Houston Personal Injury Attorneys – Smith & Hassler

Last week the Texas Supreme Court issued an opinion in the case Aaron Glenn Haygood v Margarita Garza De Escabedo that will have a profound effect on many personal injury lawsuits in Texas.  The opinion is available online here. Before we discuss the Escabedo opinion, here is a little background to set the stage…

In 2003 the Texas legislature, as part of a sweeping round of tort reform, enacted a new statute: section 41.0105 of the Texas Civil Practice & Remedies Code. The statute reads as follows: “In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.” Since taking effect September 1, 2003 that one sentence long statute has caused all manner of confusion in the area of personal injury litigation in Texas.

The way the statute came to be interpreted by the majority of Texas courts was that in a personal injury lawsuit where the injured person’s medical bills were paid (in whole or in part) by health insurance, the defendant who caused the plaintiff’s injury was only required to pay the plaintiff the amount paid by health insurance, plus any co-pays and outstanding balance, and was NOT required to pay the plaintiff the amount the plaintiff was billed by her medical provider.  Here are two examples:

Scenario A, prior to CPRC Sec. 41.0105 being enacted: Dan Defendant rear-ends Paul Plaintiff at a red light. Paul goes to the hospital for treatment and the hospital bills Paul $1,000. Paul has private health insurance. The health insurance company pays the hospital $500. Paul has a co-pay of $100. The remaining $400 of Paul’s bill is written-off by the hospital as a discount to Paul’s health insurer, who has a pre-negotiated rate with the hospital. Dan owes Paul the $1,000 that the hospital billed Paul. If Paul has to repay his health insurer the $500 they paid on his behalf (as commonly happens), and Paul is reimbursed the $100 co-pay he paid, then there is a $400 upside. That upside goes to Paul.  Prior to CPRC 41.0105 the reasoning was, if an upside should go to anyone it should go to the injured plaintiff, rather than allowing the negligent defendant to benefit from the plaintiff’s private health insurance.

Scenario B, after CPRC Sec. 41.0105 was enacted: Dan Defendant rear-ends Paul Plaintiff at a red light. Paul goes to the hospital for treatment and the hospital bills Paul $1,000. Paul has private health insurance. The health insurance company pays the hospital $500. Paul has a co-pay of $100. The remaining $400 of Paul’s bill is written-off by the hospital as a discount to Paul’s health insurer, who has a pre-negotiated rate with the hospital. Dan owes Paul $600: the $500 paid by Paul’s health insurance company plus Paul’s $100 co-pay. After CPRC 41.0105 was enacted the ultimate effect of the statute was to allow a defendant to benefit financially from having the good fortune to hit a Plaintiff who had private health insurance.

So….CPRC 41.0105 (often referred to as “paid versus incurred”) limited the amount of money a plaintiff could recover for past medical bills when the plaintiff’s health insurance paid their bills. But: did the statute limit what evidence of medical bills the plaintiff could present to the jury? Could the plaintiff present the jury evidence of the full amount the hospital billed, or could the plaintiff only present the jury with the amount paid by health insurance, plus co-pays and balances owed? Prior to the Texas Supreme Court issuing the Escabedo decision last week, the answer was “We’re not sure.”  After the Escabedo decision, the answer is: a plaintiff may only present a jury with the amount paid by health insurance, plus co-pays, plus balances owed, and MAY NOT present the jury with evidence of the amount that was originally billed by the hospital (or other medical provider).

Prior to Escabedo what most civil trial judges in Texas did was to allow the plaintiff to present the jury with evidence of the full amount billed by medical providers, and if the jury awarded the past medical bills in full, the defendant could make a motion with the court post-verdict to reduce the award of past medicals to the amount paid by health insurance, plus co-pays, plus balances owed. After Escabedo however, personal injury Plaintiffs must now redact their medical bills to remove evidence of the full amount charged by the medical provider, and also (presumably) remove evidence of any health insurance write-offs or discounts.

If you have followed along this far you may be thinking: so what? If all the plaintiff can recover is the amount paid by health insurance, plus co-pays, plus balances owed, what does it matter if that is all the jury hears evidence of?  Well it actually does matter, and here’s why.  Firstly Escabedo sets up a bizarre situation where two plaintiffs sitting next to one another in the back seat of a car rear-ended by a defendant get to put on significantly different evidence of past medical expenses at trial if one plaintiff has health insurance and the other does not. Here’s an example to illustrate:

Plaintiff Alpha is sitting in the right hand side rear seat of a car. Dan Defendant rear-ends the car. Plaintiff Alpha is taken to Memorial Hermann who bills Plaintiff Alpha $1,000 for their services.  Alpha has health insurance with Blue Cross Blue Shield.  BCBS pays Memorial Hermann $400. Alpha has a $150 co-pay. The remaining $450 is written off by Memorial Hermann as an HMO discount per Memorial’s agreement with BCBS. Alpha gets to present the jury with evidence of $550 of past medical bills at trial.

Plaintiff Bravo is sitting in the left hand side rear seat of the same car. Dan Defendant rear-ends the car. Plaintiff Bravo is taken to Memorial Hermann who bills Plaintiff Bravo $1,000 for their services; by coincidence Bravo gets the very same treatment and diagnostic tests Alpha gets.  Bravo has no private health insurance so his bill remains unpaid until the lawsuit over the car accident goes to trial. Alpha gets to present the jury with evidence of $1,000 of past medical bills.

Same accident, same hospital, same treatment, same original billed amount, same jury, same trial, but Alpha and Bravo get to present different evidence of damages for past medical expenses to the jury. When it comes to presenting evidence of past medical bills, the Escabedo decision creates two classes of Plaintiffs: those with health insurance and those without.

Here is another reason this matters: rightly or wrongly, juries are known to use the amount of a personal injury plaintiff’s medical expenses as an index or guide when trying to decide how much to award for “general damages.”  General damages include what are commonly referred to as “pain and suffering” damages, which would include physical pain, mental anguish, physical impairment and disfigurement.

Say a personal injury plaintiff sustained a severe back injury after being rear-ended by an overloaded 18-wheeler and had to have a lumbar fusion procedure. Factoring in the cost of hospital admission, anesthesia, hardware and surgeon’s fees, a major procedure such as a lumbar fusion can routinely cost in excess of $100,000.  However, due to pre-negotiated rates health insurers have with hospitals, surgeons, anesthesiologists and other medical providers, the amount ultimately paid for a $100,000 back surgery, factoring in patient co-pays and the amount paid by health insurance, may be closer to $30,000.

If a jury is presented with $100,000 or more in past medical bills for a plaintiff who had a major back surgery and whose spine will never, ever be the same again, and who cannot pursue the hobbies or family activities he or she once enjoyed pain-free, it is a less daunting task to ask that jury to award $100,000 for pain and suffering than if the jury heard evidence of $30,000 in past medical bills.

If the jury heard evidence of the $100,000 the plaintiff was billed by his doctors for the back surgery (as the jury would have pre-Escabedo) an award of $100,000 for pain and suffering would be an award that was the same amount as the past medical bills. If on the other hand the jury heard evidence of $30,000 in past medical bills (as the jury will after Escabedo) an award of $100,000 for pain and suffering would be more than three times the amount of past medical bills (at least, that’s how it would appear to the jury).

Escabedo was a 7-2 decision by the Texas Supreme Court.  The opinion was written by Justice Nathan Hecht and upends long-standing Texas jurisprudence that a negligent defendant who injures a plaintiff should not benefit from that plaintiff’s private health insurance.  Escabedo is a big win for liability insurance companies in Texas and it will undoubtedly save them millions of dollars annually that would otherwise have gone to injured Texans and their families.

So if a drunk driver slams into you and your family late one night in Houston and you’re rushed to the hospital, go ahead and turn over your health insurance card as soon as you get to the emergency room. Just think about all the money you can save the drunk driver or his insurance company, not just on past medical bills, but also on your pain and suffering damages at trial when the jury is presented with evidence of a fraction of the amount the hospital charged to treat you and your family.

A two car crash over the 4th of July weekend has tragically claimed the lives of Houston area parents Josh Berry (41) and Robin Berry (40) and has left their three children Peter, Aaron and Willa in a Lubbock Hospital. Josh and Robin died in the Saturday July 2nd collision as the family drove back home from Colorado. A Toyota sedan carrying two people veered into the opposite lane of Highway 285 in Fort Stockton and collided with the Berry family’s 2003 Chrysler minivan. 28-year old Colleen Doyle of Phoenix Arizona, a passenger in the Toyota car, also died in the accident. Michael Scott Doyle (also from Phoenix) the 31-year old driver of the Toyota, is in hospital in serious condition. 9-year old Peter Berry and 8-year old Aaron Berry were in critical but stable condition at Covenant Hospital in Lubbock, while their 6-year old sister Willa Berry was conscious on Monday afternoon but remained in serious condition.  KHOU’s story indicates 8-year old Aaron underwent abdominal surgery on July 2nd to repair lacerations to his internal organs and on Sunday doctor performed a spinal surgery, installing hardware to stabilize his spine. 9-year old Peter also underwent a spinal surgery. A family friend named Jennifer Deutsch was quoted as saying it is unknown is the boys will regain use of their legs, and they will require significant rehabilitative therapy when they return to Houston. A fund has been established to help Peter, Aaron and Willa.  The fund is called the Perlo-Berry Family Fund and donations can be made online through the Congregation Beth Yeshurun web site here.

Our hearts go out to Aaron, Peter and Willa and their extended family. It is a tragedy for a child to lose a parent at any age, but for these children to lose both parents at once while they are so young is devastating. God bless them.

Update: On Thursday July 7th KHOU and other local media outlets reported that the Berry children have been returned to the Houston area and are in a hospital in the Houston Medical Center. The funeral service for Josh and Robin Berry was held at Beth Yeshurun synagogue in Houston on Wednesday July 6th, was attended by approximately 1,000 mourners and lasted for three hours. The Perlo-Berry Family Fund remains open and is accepting donations: you can donate as little as $10. Everything will help.

Channel 13 Eyewitness news is reporting a major collision between two 18-wheelers on Interstate 10 eastbound in Sealy, Texas. There is no word on whether anyone was injured, and the entire eastbound side of I-10 has been closed. At least one of the 18-wheeler appears to have burned up.

Police are working to determine what caused a serious head-on crash last night on FM 1960 and Oak Timbers.  Three people were injured in the car accident and it is through that alcohol may have contributed to the wreck. According to deputies the female driver of a Pontiac Grand Am was swerving when she drifted across the center line and struck an oncoming car (which based on the photograph was a Chrysler PT Cruiser or a Chevrolet HHR). Both drivers involved were transported to the hospital and reportedly were in stable condition, but a passenger in the Pontiac Grand Am is in serious condition. The driver of the Pontiac was to be tested for possible alcohol consumption. ABC Channel 13’s coverage is here.

If you or a loved on have been victimized by an automobile accident, motorcycle accident, pedestrian accident, bicycle accident or truck accident caused by a drunk driver, call the experienced Houston personal injury attorneys at Smith & Hassler for a free consultation. The earlier in your case you call, the better: the insurance company will want you to settle for a small amount as early as possible and have you sign a release. This will limit the insurance company’s liability and prevent them from having to pay more later. Smith & Hassler’s personal injury attorneys have aggressively represented injured people in the Houston area and throughout Texas for more than 20-years, including bereaved family members bringing wrongful death lawsuits.

Click2Houston.com is reporting a fatal collision on State Highway 6 near Lake Shore Boulevard between a car and a backhoe carrying a load of rebar in an area that was under construction. Missouri City Police indicate the wreck happened around 8:15am Tuesday June 28th. Both vehicles were traveling in the same direction at the time of the wreck and investigators are working to determine which driver had which lane. Under consideration is whether the rebar load extended too far from the backhoe or if the driver changed lanes too quickly. The driver of the car died at the scene. The construction company operating the backhoe was not identified in the article. Typically when an accident involves a fatality and there is a question as to how the accident happened and who is responsible, the law enforcement agency investigating will conduct a full-blown accident investigation, probably performed by a specially trained accident reconstructionist.

Several Houston media outlets are reporting a deadly crash in the 13700 block of South Main in Houston near Hillcroft at around 12:10am Wednesday June 29th. The names of the two drivers involved have not been released: after the wreck they were both rushed to Memorial Hermann Hospital where one driver, a man, was pronounced dead. The surviving driver apparently sustained a head injury, but fortunately he was conscious and talking at the accident scene and is expected to survive the crash. Houston Police Department said the driver of a Suzuki SUV made an illegal u-turn by driving over a grass median to turn from the northbound lanes to the southbound lanes on Main. A Ford Explorer traveling southbound collided with the Suzuki as it entered the southbound lanes. The driver of the Suzuki was killed.

The Houston Chronicle’s report is here. ABC Channel 13 News describes the Suzuki SUV as a minivan and does not mention an illegal u-turn, but says the minivan veered into oncoming lanes.

45-year old James John Onak has been charged with felony failure to stop and render aid and also driving while intoxicated in connection with a pedestrian accident Tuesday morning. Onak’s black-colored Mazda 626 car struck pedestrian Fadel Steadman, age 32, severing Fadel’s leg and propelling him through the windshield of the Mazda and into the passenger seat. Rather than stop however Onak drove another 3 miles, stopping when he was pulled over by Deputy Constable Paul Armand because Onak did not have his headlights on. It is believe Fidel had pulled his Ford Explorer over onto the shoulder lane when he experienced car trouble. Onak purportedly told the deputy Constable that he thought he hit something on the freeway but was unaware of the body in his front seat.

This accident is reminiscent of an October 26, 2001 crash in Fort Worth when Chante Mallard struck a 37-year old homeless man with her car, lodging him in the windshield: Mallard drove her car home and parked it in the garage, the homeless man died two days later.

If you or your family have been injured by a drunk driver, call Smith & Hassler for a free initial consultation (either in-person or by phone) with a personal injury attorney. All of the litigators at Smith & Hassler have experience handling both claims and lawsuits against intoxicated drivers. Smith & Hassler aggressively pursues compensation for clients injured by the selfishness of drunk drivers. Insurance companies want to settle claims involving drunk drivers EARLY and FOR AS LITTLE AS POSSIBLE. The insurance company knows Harris County juries have little sympathy for intoxicated drivers who hurt others and damage their property. Don’t let an insurance adjuster talk you into giving away your legal rights.

The southbound lanes of Houston’s Gulf Freeway (I-45) were shut down for a few hours this morning after a deadly collision involving a car and a pedestrian. The pedestrian was hit on the freeway at around 1:00am, but the car that hit him was found a couple of miles away from where the collision occurred with the pedestrian‘s body in the car that hit him. Witnesses saw the male car driver strike the pedestrian. The pedestrian was wearing a fast food uniform of some sort and was apparently walking on the shoulder of the freeway after his car broke down. The collision was apparently very severe and the pedestrian was almost certainly killed instantly: his leg was severed in the initial impact and the leg was found at the scene of the original collision. The car kept going and ended up at Beamer near Kirkvalley. A Precinct 8 Constable pulled over the driver and arrested him: part of the pedestrian’s body was still in the windshield of the car. ABC Channel 13 story here. The Houston Chronicle’s story is here, and according to the Chronicle’s report the pedestrian was trying to cross the freeway at the time of the collision. KHOU’s story is here, and states the pedestrian victim was walking along the shoulder, not crossing the freeway.

A Brazoria County Deputy Sheriff was killed and another deputy riding with him was seriously injured in a collision on Highway 6 at FM1128 in Manvel, Texas at around 10:30pm Sunday June 26th. The two deputies were traveling in their patrol car on Highway 6 when a pickup truck made a left turn in front of them into a Chevron gas station. Apparently the pickup truck driver did not see the deputies’ vehicle.  The patrol car t-boned the pickup truck, killing one of the deputies. The two people in the pickup truck were injured and were life-flighted to Memorial Hermann along with the injured deputy. A Texas DPS trooper stated the pickup truck appears to be at fault based on their preliminary investigation for failure to yield the right-of-way to the deputies patrol car. The deputy who died in the collision was riding in the front passenger seat of the patrol car. Channel 13 Eyewitness News’ story is here. The Chronicle’s story is here.  The Chronicle’s story identifies the deceased Deputy as 27-year old Charles Allen Vanmeter, and the injured Deputy as 26-year old Joshua Mark Waldrop. The same story also lists the driver of the pickup truck as being 18-years old and the passenger as 17-years old.

A pedestrian is dead after a hit-and-run collision in Houston near the intersection of Westheimer and Fountainview. The male pedestrian was trying to walk across Westheimer at around 1:20AM when he was hit by a pickup truck. The victim died at the scene and the pickup driver fled. According to investigators, if the driver had remained at the scene he/she would not have faced charges because it appears the pedestrian was jaywalking. Police are looking for the driver of the pickup. Channel 13 Eyewitness News’ story is here.