New Tires can be Old and Dangerous

We all know that car passenger tires need to be changed from time to time, either due to deterioration from normal wear and tear or due to some unpreventable damage from a nail or other hazard in the road.

What consumers may not know is that even before your tires show wear or damage they may already be dangerous or defective due to their age. Moreover, when you replace your tires, your new tires may be old and defective even though they haven't traveled a mile on the road. The tire industry has readily acknowledged that the older the tire the more likely it is to fail and cause serious injuries.  Accordingly it is important to protect yourself and your loved ones by researching the age of the tires that are currently on your car and those that are to be installed. 

Finding out the age of your tire is fairly simple, each tire is stamped with a Department of Transportation (DOT) number.  Tires made after the year 2000 have a four digit code that conveys this information- the first two numbers will read from 01-52 which represents the week of the year they were manufactured; the last two numbers will, for example, read 05 which means it was manufactured in the year 2005.  So a DOT number of 2005 means the tire was made in the 20th week of 2005. 

You can read about how dangerous old tires are here, and find out more information about how to read the information on your tires here. 

If you or a loved one has been hurt in a car crash you should promptly investigate whether the reason behind the crash is a defective tire.  The personal injury trial attorneys of Tekell & Atkins, L.L.P. will assist you in this investigation free of charge.    

Insurance Companies Hurting Doctors and Patients

A recent 5th Circuit opinion  exposed what is an all too familiar problem for doctors and their patients: health insurance companies refusing to pay for treatment after expressly authorizing the treatment.

According to the 5th Circuit, this scenario "is reenacted each day across the country" and usually unfolds as follows:

• A patient visits their doctor to receive treatment for a medical condition.  
• The doctor diagnoses the condition and recommends a medical treatment plan. 
• For some patients the medical treatment plan may require additional treatments, surgery, and medical devices (implants, prosthetic, other equipment.)
• The doctor then contacts the patient's insurance company to see if the requested treatment is covered under the patient's health insurance policy.
• If the patient's health insurance policy confirms that the treatment or device is covered the doctor then proceeds with the treatment.
• The doctor then sends a bill to the patient's health insurance for the services or treatment provided, but the insurance company refuses to pay what it had previously agreed was covered.
• The doctor then may seek reimbursement from the patient who is unlikely to be able to pay for this unplanned financial burden, which can uncomfortably transform the patient/doctor relationship into the debtor/creditor relationship.  

The good news for doctors and patients is that the 5th Circuit has now decided that even health insurance companies that issue group policies, or ERISA policies, which are normally regulated by a more lax federal law, can now be held liable under more stringent Texas Insurance and Consumer laws.

Therefore if you are a Texas doctor or Texas patient whose health insurance has authorized medical treatment only to deny coverage after you received treatment, you may have a claim against the health insurance company who is now denying coverage.   

Texting While Driving Doubles Reaction Time

A recent study by Texas A&M University's Texas Transportation Institute found that texting, or emailing, while driving doubles reaction time and makes drivers more likely to miss a flashing light.


The study was composed of 42 drivers between the ages of 16 and 54 who drove on an 11-mile (17 km) closed test course while sending or receiving text messages, and again while focusing completely on the road.

In the interest of safety for both participants and the research staff, researchers minimized the complexity of the driving task, using a straight-line course that contained no hills, traffic or potential conflicts other than the construction zone barrels. Consequently, the driving demands that participants encountered were considerably lower than those they would encounter under real-world conditions.

The researchers then asked the drivers to stop when they saw a flashing yellow light and recorded their reaction time.  The typical reaction time without texting was between one and two seconds, but while texting it increased to three to four seconds, regardless of whether the driver was typing or reading a text.

The researchers also found that a texting driver was 11 times more likely to miss the flashing light.

The fact that the study was conducted in an actual driving environment is important. According to research manager Christine Yager most research on texting and driving has been limited to driving simulators, whereas this study involved participants driving an actual vehicle. While the researchers believed their results are more significant since the study was in an actual driving environment they wrote that, "it's frightening to think of how much more poorly our participants may have performed if the driving conditions were more consistent with routine driving."

Perhaps this research will reach some of Texas A&M's more influential elected alums.

Perry Vetoes Texting while Driving Ban

Although several cities in Texas, including Austin, already have a city-wide ban on texting Gov. Perry declared in his veto statement to HB 242 that a state-wide ban on texting while driving would be, " a government effort to micromanage the behavior of adults," and that the current Texas law prohibiting teenage drivers from texting while driving is sufficient. Gov. Perry also stated that, "the keys to dissuading drivers of all ages from texting while driving are information and education."

Gov. Perry did not draw a distinction between texting while driving and other harmful driving behaviors that the State has deemed worthy of curbing by both education and civil/criminal penalties, e.g. Click It or Ticket campaign and the Faces of Drunk Driving campaign.  In light of this veto, it is interesting to note that research has shown that talking on a cell phone impairs a driver's reaction time as much, if not more than, drunk driving.

The Texas Department of Transportation currently promotes a public awareness campaign called, "Talk. Text. Crash" which refers to distracted driving as a "deadly trend...in Texas, where nearly one in four crashes involves driver distraction."  Apparently Gov. Perry believes that the best way to curb this deadly trend that kills hundreds of Texans every year does not include any civil or criminal penalties.  If you desire to express your opinion either in support of the Governor or in opposition you may contact the Governor here; the text of the vetoed bill can be found here.

Bounce House Hazards; Special Alert to Parents

A 2009 memo from the Consumer Product Safety Commission ("CPSC") estimated that there were over 31,000 emergency department treated injuries associated with inflatable bounce houses in between 2003 and 2007 in the U.S.- that's over 17 trips to the emergency room a day.

The CPSC's memo also revealed that during that same period there were four reported deaths, most of which involved someone falling off or out of the inflatable and then hitting their head on the hard pavement nearby.

Now as summer vacations get underway parents will undoubtedly be hosting or taking their children to birthday parties or gatherings with inflatable bounce houses.  While these bounce houses look soft, safe, and fun for children of almost any age the CPSC's data tell a different story, and  a recent article in the Washington Post revealed several shocking stories of how improperly staked bounce houses have been blown across city streets, swept away by wind gusts, or toppled by excessive weight.

Before letting your child enter a bounce house or other inflatable jumping device make sure to check that:

1. The inflatable is properly secured and staked; 
2. The inflatable is not over crowded with children;
3. The inflatable is not tattered, worn or patched; 
4. Your child is never unattended and someone is always watching the inflatable; and
5. The air flow from the motor to the inflatable is not obstructed. 

Distracted Driving: A Test

Studies have shown that we're bad multi-taskers. The same research has also shown that we think we're good multi-taskers.  Unfortunately, when our confidence to multi-task translates into getting behind a car wheel and picking up a cell phone we become dangerous multi-taskers. This is because when we drive and talk on our cell-phones a variety of manual, visual, and more importantly, cognitive distractions impair our ability to do either task well.

Take this test to see how well you pay attention in a distracting environment.  

Tornadoes and Severe Weather Damage Waco area

According to local news reports golf-ball sized hail, torrential rains, strong winds, and tornadoes pounded Waco, Texas and surrounding areas including Lacy Lakeview, Mart, and China Spring on Tuesday evening.

Here is a link to a Tornado Safety Guide published by the National Weather Service which includes a discussion on how to recognize the signs of a tornado before it's too late to react.

If you or a loved one have been affected by severe weather you may want to consider following these steps (most of which are adapted from the Tornado Safety Guide) which are essentially the same as those for persons involved in car crashes:

1. Safety First.  Always make sure you and your family are safe. If you are in a secure building remain inside in an interior room away from windows until you can confirm that it is safe to leave your shelter.   If you or a loved one is injured seek immediate medical attention. Watch for power lines -they may still be carrying high voltage, and be mindful for broken glass and debris on the ground. Do not use matches or lighters because they may spark natural gas that is in the air from ruptured lines.

2. Wait for Emergency Personnel to Arrive. In Waco or McLennan County you may find information about emergency services here.

3.  Document any Damage to Your Property.  If you are able you will want to start securing your personal property and your home to prevent further damage and documenting what property is damaged.

4. Contact Your Insurance.  As soon as you are able contact your insurance company.  During severe weather situations insurance companies often get over-whelmed with phone calls and claims which means that any delay in presenting your claim may delay any necessary repairs.  Unfortunately, some insurance companies do not always agree to cover all of the damage that is caused by severe weather.  Sometimes this is due to a limit or exclusion in the policy and sometimes it is due to an insurance company acting in bad faith.  If you have questions about how your insurance company is handling your claim you should consider contacting a trial attorney who specializes in consumer and insurance law.

Dog Attacks in Texas

According to the Center for Disease Control (CDC) 4.5 million Americans are bitten by dogs each year, with one in five bites requiring medical attention.  Out of those attacked every year, children between the ages of 5 and 9 are the most at risk.

The CDC recommends that parents teach their children the following basic safety tips and review them regularly:

• Do not approach an unfamiliar dog
• Do not run from a dog or scream
• Remain motionless (e.g. "be still like a tree") when approached by an unfamiliar dog
• If knocked over by a dog, roll into a ball and lie still (e.g. "be still like a log").
• Do not play with a dog unless supervised by an adult
• Immediately report stray dogs or dogs displaying unusual behavior to an adult
• Avoid direct eye contact with a dog
• Do not disturb a dog that is sleeping, eating, or caring for puppies
• Do not pet a dog without allowing it to see and sniff you first
• If bitten, immediately report the bite to an adult

Unfortunately, even if you or your child takes every precaution around a dog there are some dog owners who fail to control their dogs and fail to warn others away from their dogs.  In Texas a dog owner can be charged with a third degree felony if their dog attacks someone and they had reason to know that the dog may attack. See Texas Health and Safety Code Sec. 822.005.

If you or a loved one has been attacked by a dog, you owe it to yourself and your community to report the attack to the authorities and to consider hiring a personal injury trial attorney to help you hold the dog owner responsible.

Tort Reform: Is it Constitutional?

The previous post regarding "tort reform" presented data from an empirical study which showed that the majority of elected judges in Texas, both Republican and Democrat, believe that tort reform is unnecessary. In this post, guest author and Houston Trial Attorney Steve Waldman weighs in on how the current tort reform bills could affect the Constitution and the Bill of Rights.

Constitution Demolition - Also Known as TortReform3   
By: Steve Waldman

When did the Bill of Rights lose all its amendments other than the Second and the Tenth?  All I hear the defenders of the Constitution actually defend are the right to bear arms and states' rights.  What happened to the right of trial by jury?  When did it get cast on the refuse pile?  Are the freedoms of speech and religion next?

Can you imagine the Two Commandments?  I am just as much against graven images and coveting as the next guy, but aren't the Ten Commandments a packaged deal?  Is the Bill of Rights any different?

What is being proposed in Austin right now is a total elimination of jury trials, particularly in cases where companies cause the most harm.   

Lawmakers are proposing a "Voluntary Compensation Plan," which allows companies to set up "Plans" 90 days after causing death or injury to two or more people.  BP can blow up half of Texas City and be immune from liability beyond whatever "Plan" it chose to adopt.  The statute has no requirements for what the plan covers and punishes you if you attempt to go outside the plan.  And, to make sure you are unable to find an attorney to help you, attorney's fees are capped at 5% of what you recover from a Plan.  Have you ever fought with a "Plan" over benefits?     

Also being proposed is a British-style "loser pays" law that will make a plaintiff who loses a lawsuit and his or her attorney liable to pay the winner's attorney's fees, litigation costs, travel expenses and expert witness fees.  This only applies to plaintiffs.  Defendants are never required to pay the plaintiff's costs.  If this passes, anyone who is injured due to the negligence of someone else will risk financial ruin if he or she files suit.

So what can you do?  You can get involved.  Write your state legislator and state senator and tell them you care about your constitutional rights, including the right to have your day in court.  Stand up for the Constitution!  

You can also get involved through Texas Watch, "a non-partisan citizen advocacy organization dedicated to ensuring that corporations and insurance companies are accountable to their customers."  Alex Winslow, the director of Texas Watch, is a corporate watchdog.  If you are upset that your rights have been taken from you, contact Texas Watch and check out their Take Action and Share Your Story links. 

If you have a story to tell, Texas Watch wants to hear it.  You can also email Texas Watch by clicking on this link.

Reprinted with permission.

   

Legislative Update: Kari's Law

In 2006 former pastor Matt Baker murdered his wife Kari in their Hewitt, McLennan County, Texas home and staged the scene to look like a suicide.  

The responding police officers and emergency personnel followed standard protocol when they arrived at the Baker house which dictated that, in McLennan County, a justice of the peace conduct an “inquest into the death of a person who dies if the person commits suicide or the circumstances of the death indicate that the death may have been caused by suicide.”  Texas Code of Crim. Pro. §49.04.  


Texas law at that time stated that an “inquest meant an investigation into the cause and circumstances of the death…, and a determination, made with or without a formal court hearing, as to whether the death was caused by an unlawful act.”  Texas Code of Crim. Pro §49.01.  Moreover, a justice of the peace could conduct the “inquest…at any other place determined to be reasonable by the justice.”  


In the Baker case, this meant that the presiding justice of the peace was able to investigate Kari Baker’s death and determine the cause via a late night phone call from the responding police officers without getting out of bed.  Finally, a justice of the peace had the sole discretion of whether to order an autopsy.  Texas Code of Crim. Pro §49.10. 
   
An autopsy was later performed in the Baker case, but only after a formal inquest hearing was granted and after Kari had been interred.  The results from the autopsy provided crucial evidence that helped prove that Kari had not committed suicide but had in fact been murdered by Matt Baker.  


If a full or partial autopsy would have been a mandatory requirement for apparent suicides, like it is in other states such as Oklahoma or Georgia, crucial evidence against Mr. Baker would have been better preserved.

                   

In the current legislative session Texas House Representative Charles "Doc" Anderson of McLennan County has introduced House Bill 3546, referred to as Kari's Law by its supporters, which would substantially change this very important area of Texas law such that autopsies become mandatory anytime a death is apparently caused by suicide.


With all of the other duties of a justice of the peace –performing marriages, issuing warrants, setting bail, conducting criminal and civil trials- it seems that determining death is one duty that should be void of discretion and ultimately up to a medical professional.   Accordingly, this Bill and its author are worthy of support.   

Legislative Update

Yesterday marked the halfway point of the 82nd legislature in Texas.  Now with only 69 days left there are a series of bills that are moving through the legislative process that will have a direct impact on the civil justice and criminal justice system in Texas.

If you are interested in the process of how a House or Senate Bill becomes a law in Texas, you can see a diagram of the legislative process here or you can read about it more here.

If you are interested in searching for specific bills, or searching for a bill by the text of the bill you can do so here.

Additional entries about specific bills will follow soon.