As Middle Eastern autocracies erupt in protest, we Americans know what the people in the streets are fighting for: Freedom.  We have the luxury of debating what “freedom” means.  I think “being free” is reflected in three ideals:

1.  Democracy. People are entitled to choose their government, but is democracy enough?  If they hold an election and choose a new dictator, what have they gained?  Look at Iran.

2.  Pluralism. Liberty is translated from theory into practice when citizens have equal rights regardless of race, gender, religion, national origin or sexual orientation.  Americans embrace freedom, but what sets us apart is our commitment to diversity.

3.  Law. What good are rights without a legal system to enforce them?  Our Founding Fathers recognized all the freedoms in the Bill of Rights depend upon the Sixth and Seventh Amendments – the ability to enforce those rights in a court of law, before a jury of your peers. Thomas Jefferson said, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”

Those are three ideals worth fighting for!

Saying “No” is one of the worst jobs of a trial lawyer. We are in business to help injury victims.  People who call expect us to do something! When the law and facts are unfavorable, people do not take the news well.  And who can blame them?  They keep hearing people get rich from lawsuits.  It is untrue.  At best, people are compensated and not enriched in lawsuits.  “Frivolous lawsuits” and the “lawsuit lottery” are illusions.  You are much more likely to lose a valid lawsuit than win a frivolous one.  But the sales job by the “tort reform” lobby has been relentless, so people have expectations, particularly when their injuries are not their fault.

Your legal rights and remedies have been slashed and burned by an aggressive, anti-consumer, pro-insurance Texas Legislature and Supreme Court.  As a result, we lawyers say “No” on many cases we accepted in the past.

Premises liability cases – where someone slips or trips and falls – are an example.  For years, lawyers could win these cases if we showed an operator of a business should have known there was a hazard.  Over the past twenty years, the Supreme Court of Texas has made it difficult to win a case without showing employees of the business actually knew there was a hazard.

Most people who slip and fall in stores are treated as pests by store management and even worse by claims adjusters.  They are strung along and asked for proof of their injuries only to be told (often after the two year statute of limitations passes) the store was not at fault and they will receive no help.

Retail stores refuse to pay injured customers’ medical expenses as they arise.  People with health insurance have a means of seeking care.  Those without coverage are left in limbo.  They cannot afford treatment, and most lawyers will not help them.  The lines at public hospitals like Ben Taub and LBJ are long and frustrating, but they are frequently the only choice for people with no coverage.

So, what should you do if you fall at a store or other public business?  Here are steps to follow:

1.  SAY SOMETHING! Let people around you know you have fallen.  Summon help from store personnel and bystanders.  Try to find witnesses to help you confirm the hazard had been there a long time and was being ignored by store personnel, and get their contact information (name, address, phone, email).

2.  TAKE PICTURES. Use a camera or smart phone to take as many photographs of the area as possible – including the source of the spill or other hazard – before store employees change the scene.

3.  SEEK MEDICAL CARE. Do not wait for the store’s claims staff to help you.  Go to a hospital or the doctor immediately, even if you have to go to a public hospital or emergency room.  Continue to seek care as needed.

4.  WRITE THE STORE.  Send a certified letter with a return receipt (green card).  State the date, time and location of your fall and ask the store to “preserve any and all video images that show the area of the fall and 200 feet around that area for at least two hours prior to the incident.”  Keep a copy of your letter.  If you have a fax machine that will print out a confirmation sheet, you can fax the letter instead of sending it by certified mail.

5.  CALL A LAWYER.  Do not wait to be told “NO” by the store’s claims adjuster.  Go over the facts of the incident with a lawyer as soon as possible.

Even if you follow these steps, you may not have a case.  But you may at least have a fighting chance!

As Rep. Gabrielle Giffords continues to heal from her injuries, we in Houston should be proud she chose TIRR – the Institute for Rehabilitation and Research located in the Texas Medical Center – as the next stop on her road to recovery.  Few places offer such amazing resources for the treatment of brain injuries.

Just as the wars in Iraq and Afghanistan have brought to light the horrors of TBI (traumatic brain injury) and PTSD (post-traumatic stress disorder), Rep. Giffords’ journey will shine a light on the world of rehabilitation from serious brain and spinal cord injuries.  TIRR and its amazing doctors, nurses, therapists and other caregivers rehabilitate patients with many forms of impairment caused by injury and illness.  Once patients cross the TIRR threshold, the focus turns from what brought them there (car accident, stroke or gunshot wound) to how they will be rehabilitated to lead a productive life.  TIRR’s halls are lined with photographs of success stories, most of whom are people you do not know.  Their stories are no less compelling, even if they do not occupy the spotlight of national recognition.

The road is often difficult, and not all the stories are successful.  Success in the world of rehabilitation often comes in small increments: the ability to feed oneself, operate a motorized wheelchair or communicate with assistive devices.  There are also big wins, such as Ken Everett, the Buffalo Bills football player who came into TIRR paralyzed from the neck down and walked out.

One harsh reality in the world of rehabilitation is the enormous cost of care, a burden which will thankfully never impact Rep. Giffords.  However, from the moment a catastrophically injured patient enters rehabilitative care, funding is an issue.  Lifetime maximum benefits and bureaucratic red tape are unavoidable elements of an insurance-based healthcare delivery system.  For people with no coverage, the perils are even greater.  Treatment at the TIRR level of rehabilitation is expensive, and even though TIRR has become a part of the Memorial Hermann system, it operates on a budget.  Just as importantly, the needs of patients do not end when they leave TIRR.  In the absence of adequate insurance coverage or resources, many patients become wards of their families, as parents, children and siblings become principal caregivers.

And some patients end up alone in nursing homes.

We all wish Rep. Giffords a full and complete recovery.  As she goes through her recovery, she may become an advocate for those who face similar challenges.  We should all be prepared to listen.

Amid the rush to judgment in the aftermath of the terrible events in Tucson, there are two inescapable realities.  There are people among us who are mentally unstable, and many of them have access to high powered weapons.

These two truths have the potential to affect all of us.  There are men and women of all ages with undiagnosed, untreated mental illness.  Guns which can inflict massive levels of damage are available at retail stores.  A combination of the two is potentially deadly.  If you operate a business or go to places where people congregate, you face this potential threat.

Access to mental health care is extremely limited.  Health insurance policies and plans severely restrict benefits for psychiatric care.  Public mental healthcare services are sparse and overburdened. Many people with serious psychiatric conditions are not diagnosed or treated.

Guns available at retail stores and online are powerful and have large capacities.  A deranged shooter can inflict dozens of casualties in a matter of minutes.  Columbine…Virginia Tech…Tucson.  All involved lunatics using high powered weapons.

Because individuals have the capability of acquiring weapons of mass murder, the need to reform our mental healthcare system has never been more urgent.  This should not be a political fight.  Insurance companies and employer health plans should not be permitted to discriminate between coverage of physical and mental conditions.  People who observe family members, friends or coworkers exhibiting signs of severe mental illness, and particularly aggressive or violent behavior, should have better resources so that dangerous people can be identified, treated and prevented from buying guns.

We do not know if these measures would have prevented what happened in Columbine, Virginia Tech or Tucson.  But they might prevent the next tragedy.

The minimum limits of automobile bodily injury liability insurance are $25,000 per person/$50,000 per accident.  Those limits go up to $30,000/$60,000 on January 1, 2011.  However, people with severe injuries often find these minimum limits do not cover all their medical bills, lost income, pain and suffering and other damages.   What can you do?

First, to protect yourself, buy uninsured/underinsured motorist (UIM) coverage. UIM coverage pays your damages when the other driver has no insurance or too small a policy.  Everyone should have at least $50,000 in UIM coverage, and more if you can afford it (your UIM coverage cannot exceed your liability coverage, so that is a consideration).

However, there is a legal doctrine that can actually make an insurer liable for more than the limits of coverage.  The “Stowers Doctrine” provides that insurance companies that negligently reject an unconditional offer of settlement within the limits of coverage may be held liable for the entire judgment.

If that sentence was complicated and hard to follow, don’t feel alone – many lawyers do not know the ins and outs of this doctrine! However, for those of us who work in personal injury law, it is a tool we use in selected cases.  In order to set up a “Stowers claim,” the plaintiff (injured person) must offer to settle all claims against the insured for the amount of the coverage.

This can be a calculated gamble, particularly if there is any chance of collecting a judgment in excess of the policy limits from the insured.  There may be other stakeholders in your claim, such as health insurers who claim a right of reimbursement or “subrogation,” who will have to be paid out of the settlement if the insurance company accepts the offer.   You should also make sure you have written permission from your UIM carrier.  Otherwise, you will be violating a provision of your policy and may not be able to recover UIM benefits.

This doctrine is not actually implemented unless the offer is rejected, and you go to court and obtain a judgment in excess of the policy limits.  If the defendant cannot pay the amount of the judgment in excess of his policy limits, you have the right to file a second lawsuit against the insurance company.  If you prove the insurer was negligent in failing to settle, you can recover the balance of the judgment from the insurer, even if that amount exceeds the policy limits!

You cannot turn a $25,000 case into $100,000.  However, if you have a $100,000 case, and the responsible party has only $25,000 in coverage, there is a strategy to try to collect the entire amount.

If you are in an accident, an adjuster or investigator may ask for your recorded statement.  Regardless of whether the adjuster works for your insurance company or the “other side” of the claim, the statement becomes a permanent record of your version of relevant facts.  Do not treat recorded statements lightly, and if your injuries are serious, talk to a lawyer first.

Unlike testimony in court or a deposition, you are not under oath when you give a recorded statement.  That is small consolation when the statement is played back to you at trial, and you have given incorrect information or left out important details.  Imagine an opposing attorney saying, “You may not have been under oath, but you said it, didn’t you?” Most personal injury jury trials revolve around the credibility of the plaintiff (i.e., whether you are telling the truth), so the other side will attack your credibility with a recorded statement.

Injuries that seem small at first may turn significantly worse. I have represented hundreds of people whose initial moderate neck or back pain ultimately led to surgery.  At the time of a recorded statement, you may have no idea that you will end up in a lawsuit.  Assume the recorded statement is important.

Here are some general pointers about typical traps people fall into when giving recorded statements:

1. Your medical history. You may have never had back pain this bad, but if you went to a doctor 20 years ago and complained of soreness in your back, say so.
2. Your current condition. Do not leave anything out that feels different, regardless of whether it is painful or related to the injury.  That numbness you feel on the front of your leg may be a symptom of a back injury.
3. Time, space and speed. Inaccurate details that can be measured can come back to haunt you.  You did not sit at a red light for “a few minutes,” the oncoming vehicle was not “a mile away,” and the other driver was not doing “eighty miles an hour” when he ran into you.  If you do not know an answer, do not guess!
4. Different kinds of recorded statements. Statements to police officers are recorded on accident reports.  Medical histories given to a doctor (verbally or on intake forms) are recorded in your medical records.  Jurors usually believe what they read on police reports or in medical records.
5. In Texas, only one party to a conversation must consent to a recording. You may be recorded without your knowledge!  Most insurance adjusters will ask your permission to record your statement.  Some investigators will not.  A good rule of thumb is: Whenever you speak with someone about an accident or your injuries, assume you are being recorded!

I have been accused of being too verbose (guilty) and even “too preachy.” Let me break from that pattern and merely pass on a report from the World Justice Project, which finds in its Rule of Law Index that the United States ranks last among eleven developed countries in access to justice for “ordinary people.”

Of particular note was the gap between wealthy and poor citizens in their view of the fairness of the legal system:

In the United States, “only 40% of low-income respondents who used the court system in the past three years reported that the process was fair, compared to 71% of wealthy respondents. This 31% gap between poor and rich litigants in the USA is the widest among all developed countries sampled. In France this gap is only 5%, in South Korea it is 4% and in Spain it is nonexistent.”

I’m not preaching.  I’m just saying this report is worth considering.  The U.S. has also fallen behind other developed countries in education.  How do we find it acceptable that our country comes in last in anything?

Martin Luther King said, “Injustice anywhere is a threat to justice everywhere.”

Have a great weekend!

Benzene is a component of crude oil known to cause health problems in humans.  Direct exposure to benzene has been linked to leukemia.  Exposure to benzene in the environment was a suspected cause of birth defects, but there was no ironclad proof.  Until now.

A recent federal study concluded that ambient (environmental) exposure of benzene to pregnant women can cause spina bifida in babies.  Spina bifida is a birth defect involving incomplete formation of the spine that can result in severe and permanent disability.  Spina bifida occurs more often in the Hispanic population, but the condition afflicts babies of all races and national origins.

This groundbreaking study, by the National Institute of Environmental Health Sciences is important because it provides mainstream scientific support for the claim that babies with spina bifida whose mothers lived in the shadows of refineries are victims of poisoning.  This means they can sue the polluters.

Under Texas law, scientific evidence must come from peer-reviewed research from generally accepted sources.  To prove a link between an environmental exposure and a health condition, the research must show more than a “doubling” of the risk.  This study meets both criteria.

This is particularly important to Southeast Texans.  As the Houston Chronicle reported on October 28, 2010, citing an EPA report, “Texas leads the nation in benzene releases, accounting for more than one-third of emissions among the states.”  While benzene releases have declined over the past five years, there are many children with spina bifida who may now have a right to recover damages.

If you know anyone who suffers from this tragic condition, tell them to read the study, and then call a lawyer.

Have a safe Halloween weekend!

DePuy Orthopaedics makes artificial hips.  Joint replacements are a juggernaut of healthcare profits, but as with other products, things can go wrong.  According to the DePuy website, their ASR hip products (the “resurfacing device” and the “total hip replacement”) are being recalled. “New data” shows 12-13% of these products fail.

If your car is recalled, the dealer takes out one whatchamacallit and puts in another.  Hopefully, no one has been injured.  When a hip prosthesis is recalled, the whatchamacallit is cemented into your body.  Taking it out requires surgery that is painful and debilitating, and may cause additional problems.

Under the “what to do” tab on the DePuy website, “patients” are directed to a claim process.  If DuPuy agrees you qualify, you may recover medical expenses and lost income.

There are other things DePuy does not tell you, such as your deadline for filing a lawsuit, your right to recover damages for pain and suffering, mental anguish and physical impairment, and how to make sure you are being properly evaluated by an independent orthopedic surgeon.  And FYI, DuPuy insists most people with defective implants will have no problems.

If you want to know all your legal rights, call a lawyer. Victims injured by defective products should seek legal advice that is in their (and not DePuy’s or some corporation’s) best interests.  That information is not on the product manufacturer’s website.  Most lawyers who practice personal injury law will advise you of your rights at no cost.

Victims of defective products should not rely on defective legal advice.  Call a lawyer.

Have a great weekend!

Early Voting begins today in Harris County.  Voting on Tuesdays is difficult for people who work.  Early voting solves that problem.  Vote early so you will not get caught in the Tuesday Squeeze, where you cannot get to the polls between 7am and 7pm.

There are 37 early voting locations, which you can find HERE.

For those of you who believe people with legitimate claims should have fair access to the courts, here are my endorsements.  I limit my endorsements to statewide and Harris County races that directly affect the civil justice system, and those in bold are hotly contested or particularly important (to me) races.

Before turning to the list, let me first hightlight one candidate endorsed (or at least rooted for) by every lawyer who actually practices in the district courts of Harris County:  Loren Jackson, who is running for reelection as District Clerk.

Loren has revolutionized the District Clerk’s office in two short years, and he has big ideas to make it even more user-friendly and accessible to lawyers and citizens alike.  Even if you are voting straight Republican (and I hope you aren’t), make an exception and vote for Loren Jackson.

Governor:  Bill White
Lt. Governor:  Linda Chavez-Thompson
Attorney General:  Barbara Ann Radnofsky
Justice, Supreme Court, Place 3:  Jim Sharp
Justice, Supreme Court, Place 5:  Bill Moody
Justice, Supreme Court, Place 9:  Blake Bailey
State Senator, District 13:  Rodney Ellis
State Senator, District 15:  John Whitmire
State Representative, District 126:  Casey McKinney
State Representative, District 128:  Joe A. Montemayor
State Representative, District 132:  Silvia Mintz
State Representative, District 133:  Kristi Thibaut
State Representative, District 134:  Ellen Cohen
State Representative, District 137:  Scott Hochberg
State Representative, District 138:  Kendra Yarbrough Camarena
State Representative, District 141:  Senfronia Thompson
State Representative, District 143:  Ana E. Hernandez
State Representative, District 144:  Rick Molina
State Representative, District 148:  Jessica Cristina Farrar
State Representative, District 149:  Hubert Vo
State Representative, District 150:  Brad Neal
Chief Justice, 1st Court of Appeals:  Morris Overstreet
Justice, 1st Court of Appeals, Place 4:  Michael Gomez
Justice, 1st Court of Appeals, Place 8:  Robert Ray
Justice, 14th Court of Appeals, Place 2:  Norma Venso
Justice, 14th Court of Appeals, Place 5:  Wally Kronzer
Justice, 14th Court of Appeals, Place 9:  Tim Riley
District Judge, 55th Judicial District:  Dion Ramos
District Judge, 113th Judicial District:  Christina Bryan
District Judge, 157th Judicial District:  Shawn Thierry
District Judge, 189th Judicial District:  Ursula A. Hall
District Judge, 190th Judicial District:  Olan Boudreaux
District Judge, 234th Judicial District:  Reece Rondon
District Judge, 269th Judicial District:  Katie Kennedy
District Judge, 270th Judicial District:  Bob Thomas
District Judge, 280th Judicial District:  Kathy Vossler
District Judge, 281st Judicial District:  Donna Roth
District Judge, 295th Judicial District:  Caroline Baker
County Judge:  Gordon Quan
Judge, County Court at Law No. 1:  Erica M. Graham
Judge, County Court at Law No. 2:  Cheryl Elliott Thornton
Judge, County Court at Law No. 3:  Damon Crenshaw
Judge, County Court at Law No. 4:  Bruce Mosier
District Clerk:  Loren Jackson
County Clerk:  Ann Harris Bennett