Bailey & Galyen’s new Fort Worth Office is open for business on June 1st. The office is located just South of I-30, at 1300 Summit Avenue, in the Frost Bank Building of The Summit Office Park. Not only are our attorneys some of the top litigators in the state of Texas, with extensive trial experience and an impressive record of success, but at Bailey & Galyen, many of our attorneys are board certified by the Texas Board of Legal Specialization in the following practice areas: Personal Injury Law, Family Law, Criminal Trial Law, Appellate & Civil Law. That means our clients are being represented by attorneys who have demonstrated special competence in their area of specialization. Furthermore, a board-certified attorney must also have extensive knowledge of the laws of evidence, procedure, and substantive law. We are proud of the fact that we offer the specialized talent of board-certified attorneys to our clients.
FACT #1: BAILEY & GALYEN receives 30-40 calls each month from potential new clients wanting to sue an emergency room doctor and hospital for their negligence.
FACT #2: Most of those potential new cases do actually involve clear negligence by the emergency room doctor and hospital.
FACT #3: Even with clear negligence by the emergency room doctor and hospital, you cannot pursue or file that case because the emergency room doctor and hospital are protected by Texas law.
The Texas legislature in 2007 amended the laws that deal with medical malpractice cases. Texas Civil Practice and Remedies Code Sec. 74.151, entitled Liability For Emergency Care, now states that a person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent. The legislature has raised the level of proof required to file a lawsuit to the highest possible degree of negligence: Wilfull or wanton negligence, which means the medical error must have been intentional. That’s right. To hold the emergency room doctor and/or the emergency room staff accountable for any serious injury or death, you must be able to show that the treatment or lack of treatment by emergency room doctor and/or the emergency room staff totally disregarded or was totally indifferent to the known consequences which the patient suffered. It requires proof of actual or deliberate intention to harm the patient, or at a minimum an absolute and complete indifference to or conscious disregard for the patient’s safety. That standard is insurmountable, and it slams shut the courthouse door on the innocent victims.
Not being able to file a civil suit when a loved one has suffered serious complications, injuries or death from emergency room errors is a hard pill to swallow. How did this happen, you might ask? It is the result of the collision between political agenda of tort reform and patient safety where political agenda won.
The problem is that tort reform advocates never believe that they will be the innocent victim of emergency room medical malpractice. Further, they all believe that if they are, their claim will be meritorious and different from all those frivolous medical malpractice claims they heard so much about from tort reform advocates. The fact is that emergency room medical malpractice happens very frequently, and those who thought they would never find themselves in the innocent victim’s shoes and who supported the popular political agenda of tort reform do not like not being unable to hold accountable those responsible for these serious injuries and deaths. Put another way, Texas law gives emergency room physicians and hospitals absolute and complete immunity.
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.
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 known 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 include 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.
by Steve Sanderfer
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 donât 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 Galyenâs 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.