’s label for the drug is inadequate and incomplete, the generics’ label will be inadequate and incomplete. Fourth, if your physician prescribes a generic form of a drug, or worse yet if your insurance company will only approve and pay for a prescription filled with the generic form, and you suffer a serious injuries and damages from that drug, you will not be able to file suit to seek compensation against the generic manufacturer.

Since the innovator obtained FDA approval and is responsible for the drug label’s full, complete and accurate disclosure of all know risks of serious side effects, it appears that the patient may be able to bring suit against the innovator even though the patient ingested the generic and not the original form of the dangerous drug. The pharmacy, pharmacist, insurance company, and physicians are also left exposed by this ruling for their part in the patient’s injuries and damages. Prior to the Mensing decision, Bailey & Galyen did not included pharmacies, pharmacists, insurance companies, and physicians in cases filed against the drug companies for serious injuries and damages. The Supreme Court’™s decision now forces us to include them in the lawsuit.

While the ruling is consistent with Levine, its disservice is that it leaves the generic manufacturers untouched and unaccountable for serious injuries caused by their dangerous drugs. It puts the consumer between the proverbial rock and a hard place, with the fox guarding the hen house.

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The Trial

Auto Accidents, Personal Injury, Texas , , , , , , , , , , ,


Although most accident cases settle before trial, there are a few that actually get to a jury. Knowing this, every case in pre-litigation is handled with litigation in mind so as to have a file prepared to go to litigation if the need arises.

So, we need in pre-litigation to have the same proof mindset that we have in litigation.

In a trial, we need to prove two things, and then we need to prove a connector.

First, we need to prove that the accident or incident was the defendant’s fault. We must prove that the defendant is the only person who is responsible for the accident. This is called liability. We must prove the defendant is liable.

Second, we must prove damages. We must prove there were authentic medical bills, lost wages, pain, suffering or any other damages that apply.

Then we must prove the connector. We must prove that it was the accident that caused the damages. The defense may claim that the injuries you suffered came from an earlier accident or incident. We have to prove that the accident, and only the accident, caused the damages we are claiming.

Knowing these elements, we in pre-litigation prepare our cases to prove the exact same elements to the insurance companies with whom we are negotiating. The insurance companies must know that if they refuse to settle with us, we already have the proof we need to be successful in trial.

And that is what makes us always prepared to represent each and every client we have at Bailey & Galyen.

¿Acaso la Raza o de género juegan un papel en la discapacidad?

Seguro Social por Incapacidad , , , , ,

por Jennifer Scherf

Muchas personas creen que la raza y / o de género juegan un papel en las determinaciones de discapacidad. Esto es absolutamente falso. La edad es un factor, pero la religión o el color de su piel no es considerado por la Administración del Seguro Social (SSA) para determinar la discapacidad.

Los tomadores de decisiones: los controladores de las reclamaciones, los examinadores de la discapacidad, los médicos la revisión y jueces de derecho administrativo son todas las razas, religiones y géneros propios, por lo que consideran que estos factores estuvieron implicados sería un error.

¿Qué se considera?

Sus deficiencias:

Impedimentos físicos y mentales se consideran. También lo son otras cosas como la obesidad, el dolor, la fatiga y el alcohol o cualquier adicción a las drogas. Ambas condiciones graves y no graves, deben ser considerados en la evaluación de su capacidad general para mantener el empleo.

Su edad:

SSA reconoce que las personas mayores de 55 años de edad que tienen más dificultad para ser contratado en un empleo de nivel profesional o hacer ajustes.

Su educación y experiencia de trabajo:

¿Sabe leer y escribir en Inglés? ¿Puede contar con el cambio o el balance de su talonario de cheques?
¿Qué tipo de trabajo ha realizado en los pasados ​​15 años? ¿Qué tipo de habilidades se enteró de que podía transferir a menos exigentes de trabajo?

Su situación financiera (a veces):

Seguridad de Ingreso Suplementario (SSI) es basada en la necesidad, por lo que los ingresos y los activos se consideran.
Seguro Social por Incapacidad (SSDI) no está basada en la necesidad, y lo puede conseguir con millones en el banco o nada a su nombre. Los jueces tienden a mirar a la historia del trabajo (buen empleado, empleo a largo plazo) y ganancias (se que una fuente de ingresos altos salarios) como un factor para determinar la discapacidad. El razonamiento es que los altos asalariados y las personas que estaban con una compañía durante mucho tiempo son menos propensos a dejar de trabajar a menos que realmente no pueden continuar. Las personas que saltaron de trabajo de baja remuneración a empleos de baja remuneración sin tener una carrera de verdad no están tomando tan grande la pérdida financiera mediante la aplicación del seguro de discapacidad.

* La información adicional se puede encontrar en línea en www.socialsecurityjustice.com.

The New Battlefront

Personal Injury , , ,


At Bailey and Galyen, we are keenly aware of how the legal landscape changes. Through the years, we have always stayed one step ahead of those changes, and we have adapted to meet the challenges as they arise to better serve our clients.

Recently, several of the major insurance companies have declared war on YOU, the injured victim. All of these companies with their cute television ads and promises to be there for you actually don’t care about you at all.

The new tactic these companies use is to seriously undercut what you deserve for your accident, especially when your medical bills are less than $6,000. They hope that if they offer you thousands less than what your case is worth, you will drop your case. They also hope that your attorney will choose not to pursue further legal action in those cases. Their goal is to chase you, the victim, away and force law firms out of business.

But at Bailey and Galyen, we do not run. We fight.

Bailey and Galyen has always had a litigation department. And Bailey and Galyen’™s litigation department will continue to be the finest litigation department in the state.

But to combat the new insurance company tactic, Bailey and Galyen now, in addition to its litigation department, will have a small claims department. This department will fight the litigation battles for those cases in which the medical bills are $6,000 and under. Where other firms might withdraw from those cases, B&G simply sees this as another way to fight for YOU.

And that is what Bailey and Galyen is all about.

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