Volume 1, Issue 2, September 2013

Litigation news and recent relevant rulings
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Volume 1, Issue 2 September 2013  

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Accident Reconstructionist

Expert Witness Prior Testimony

Texas Courts

 




Kelly C. Walker
Partner


SPOTLIGHT:

Kelly C. Walker has been litigating civil cases in Texas since 2002. She has a passion for the law and a committed dedication to successfully representing her clients from the pre-trial phase of litigation to the courtroom and, when necessary, in an appellate setting. She has experience in a wide range of commercial, personal injury, product liability, premises, professional liability, construction defect, estate and trust, guardianship, and transportation matters.

Countless issues intersect in trust and estate law, including fiduciary duties, tax law, real estate, family businesses, bankruptcy, and creditors’ rights.   As a result, it is critical that a client has a knowledgeable trust and estate litigator who not only understands this specialized area of law, but also has the expertise to effectively resolve the most complex of trust and estate contests and handle associated fatality claims. Importantly, Ms. Walker utilizes her specialized knowledge of probate, decedent’s estates, and heirship to resolve these complex issues.  Ms. Walker’s unique and extensive experience ensures our clients receive quality legal services and the best possible outcome.  
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ANNOUNCEMENTS


The Willis Law Group is pleased to sponsor the Taste of MCCA Networking Series. Link

The Willis Law Group congratulates the 2013 Top Risk Managers as determined by D CEOmagazine. Link

The Willis Law Group further expands commercial litigation practice. Link

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In The News...
 

Texas Torts and Passenger Negligence


Historically, tort law followed the principle of contributory negligence, defined by the idea that a victim should not be allowed to recover if he participated in the cause of his injury.  This old rule of contributory negligence was coldly logical – and produced unjust results, in some cases.

Fortunately, in the 20th Century, Texas modified its tort law to replace the strictness of contributory negligence with a more flexible and equitable approach, known as comparative negligence or proportionate responsibility. In Texas, if a victim is less than 50 percent responsible for causing his injuries, he may recover that portion of harm that can be attributed to a liable defendant.

The Texas approach to comparative negligence is important for victims of last month’s Cardinal Coach Lines Inc. charter bus accident in North Texas. At the time of the accident, some victims may have been acting carelessly, such as standing or walking in the aisle while it was travelling. Under the law of proportionate responsibility, however, their carelessness may reduce their damage award, but it will not preclude them from a chance at justice. For a more complete analysis and review of this issue, please see Texas Torts and Passenger Neglect article by Marc Tittlebaum, senior attorney, The WIllis Law Group.

The Patient Protection and Affordable Care Act May Be Plaintiffs’ Foe in Personal Injury Actions


Traditionally, plaintiffs and defendants in personal injury actions agreed that the value of the plaintiff’s claim was largely driven by the cost of the medical expenses incurred by the plaintiff as a result of the defendant’s alleged negligence.  As a result, plaintiffs and defendants routinely squared off in court over what value should be assigned to the medical services received by the plaintiff.  For many years, the plaintiff had the upper hand in this battle because applicable law prevented the defendant from presenting the jury with evidence of negotiated discounts and write-offs that occurred after the plaintiff was initially billed for the medical services.
 
On July 1, 2011, the Texas Supreme Court leveled the playing field by issuing its landmark decision in Haygood v. Escobedo, holding that Texas’s collateral source statute does not bar evidence of discounted amounts to determine reasonable value of medical services provided to a plaintiff in a personal injury action and that, to the extent adjustments or accepted charges for medical services may be introduced into evidence without referencing insurance, they are allowed.  In Haygood, this rule was applied to reduce the amount of damages awarded to the plaintiff for past medical expenses. 
 
Application of the rule of law in cases involving claims for future medical expenses is particularly important for the defense when the plaintiff’s injuries are catastrophic and the plaintiff is a minor or young adult.  In those circumstances, the plaintiff’s attorney is likely to submit into evidence, through expert testimony, a life-care plan that will set forth substantial medical expenses expected to be incurred over the course of the plaintiff’s lifetime, without taking into consideration the extent to which the future medical expenses may be subject to discounts or write-offs by insurance providers.  This unduly inflates the value of the plaintiff’s claim and misleads the jury as to the amount of the future financial burden associated with the plaintiff’s injuries.  This is particularly true in light of the impact the enactment of the Patient Protection and Affordable Care Act (the “Act”) will have on the medical landscape.
 
This Act will require all Americans to have health insurance by 2014.  And, as of September 2010, health insurance providers cannot limit or deny benefits or deny coverage for a pre-existing condition for children under the age of 19.  This portion of the Act will be phased in for adults age 19 or older beginning on Jan. 1, 2014.  As such, the parties to the litigation know with reasonable certainty that all future medical expenses will be subject to discounts and write-offs and that the plaintiff ultimately will not pay the amount initially billed for any future medical services.  If the plaintiff is permitted to present evidence to the jury based on paying ‘full price’ of future medical care, without reference to negotiated discounts or write-offs, the jury will ultimately be rendering a verdict based on fiction and the plaintiff will, once again, unfairly have the upper hand in litigating the reasonable value of the medical services at issue.
 
As such, defense counsel should seek a pre-trial motion to prevent the introduction of any evidence of the ‘full price’ of future medical expenses on the grounds that the evidence is irrelevant and inadmissible under Texas Rules of Evidence 401 and 402 or, although allegedly relevant, inadmissible because its value as proof is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury under Rule 403.  If the motion is denied, the next course of action is to present defense evidence at trial documenting anticipated amounts of future discounts/write-offs through the testimony of a qualified expert.  Compilation and use of this evidence during the course of the litigation and at trial can reap substantial benefits for the defense in the form of lower verdict amounts and added leverage in pre-trial settlement negotiations.  This tactic should not unfairly prejudice the plaintiffs as the settlement or verdict that results will fairly and accurately represent the true value of the claim and create a level playing field for all.
 

IN THE NEWS

One Week Left: Is Your Office HIPAA Compliant?

The Sept. 23, 2013 deadline for covered entities, business associates and their subcontractors to implement the new HIPAA rules is approaching quickly. In case you missed it, on Jan. 25, 2013, the U.S. Department of Health and Human Services issued an omnibus final rule modifying the Health Insurance Portability and Accountability Act of 1996. The effective date is Sept. 23, 2013, and your business must review its policies and take necessary steps to ensure HIPAA compliance and avoid potential penalties from failing to act. -  LINK FULL ARTICLE TO WEB-SITE

The final rule made sweeping changes to the privacy, security, enforcement and breach notification rules under HIPAA. Additionally, subcontractors of business associates are now covered under HIPAA and must agree to the same restrictions and conditions as the business associate. Both businesses familiar with HIPAA and those new to HIPAA compliance need to use the remaining time before September 23 to ensure they are ready to meet the deadline. The following items should be on any HIPAA compliance checklist:
 
  1. Covered Entities Must Update Notices of Privacy Practices: The final rule mandates changes to covered entities’ notices of privacy practices (“NPP”). The required updates are fairly specific but include provisions such as describing uses and disclosures of protected health information (“PHI”) for which an authorization is needed (sale of PHI, use of PHI for marketing purposes, etc.) and informing patients of their right to be notified in the event of a breach of unsecured PHI.

  2. Business Associate Agreement Updates: A valid business associate agreement now requires additional provisions under the final rule, and organizations should update any current agreements. Business associates must agree to report any breaches of unsecured PHI to the covered entity, regulate their subcontractors, and comply with HIPAA’s privacy rule to the extent they are performing the covered entity’s obligations.

  3. Breach Response Policies: New standards for breach response policies are made known in the final rule, and businesses need to review current policies for necessary changes. These updates range from changing the definition of “breach” to updating the risk assessment that businesses must undertake to identify a breach. On the whole, these changes make it more likely unauthorized use or disclosure will constitute a breach.

  4. HIPAA Authorization Form: Businesses must revise their HIPAA authorization form to reflect new rules and standards. These changes are fairly straightforward in the final rule, but if companies are engaged in sending or requesting PHI, their HIPAA authorization must be updated.

  5. HIPAA Policy and Procedure Manuals: Numerous changes, large and small, should be reflected in your organization’s HIPAA manual and associated policies. Some of the changes are derived from the aforementioned amendments to NPPs, business associate agreements, and breach notification. Other updates pertain to electronic medical records. Organizations should amend their policies to reflect the new rules.

  6. Training Employees: Businesses cannot update written materials and carry on.  Employees involved in handling PHI should be made aware of the updated rules and understand the new policies and standards.
 
Although the clock is ticking down to the September 23 compliance deadline, there is still time to act. If you are a covered entity, business associate or a subcontractor of either, use the remaining weeks to analyze these areas of your HIPAA policies and procedures, and take the necessary steps to ensure your compliance.   
 
Omnibus HIPAA Rulemaking Link

 

 

Decision Alert


The Merits of New Trial Orders by Texas Courts Are Now Subject to Appellate Review

Texas trial judges have been afforded very broad discretion in granting new trials. Readers who took a Texas civil procedure course in school may recall being taught that an order granting a new trial may be reviewed under only two circumstances: (1) when the order is void (such as when the trial court lacked jurisdiction); or (2) when the trial court erroneously concluded that answers in the jury charge irreconcilably conflict. No more. 

Texas courts said that trial courts have discretion to grant a new-trial "in the interest of justice." But after the decision in In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex 2009) (orig. proceeding), that is no longer true. Trial courts must now specify the reasons for a new trial, and "in the interest of justice" is not a sufficient reason.

Though orders granting new trials are fairly rare, trial judges have no doubt relied on the rule that such orders are virtually unreviewable on appeal. That may still be, if the court provides an explanation rising to the level of "good cause" under TRCP 320. Whether a particular explanation satisfies that undefined standard will be the subject of future litigation. In the meantime, merely requiring the explanation reflects a significant shift in Texas law.  See more regarding the In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P. decision.
 

Effective Litigation Is Not 'Boilerplate' -
Shaping The Future Together


The Willis Law Group knows each case and client is unique and we proceed accordingly by building individualized solutions, communicating regularly, being responsive and reaching efficient resolutions. We are based in Dallas, Texas and have offices in Houston, New Orleans, Oklahoma City and San Antonio. Our boutique legal defense firm has 25 attorneys practicing a wide variety of insurance defense and commercial litigation work, including construction, employment & labor, environmental, healthcare, rig/oil well disasters, insurance coverage and professional services.
Copyright © 2013 The Willis Law Group, P.L.L.C., All rights reserved.


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