Articles Posted in Politics

9kThe Texas legislature ended its biennial session this week without harming the rights of injured Texans. They even helped them, which is a rarity lately. That’s music to the ears of an injury lawyer.

If you’re wondering what new laws will affect you as you drive and which will hopefully reduce the shocking number of car accidents we have, here’s a quick rundown:

This bill was passed by the legislature but has not been signed by Governor Abbott yet:

Texting while driving: 

Finally our state leaders voted to outlaw this dangerous and common practice that has sent our crash rates soaring. But there are loopholes, of course, and it is not guaranteed that our governor will sign the bill. If he does, the new law was weakened to the point that police officers will have an almost impossible job of enforcing it. But hopefully drivers will be afraid of receiving a ticket and will stop texting while driving, so it’s a start to making our highways safer.

Two bills signed by the governor become law on September 1st:

  1. Mediation of often enormous hospital bills will be expanded. Often after someone is discharged from an emergency room, he or she is billed in full or for the remaining balance due to complexities in the health insurance and medical systems. It is a big victory for Texas consumers whose unpaid bills are often turned over to aggressive collection agents and attorneys to file and collect on lawsuits. More info is here.

     2. Telemedicine will be permitted for the first time. It may not be necessary to drive to a doctor to have your pain-relieving medicines refilled or be referred to a specialist like an orthopedic surgeon.

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cell-phoneMore good news from our state legislature

Injured or sick people who can’t get off work, away from taking care of children, or don’t have a way to go get to a doctor will be able to see one on their cell phones or computers.
The new law will be signed by the governor in the next week. More information on how this cutting-edge technology will work is here.
Companies headquartered in Texas, including Teladoc, have been fighting the Texas Medical Board for many years to allow us the freedom to have our prescriptions refilled without lengthy trips and waits in doctors offices. Teladoc had won several lawsuits against the board.
Senate Bill 1107 was written by Dr. Charles Schwertner and will allow the board to maintain disciplinary control over doctors and health care providers.Doctors will be required to review a patient’s medical records before talking to them remotely.
Texas is state 50 out of 50 to allow this long overdue practice. This follows on the heels of the legislature’s approval of the texting while driving law, where we were the 46th state to limit this dangerous practice.

How Does This Affect People Hurt In Car Collisions?

Fortunately, most people injured in car wrecks do not sustain major injuries. The majority experience soft tissue injuries or strains and sprains of their necks and backs, sometimes referred to as whiplash. This is especially true in low speed collisions and rear end accidents or when the passengers are in a truck or sports utility vehicle (which more than 50% of Texans are in).

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Agency Missed Obvious Clues of Safety Violations

The National Highway Traffic Safety Administration (NHTSA) is responsible for regulating safety in the car industry and on our roadways. But the federal government agency has repeatedly failed to do its job, according to a scathing internal audit released by the U. S. Transportation Department. The report found that the agency’s shortcomings “deter[ed] N.H.T.S.A. from successfully meeting the mandate to help prevent crashes and their attendant costs, both human and financial.”

Systemic Failings at NHTSA

The 42-page audit criticized NHTSA for not adequately screening consumer complaints and verifying automakers’ safety claims. The audit also highlights the failings in NHTSA’s processes, including not following statistical practices in its assessments of consumer complaints and auto manufacturer reports. In addition, NHTSA’s staff was undertrained and it’s management weak. When NHTSA suspected an auto manufacturer of violating the law, the agency still took no enforcement action. 

The report said NHTSA conducted its safety duties on an “honor system.” In a classic fox minding the henhouse scenario, the automakers underreported deaths and injuries and mischaracterized safety incidents in the light most favorable to the corporations. NHTSA took the corporations at their word.

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Creative Defense or Delay Tactic in Cow /Car Collision?

In a quirky case currently before the Texas courts, a doctor has filed a motion to dismiss based upon medical malpractice laws. What is so odd about that? This case involves a car accident and has nothing to do with medical treatment.

The plaintiff, Bobby Tunell, filed a lawsuit against Dr. Richard K. Archer, claiming the 82 year-old retired doctor’s cow became loose and wandered into the highway, which resulted in a collision between Mr. Tunell and the cow. Dr. Archer’s lawyer has filed a very typical motion to dismiss — for a medical malpractice claim, that is. He claims that the case should be dismissed based upon the plaintiff’s failure to first file an expert report about the doctor’s duty of care.

Expert Report Requirement

Chapter 74 of the Texas Civil Practice & Remedies Code requires a patient to submit an expert report before she or he can file a medical malpractice lawsuit against a doctor. To comply with the Texas statute, the expert report must demonstrate the standard of care the doctor was expected to provide to the patient. This statute arose from tort reform laws passed by Texas lawmakers with the intention of protecting medical professionals from frivolous lawsuits. Clearly, the legislature meant for the law to apply to medical malpractice claims, not to any possible civil case against a medical professional.

However, in its 2012 decision in Texas West Oaks Hospital v. Williams, the Texas Supreme Court interpreted the rule as applying to cases in which the plaintiff’s claim was not directly related to his medical care. Dr. Archer’s attorney says the Texas West Oaks Hospital v. Williams ruling is “ridiculous,” but that he has a duty to his client to pursue dismissal based upon that ruling.

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Getting Drunk Teen Drivers Off the Road Would Save Hundreds Of Lives In Texas Each Year

On June 15, 2013, Tarrant County teen Ethan Couch caused a horrific automobile collision that killed four people and critically injured another teen. The car crash made national news because of the unusual defense used at trial that Ethan suffered from “affluenza” — a made-up condition in which financial privilege hinders a person’s ability to understand the consequences of acting recklessly — and the probated sentence Ethan received on his intoxication manslaughter conviction. More details are here.

I represented Sergio in a lawsuit to hold Ethan and his parents accountable for the injuries Ethan caused by his reckless conduct. Although we successfully obtained a substantial settlement, no amount of money could ever repair the damage or repay the losses Sergio and his family have suffered. I wish instead that we could rewind the clock and the crash would never have happened in the first place. I know that this is not possible. But preventing another tragedy like this is possible through enhanced laws.

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Texas Watch Advocates for Safety Laws 

Texas Watch released its Safe Texas agenda for the 84th Legislative session. The non-partisan citizen advocacy organization lobbies for passage of important safety laws. In this upcoming session, Texas Watch plans to advocate for laws that:

  1. Prohibit junk “named driver” auto insurance policies;
  2. Ban texting while driving; 
  3. Adopt strong chemical safety reforms; 
  4. Strengthen nursing home enforcement and accountability; and
  5. Require ride-share drivers to be covered under commercial liability insurance policies

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Ridesharing Driver
Worldwide Questions Have Local Impact

Ever used Uber and wondered if the driver was covered by liability insurance? I did yesterday in Dallas (as I needed a ride to and from the Dallas Marathon which I was running) and the drivers admitted that they were not covered. Luckily, we were not involved in any collisions.

Finally Uber and other pseudo-cab companies are catching flak from governments across the globe. Just this week, Spain, Thailand, the Netherlands and the Delhi region of India suspended its services. Earlier in the year, the cities of Brussels, Rio de Janeiro and Seoul banned the company from operating and Germany issued a countrywide moratorium. U.S. municipalities and state governments are also taking action, with ride sharing regulatory bills introduced and squashed in Washington, Oklahoma, Maryland, Georgia and Florida, and passed in Nebraska, New Mexico, Nevada, Colorado, Missouri and Tennessee, among other states. Ordinances have also been considered in various cities throughout the United States, including in Texas in Austin, Dallas, Houston and San Antonio.

Some lawmakers cite concerns about unfair competition by the unregulated transportation networking companies (TNCs) — such as Uber, Lyft and Sidecar — within the otherwise highly-regulated taxi industry. More importantly, numerous incidents have highlighted security lapses and insurance coverage gaps within the unregulated TNC model.

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From One Second to the Next tells four heartbreaking stories about the devastation caused in the few seconds when a driver looks down at her or his phone and texts while driving. This must-see documentary adds human faces and voices to the tragic consequences.

Texting while driving is incredibly dangerous. Statistics show that 3,328 people were killed and 421,000 people were injured in 2012 in collisions involving distracted drivers. Texting takes five seconds on average, which if you are driving at 55 mph is tantamount to travelling the length of a football field while wearing a blindfold.  From One Second to the Next shows the human costs of those five seconds.

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Woman Texting While DrivingPopular New Law Will Increase Safety on This Fort Worth Suburb’s Roads

The Bedford City Council just passed an ordinance that makes texting while driving a Class C misdemeanor that is subject to a $200.00 fine. Reading, writing and sending texts and emails and using the Internet while driving are now unlawful. Exceptions include using the smartphone in its hands-free mode or as a GPS system by affixing the device to a rear view mirror. 

The popular measure gained the support of 90 percent of Bedford residents and won unanimous votes of the full City Council. Texting while driving is already unlawful in other Texas jurisdictions and will hopefully one day be banned statewide. The dangers associated with using electronic devices while controlling a vehicle so far outweigh any possible benefits that banning the activity is common sense. 

According to the Texas Department of Transportation, 460 of the 3,377 fatal automobile and truck accidents in Texas in 2013 involved distracted drivers.

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Car crash -- upside down carLowering Legal Limit to .05 BAC Would Save 538 Lives Each Year

The holiday season is also drunk driving season in Texas. Thanksgiving dinner, Christmas parties and football tailgating commonly inspire overindulgence. However, even if you drink responsibly, you may still be at increased risk of impaired driving. The law sets .08 percent blood alcohol content (BAC) as the per se limit of impairment, but you are in fact affected by alcohol at a much lower level.

Mark R. Rosekind is the nominee for the top National Highway Traffic Safety Administration (N.H.T.S.A.) position. He is a specialist in the effects that fatigue, circadian rhythms, drugs and alcohol have on human performance. In his current role at the National Transportation Safety Board (N.T.S.B.), Mr. Rosekind advocated for the reduction in the per se impairment limit to .05 percent BAC. He bases his recommendation on studies that demonstrate a sharply increased auto accident risk when a driver has a BAC below the current .08 legal limit. His proposal was met with strong opposition and has not been passed, but let’s consider the facts that support a .05 BAC limit.

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