Pro-Choice is defined by the Oxford Dictionary as those advocating legalized abortion.

Pro-life is defined by the Oxford Dictionary as those opposing abortion.

Abortion is defined by the Oxford Dictionary as the deliberate termination of a human pregnancy.

Choice is defined by the Oxford Dictionary as a range of possibilities from which one or more may be chosen.

            This week the U.S. Department of Health and Human Services Secretary Kathleen Sebelius issued a statement detailing the requirement that employers are required to provide insurance coverage including contraceptive drugs including abortion drugs. 

The rule will require most health insurance plans to cover preventive services for women including recommended contraceptive services without charging a co-pay, co-insurance or a deductible.  Beginning August 1, 2012, most new and renewed health plans will be required to cover these services without cost sharing for women across the country.  

Nonprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law. This additional year will allow these organizations more time and flexibility to adapt to this new rule. 

The entire statement can be found at http://www.hhs.gov/news/press/2012pres/01/20120120a.html.

If you are a Pro-Life employer you are understandably upset as the rule would require you to pay for something that you oppose on potentially both moral and religious grounds.  If you are Pro-Choice I would think that you would be concerned as it is a clear move by the government to do away with Choice.  In this rule they are requiring everyone to either obey the law in violation of their personal belief (religious, moral, etc.) or to violate the law and face the consequences.  If the issue is truly one for the women whom it impacts — as espoused by Pro-Choice proponents then why is this decision a government issue which requires those who do not agree to pay for that decision.

The issue of pro-choice v. pro-life is one that is so fundamental to most people that a discussion on it will generally end with whether you consider the embryo to be a baby or not.  The issue of paying for terminating the life of a baby is not one that should be forced upon anyone or mandated by the government.

The statement by Secretary Sebelius that an additional year will allow these organizations more time and flexibility to adapt to this new rule is ridiculous.  Who is the government to give a person or group a year to adapt to a rule that violates their very moral and/or religious beliefs?

For the purpose of this discussion, I don’t care if you are pro-choice or pro-life.  This is an issue of pro freedom from government interference in your life.  The very thing that pro-choice advocates claim to have fought to achieve they are now conceding and welcoming because they see it as a benefit to them.

Great tort reform works. Oh Wait.

What about the hospital bills that Medicare/Medicaid paid on behalf of Joan. Well you and I paid those bills, after all isn’t Medicare/Medicaid essentially a tax funded insurance plan. But wait there’s more (I love infomercials) and since the hospital didn’t get the full value of their services they raise their charges to offset the loss which causes the cost to go up for everyone else. So now you and I are paying for the injuries caused by Rich. So when we hear loser pays we need to just admit that you and I are paying and Rich gets a free ride for his actions. Next time we will discuss the Court Decision I affectionately call Brainless.

The opinions in this blog, as always, are mine and not necessarily those of the firm.

http://scholar.google.com/scholar_case?case=8478677452372294245&hl=en&as_sdt=2&as_vis=1&oi=scholarr

This should have been front page news in papers across Texas this past week as our Supreme Court issued its opinion in the case Haygood v. Escabedo. Did you see a single paper discuss this ruling? Have you heard any of the radio or TV talk shows discuss this case? Why not? Where is the outrage?

I hear comments from people every month who call me about a workers compensation claim, medical malpractice or other issues. I tell them I can’t handle it because the law has made it almost impossible. They almost invariably tell me that it wasn’t supposed to impact their case only those frivolous ones. When I ask them why they weren’t mad and outraged when the laws were being passed or the Supreme Court was “interpreting” them, they always say it didn’t impact me so I didn’t pay attention. The only outrage about our rights being taken away nationally and in Texas seems to be coming from the trial lawyers. I am proud to be in the outraged group.

So what has the Texas Supreme Court done in its latest piece of judicial activism? Their twists and turns distort the law so much it would make a contortionist envious.

The Court’s decision in Haywood v. Escobedo allows the person or company who harms you or your family to benefit from the health insurance you have paid premiums for all these years.

The Court argues there ruling is necessary to prevent a “windfall” to the claimant (that would be the person injured, maimed or killed by the drunk or other reckless driver to us normal people).

They also argue they are just interpreting the law as the Texas legislature wanted. Hard to believe that is the case when the legislature actually tried to repeal the law they are “interpreting” the session after they passed it as they realized what it truly was — which is a windfall for the drunks, reckless drivers and their insurance companies. However Governor Perry vetoed the repeal of the bill so it is still on the books.

So here we are with an Activist Court that needs to protect the drunks and insurance companies, but how? They have already overturned virtually every jury verdict for any Plaintiff that comes their way. So rather than wait until a jury hears all the evidence and votes to compensate the injured person, they have decided to limit what the jury can hear so the compensation will be even lower and the insurance companies will have to pay less, make more profits and be able to contribute to all the expensive political campaigns.

Here is how the Court accomplished this with their latest decision: Let’s start with a situation where you are hit by a drunk who has a policy of $50,000.00. You are taken by life flight to the hospital where you stay for a week. You then have to go through rehabilitation. After about four months you are mostly better. You missed a month of work and still can’t do everything, but hopefully you will get where you can sleep through the night and play with your kids without having to tell them Daddy needs to rest. You have worked hard for years and paid for your health insurance at the cost of some vacations you wanted to take, but you knew how important it was for you to provide coverage for you and your family in case a situation like this happened. The medical bills were over $100,000.00, but because of your group plan they managed to reduce the total to $35,000.00 and since you met your deductible earlier in the year, you don’t owe anything else.

You send the bills to the drunks’ insurance carrier and ask that they pay the $50,000.00 policy limits because your medical bills alone are over $100k. Pretty straight forward right? You shouldn’t even need to get an attorney to settle this case. The operative word there is shouldn’t.

The reality is the insurance company will tell you we don’t owe $100k in medical because we get to take credit for your health insurance premiums and negotiated rate so all we will owe is $35k and we don’t think all of that is related because we know you hurt your neck 15 years ago when you were putting in fence posts and saw a chiropractor one time so we think all your neck issues are related to that and not this head on collision. So with the paid amount being $35k and us taking out some of the neck issue which we believe is not related (and because we can), we are willing to settle your case for $28,500.00.

What gives them the right to get the benefit of your paying premiums all those years: “Home Office” which is what they consider the Texas Supreme Court. Why shouldn’t they? They have won virtually every case that makes it there. Now the Texas Supreme Court has ruled that the only evidence a jury may consider in determining medical expenses are those amounts which were actually paid or will be owed by the person injured. So all those years of paying premiums and making sacrifices for you and your family to be covered is now benefitting the person who caused the wreck. The jury is not allowed to hear about how the bills were over $100k and because you had insurance it was reduced to $35k. They are not allowed to hear about the premiums you have paid to make that reduction possible. They may not even be allowed to hear about the deductible if it was met before this wreck. All because our Supreme Court has determined that it would be a “windfall”. How is it they never seem to be have a problem when insurance companies have a windfall of profits.

So if you happen to serve on a jury or hear about someone on a jury who talks about how this person was in a wreck but only had xxx in medical you can be fairly certain that it is at least 3x that amount of actual medical charges.

For my lawyer friends we know there are also significant issues regarding how Section 18.001 will be impacted and other battles over what constitutes paid –Is a deductible to be considered? Co-pay?

Some of you may know that I spent my senior year of high school attending gymnasium in Germany (which is the German equivalent of our U.S. high school). One of the things required in history classes was a complete study of the Nazi takeover both in political and military terms, which included the apathy and violence. The rational was if you never forget you will never repeat. If you were to ask someone who lived through that time how they could let it happen they would tell you it was not a sudden change. Rights were taken away one by one and it always was something that didn’t concern them. If someone was complaining about this or that they didn’t care because it didn’t impact them. Until one day it did. Then it was too late. Everyone asked how could “they” let this have happened? And then it became clear they were the “they” who allowed it.

As always I welcome comments.

first — the insurance company needed to be able quantify how much they would owe and they couldn’t do that under the current laws second – to keep premiums affordable.

The problem is the first issue (while true) is not a legitimate reason to take people’s right to recover their damages. If TWIA would have done the job they were supposed to do they would have been able to quantify how much they would have owed for claims. The problem is they denied legitimate claims which resulted in their policy holders having to file suit to recover the damages they were legally entitled to recover. That included recovering the damages for attorney fees and damages to punish them for their misdeeds. Those damages and fees were required by law when the company violated their duty to their policy holders.

So what do our current elected officials do to correct this violation of public trust and dishonesty by the TWIA? They protect them from legitimate claims by limiting their exposure, in effect they told them — we know you lied, cheated and stole from your policy holders, but we want to make sure that you are protected from having to pay for the mess you caused.

The only time people hire a lawyer is to help them with an insurance claim is when the company isn’t doing what they should. So your insurance company is not taking care of your claim (the claim your premiums have been paid to handle) you have to hire an attorney, you prove your case, and recover damages.

Now because of this “emergency” legislation, the damages the jury determined to be fair might be reduced. The only cases it will impact are the legitimate cases – it like all the other “tort reform” legislation has absolutely no impact on the so called frivolous cases.

The second claimed reason to keep premiums affordable is laughable.

The governor signed his “emergency” legislation and less than 24 hours the TWIA raised premiums 5% for its policy holder which is the maximum allowed. So the TWIA now has been able to limit their exposure for their own misdeeds, which increases their profits and at the same time have raised the premiums their policy holders have to pay increasing the profits even more.

Hopefully all those who determined this was an emergency have been properly rewarded for their work for TWIA.

It is unfortunate that the individual policy holders who have been and will be impacted by this legislation did not have a lobbyist, but they do have a vote and hopefully will remember how you treated their concerns and rights.

If you look at the previous blog it is pictures of the new courthouse in Fort Bend County.  Sorry about the haziness, but I forgot to wipe the sea mist off the lens from my recent trip.

Finally, the latest attack on the citizens of Texas by Governor Perry and the “Tort Reform” group.   I wrote about TWIA previously, now the Governor is claiming it will require an emergency session to protect the TWIA from any damages other than actual (no attorney fees, extra damages) despite their complete mismanagement and failure to pay claims.  Perry does not see the fact that people cannot get their homes fixed and have to pay out of pocket for repairs and a place to live despite paying premiums for coverage.  I guess it is not a problem to Perry who is living in a Hill Country Home costing taxpayers over $10k a month for the last several years as the repairs are done on the mansion.   Maybe if he had pay out of pocket and fight with the insurance company he would have a different view (like how real Texans are impacted by insurance companies) rather than the view he has of how much more will they contribute to my campaign fund.

What happens when you do such a good of a job that you are no longer needed?  You create an emergency which justifies your existence.  That is what is going on in the Texas legislature right now.

Texans for Lawsuit Reform have done an amazing job in reducing the rights of citizens to bring suits to recover damages. They have done such a good job that there is no further need for reform, but then they will not continue to get all their money and be able to send money to the legislature. Baylor College of Law Review did a survey to the judges of Texas and 86% of the judges said there is no need for additional tort reform.

There are currently sanctions available for stopping frivolous lawsuits, including money sanctions and even the potential to take the attorney’s license away for filing frivolous lawsuits.  So the Texas House passes a law which is a one-way street, if a small business or individual loses to a defendant they could owe them all their attorney fees and expenses, but if the same small business or individual wins the defendant is not responsible for to pay them their attorney fees and expenses.  Is that fair?

Why would our representatives pass such a bill?  Who has contributed to their campaign funds?

If the Senate passes this we will have a one way loser pays law, but it is even stranger than that.  If the same small business or individual wins, but wins less than what the defendant has offered they can still be responsible for paying the defendants’ fees and expenses.

Here is an example of what could happen (thanks to Mark Lanier) a young woman eight months pregnant who is on her way to work when she is hit by a tractor trailer driver who ran a red light, and is in violation of Federal standards regarding hours and medications.  He slams into the young woman’s car injuring her.  She is rushed to the hospital where she is treated for her injuries.  Unfortunately her unborn baby is killed.  She brings a case against the truck driver and his company.  They offer to pay her medical, lost wages and a little something for her pain, but refuse to offer anything for killing her baby.  The Court rules that under Texas law she can not recover for the death of her baby.  This young woman who has suffered the death of her child could now have to pay the very persons who caused the death of her child all their attorney fees and expenses.

The time for Texans for Lawsuit Reform has come and gone.  Their only function now is to continually come up with new “emergencies” to justify their existence and fund raising.  While teachers, police, fire fighters, sanitation workers, etc. are being laid off and our cities and towns are suffering from real emergencies from budgetary issues and wildfires, our legislature is wasting time on an issue which does not exist except in the pocketbooks of those that fund them.  When the same judges who said there was no need for any tort reform were asked if they had even seen a frivolous case, less than half had ever seen even one.

There are always two sides to a case – the company or person brings the claim and the person or company defending it.  Just as there is a potential for a frivolous case being brought there are frivolous defenses which require cases to be filed rather than settled.

Some examples of frivolous defenses include an insurance company which has in-house lawyers getting paid if they are defending cases or not, and implements a policy to deny virtually every case which of course results in lawsuits having to be filed. All of which could have been avoided if the company had simply fairly evaluated the claims for settlement.

Another example is the uninsured coverage you have on your vehicle which you have to use when you are hit by a drunk driver who has no coverage.  You make your claim, but the insurance company denies it because the current status of the law in Texas.  The insurance company does not owe anything until a judgment is entered and even then all they will ever owe is the amount of the policy, no attorney fees, expenses, etc. So there is no downside to denying virtually every claim.  The worst case is that they owe what they should have paid in the beginning, but by raising the cost of litigation through filing fees, depositions, etc. they can essentially blackmail their own insured into taking less because they will end up with less than the policy once they have to pay the litigation costs.

This law would have a chilling effect on the small company who sues to get paid for the work they have done and gets met with an army of defense lawyers who drag the case out and make it as expensive as possible to the point where their only option is to give up rather than continuing to pay legal fees and expenses even though they are right.  Under the House bill they would not only owe their own lawyers, but those of the other side.  It could result in a decision just to take the loss even though the debt is justly owed since to pursue the claim might result in bankruptcy.

Another aspect of the proposed law which is overlooked is what could happen with health insurance cost.  If you are injured in a crash who should pay your medical bills and lost wages?  The person that caused the wreck, of course, but under this law there will be many times where it would be a better course of action not to take the risk and just let your own health insurance and disability coverage pay for your loss.  So what happens — the costs for us all go up because rather than have the person responsible pay we all will be paying.  As the system exists if you recover for your injuries from the other person responsible for the wreck, your health coverage will generally get their money back under a subrogation claim. That allows them to provide coverage at a “reasonable” rate.  What do you think will happen when they do not have the opportunity to recover their money?  Will they just eat the extra cost or pass them on to us the consumer?

So again I come back to where is the emergency here?  Is it just that Texans for Lawsuit Reform (TLR) needs to refill their coffers and justify their existence? It is even more concerning that our representatives and governor have gotten so used to the TLR money that they do not want to let it go even at the expense of all the true issues facing Texas today.

What has the insurance commission done during all this time, not a lot.  Instead all those people who paid their premiums for coverage, had to turn to trial lawyers.  TWIA has been found by juries to have underpaid claims and as such should be held responsible for the damages, including attorneys fees and expenses.  The loser pays right, not exactly.  The same House which touted loser pays (which is actually a loser or possibly even the winner pays if it is the party bringing the claim) now praises their newest House Insurance Protection Event (HIPE).

Their solution for the actions of TWIA is to make those who they have cheated to have to go before a commission selected by (you guessed it) the Texas Department of Insurance.   So the department that has basically ignored the problems faced by policy holders is now going to be the group to appoint a commission to administer claims.   Of course another provision would limit damages and recoveries of those harmed by the actions of the TWIA.

I guess this another one of those “emergencies” that had to be addressed instead of education, budgets, etc.  It is probably also just coincidence that it came up right after another jury found against the TWIA and their practices.

What happened to less government and personal responsibility? It seems like the House has determined that since no one appears to be paying attention to what is going on in Austin they will just pass every law they can to take away the rights of the citizens of Texas.

As long as they can throw in a “trial lawyer” “frivolous lawsuit” claim they believe that you will just agree with them, at least until it impacts you and by then it is too late.   A certain segment appears to have complete faith in a jury to determine whether someone should be put to death in a murder case, but unable to determine if a individual or company should be responsible for the damages from injuring another.

I am anxious to hear the justification on why you do or do not agree with the latest attack on our jury system and rights as Texans.