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Documenting and Proving Pain and Suffering

Proving pain and suffering in a personal injury case is more challenging than demonstrating economic damages and can significantly impact compensation. Unlike economic damages, which cover measurable losses like lost wages and medical bills, pain and suffering pertain to the physical and emotional distress caused by the injury. Non-economic damages can be more challenging to prove, but thorough documentation and strategic presentation can support your case.

Medical Records

Medical records are critical in substantiating claims of pain and suffering. They provide a complete account of your injuries, treatments, and the physical pain you’ve endured.

Describe the Injuries

Documentation should specify the nature and extent of your injuries, including any diagnoses, prognoses, and prescribed treatments. Indicate the severity of the injuries, such as whether they are minor, moderate, or severe.

Consistent Medical Updates

Document all follow-up visits with healthcare providers, noting any changes in your condition, additional treatments, and updates to your prognosis. Ensure that your healthcare providers maintain progress notes that detail your pain levels, mobility issues, and overall recovery process. This can help show the necessity and frequency of pain management efforts.

Specialist Reports

If you’ve consulted specialists (e.g., orthopedic surgeons and pain management experts), their reports can offer insights into your pain levels and limitations. If your injury has caused psychological or emotional distress, reports from psychologists or psychiatrists can be invaluable. They can document conditions such as PTSD, anxiety, or depression resulting from the injury.

Diagnostic Tests

Diagnostic tests offer concrete evidence of your injuries and their impact. Tests assessing your physical capabilities and limitations can illustrate how your injury affects your daily life. X-rays, CT scans, MRIs, and other imaging tests can visually demonstrate the extent of physical injuries. Blood tests and other lab results can be helpful in cases where internal injuries or infections are involved.

Personal Diary or Journal

A diary or journal can provide convincing evidence in a personal injury case by offering a detailed, day-to-day account of your pain and suffering. Unlike medical records, which provide clinical and sometimes sporadic snapshots of your condition, a diary captures the details of your experience from your perspective. This ongoing record can illustrate the impact of your injuries on your daily life, helping to humanize your case for the court or insurance adjusters. When maintaining a personal diary, focus on several key elements: consistently document your pain levels, describe how your injuries affect your ability to perform routine activities and record your emotional responses to your condition. Note specific incidents where your pain limited your participation in events, affected your work performance or prevented you from enjoying hobbies and family time.

These detailed entries communicate the physical aspects of your suffering and the emotional and psychological toll to paint a comprehensive picture of your ordeal.

Photographs and Videos

Photographs and videos offer a tangible way to convey your injuries’ physical and emotional impact, often more effectively than words alone. When documenting your injuries, take clear, detailed photographs of any visible wounds, bruises, scars, or swelling as soon after the incident as possible and continue to do so throughout your recovery. This timeline of images can show the progression and severity of your injuries and any complications or setbacks. Videos can be compelling in demonstrating how your injuries affect your daily life. Record yourself attempting everyday tasks that have become challenging or impossible due to your injuries, such as dressing, walking, or lifting objects. These videos can highlight your physical limitations and the frustration and emotional distress accompanying them. Photographs and videos can substantiate your claims by providing a vivid, authentic portrayal of your condition.

Witness Testimonies

Witness testimonies provide an external, often unbiased perspective on the impact of your injuries, adding credibility to your account. Family members and friends who interact with you regularly can offer detailed observations on how your injuries have altered your daily routines, affected your mood, and limited your ability to engage in activities you once enjoyed.

Coworkers and employers can testify about changes in your work performance, attendance, and overall demeanor at the workplace. These testimonies collectively paint a comprehensive picture of your suffering, highlighting both the physical pain and emotional distress you endure. By corroborating your documentation and personal diary entries, witness testimonies strengthen your case, making it more compelling and persuasive to the court or insurance adjusters.

Expert Testimonies

Expert testimonies are invaluable in a personal injury case, providing professional, objective insights into the nature and extent of your pain and suffering. Medical experts, such as doctors or specialists who have treated you, can explain in detail the medical implications of your injuries, offering authoritative opinions on your pain levels, treatment requirements, and the likely long-term impact on your health and quality of life. Pain management specialists can attest to the severity and persistence of your pain, discussing the effectiveness and necessity of various pain relief methods. Additionally, mental health professionals can evaluate the emotional and psychological toll of your injuries, including issues like anxiety, depression, or PTSD that may result from your injury. These experts can present their findings in clear, clinical terms that resonate with judges and juries, translating your personal experiences into quantifiable evidence.

Get the Compensation You Deserve for Your Injury

The Crash Angels of Pelaez Law Firm are dedicated to helping you get the compensation you deserve. Your pain and suffering are real, and they deserve to be acknowledged. Let us focus on the legal battles while you concentrate on your recovery. Contact Pelaez Law Firm, Crash Angels, today at 210-801-9314 for a free consultation and take the first step towards reclaiming your life.

When an injured person arrives in the emergency room, the hospital will treat them until they are stable. No one can be turned away from an ER for lack of funds—the law guarantees that for any hospital that accepts federal funding. But hospitals and other healthcare providers know that after a significant injury, medical bills will add up quickly and won’t be paid soon.

In the case of an accident, the injured person’s health insurance company may refuse to pay the hospital bill on the grounds that another party or insurance company (i.e. the other driver’s car insurance) ought to be paying the medical bills. That’s if the injured person even has medical insurance that they believed would cover their situation. Once the injured person is stable and healthcare providers no longer have a legal requirement to treat them, they may refuse to continue to provide any medical care without a guarantee of payment.

This is where a letter of protection (sometimes called a LOP) can help them. A personal injury attorney working on the injured person’s claim can write a letter to the healthcare provider explaining the situation and promising that the provider will be paid out of the settlement.

A typical letter of protection would begin with language like: Our office represents Jane Doe, who was injured in an incident on [date], in regard to her claim for damages resulting from this incident. We request that you agree to satisfy your fees for services rendered out of any proceeds paid in relation to this claim…

The provider may then agree to defer the billing until a settlement or award is paid. In a sense, the injured person is being treated “on credit” until then. They submit their bills to the attorney’s office so that the attorney can create a record of expenses for the damages claim.

Benefits and Disadvantages of the Letter of Protection

An LOP has immediate benefits for an injured person, especially one who has poor health insurance or none at all. Healthcare providers who accept the LOP will delay billing and collection efforts. This allows the patient to undergo treatment without immediate financial pressure, harassment from debt collectors, or concern for their credit rating.

The LOP also has certain advantages for healthcare providers. The probability of an insurance settlement is a far better offer than they can otherwise expect from most individuals, especially those who are uninsured or underinsured.

This leads to one disadvantage of an LOP—insurance company disputes over the size of the medical bills. Health insurance companies generally have negotiated agreements to pay providers only part of the full listed price for a medical service. Because providers often don’t get paid full price for their services from insurance companies, they have an incentive to seek “deep pockets” and charge full price to patients that are expecting a settlement or jury award. Settlement negotiations and payouts can be slowed down as the insurance company disputes what was “reasonable and necessary” in the treatment and whether it was billed at the same rate as other treatments.

Another disadvantage is that the LOP relies on the settlement itself. If the injured person does not receive a settlement or receives only a small settlement offer from the insurance company, the injured person is still personally liable for the medical expenses.  It’s the job of insurance companies to make sure that payouts are as small as possible or even to avoid paying out, and so this risk is real.  

Under Texas law, a plaintiff in a personal injury case is only entitled to all of their damages if they were not at fault in the incident. If a court finds that they were a percentage at fault, their damage claim will be reduced by that percentage. And if they were more than 50% at fault, they cannot recover anything.

Since insurance companies handle most personal injury claims, the initial fault determinations are made by insurance adjusters, using the evidence from the site and claim reports. The report may place undue fault on the party making a claim in order to save the company money. An initial settlement offer is often far too low to cover the claimant’s needs, and if the claimant accepts it, they will remain on the hook for past and future medical bills.

An experienced personal injury attorney can defend a claimant’s rights and work to prevent this situation from happening. They can push back on the insurance report and negotiate a better settlement—and if necessary, they can take it to court. An attorney can also help negotiate with providers to reduce medical bills in the settlement.

How We Can Help

Outcomes can differ depending on the type of injury, the type of insurance companies involved, the amount of insurance coverage the party at fault maintains, and the context of the incident. The Crash Angels at Pelaez Law Firm handle personal injury cases every day, and we understand the needs of clients in differing situations, such as:

•         Auto accidents
•         Truck Accidents
•         Defective drug injuries
•         Birth injuries
•         Dog attacks
•         Slip and fall injuries

If you think you may have a case in Texas, call us today at 210-801-9314 to schedule your free consultation in our San Antonio offices. 

According to Forbes magazine, 6,000 Americans were injured and 23 died from defective products in 2021. If you have an injury you believe or think may have been caused by a faulty product, Texas law may offer options to recover for your injuries and lost wages. However, it is crucial to speak to Texas product liability attorneys about any claim you may have. They are familiar with the possibilities and roadblocks in the law, and they can help you defend your rights.

Preserving Your Evidence

After an injury involving a product, you will need to gather evidence and information, just as you would after a car accident.

Take photos of the injury, the accident site and damaged property (if any), and the product as it appears immediately afterward.

Get a medical exam as soon as possible. Even if you do not think you were seriously hurt, some accidents—especially falls and blows to the head—can produce serious or even deadly effects with delayed onsets. In any case, it is vital for a medical professional to document your physical condition.

Keep the product or its remains as safely as possible. Be sure to retain any receipts, invoices, or other documentation about the product’s purchase, as well as any packaging or included leaflets. Any documents or communications you received from the seller may also be of interest to an attorney.

Product Liability in Texas

A product liability attorney will want to speak to you about the circumstances of the injury and the product’s use. Once they understand why and how the product caused the injury, they can determine what legal grounds you have for a claim, if any.

A claimant can sue the manufacturer and—under some circumstances—the seller of the product. In Texas, a seller can only be liable if they got involved with the product in specific ways, including installation, modification, or a harmful misrepresentation about its use. See Tex. Civ. Prac. & Rem. Code § 82.003.

Plaintiffs sue for product-related injuries on one or more of these grounds:

• Negligence—the defendant was negligent in their duty of care while manufacturing or selling the product, and that negligence caused injury.
• Strict liability—under Texas state law, the defendant is responsible for the product’s failure even if they were not negligent.
• Breach of express or implied warranty—the defendant asserted the product was fit for a certain use, and it was not.
• Misrepresentation.

In product liability cases, claimants allege that the products failed in one of three ways.

• Manufacturing defects—the products failed because they were poorly fabricated
• Design defects—the products failed due to a design that could not have worked as it was supposed to
• Packaging defects—the products did not carry a warning for users about the risks of foreseeable use

Texas law offers manufacturers defenses to these claims. If a consumer product was “inherently unsafe” in some way—such as alcohol, tobacco, or oysters—consumers cannot sue for foreseeable mishaps from its use unless they allege some kind of manufacturing defect or breach of warranty. See § 82.004. Moreover, a claimant cannot sue for a design defect unless they can show that the manufacturer could feasibly have used a safer alternative design that would have prevented their injury. (This does not apply to drugs or medical devices.) See § 82.005.

A claimant has up to 15 years after the date of sale to bring a product liability case, unless the product’s warranty provided a longer period. See § 16.012. If a claimant only became sick from the product’s use after the 15 years passed, they may also be able to sue. However, speaking to an attorney as soon as possible is essential.

The Recovery Process

Someone who has suffered a product-related injury may be entitled to recover:

• Medical expenses
• Property losses
• Lost wages or income
• Expenses due to short- or long-term disability

Despite jokes about plaintiffs’ lawyers, no one really wants to go to trial. Most claimants prefer to settle with the parties that caused their injuries so that they can receive the resources they need. After reviewing the evidence and the law, a personal injury attorney will notify the responsible parties of their claim and the possibility of a lawsuit. Once a manufacturer or seller recognizes their liability, they may decide to settle quickly as well. Unfortunately, it may be necessary to file a lawsuit. That pressure itself may lead companies to settle before trial.

After a widely marketed product fails, there may be many claimants statewide or nationwide. When this happens, the multi-district litigation (MDL) process can be used to consolidate court proceedings. Individual lawsuits join together in an MDL to expedite the fact-finding process, share deadlines, and—hopefully—participate in a settlement that will make it unnecessary to go to court. Class action lawsuits involve a class of plaintiffs—which may be anyone who bought a product—but unlike an MDL, there is only one lawsuit in a class action.

Moving Forward with Your Claim

The Crash Angels at the Pelaez Law Firm offer strong, compassionate representation for injured parties. If you believe you may have been injured by a defective product, drug, or medical device in Texas, contact us today at 210-801-9314 to schedule your free consultation in San Antonio.

According to the National Floor Safety Institute, falls are among the leading causes of emergency room visits in the US. Since falls are so hazardous and cause serious injuries, claims and lawsuits arising from slipping and falling are common. A slip-and-fall case is a type of premises liability claim—that is, a personal injury claim arising because of an injury on someone else’s property.

However, when the property is owned, rented, or controlled by a government (or quasi-government) body, claiming damages can become more complicated. Under the doctrine of sovereign immunity, people have no right to sue the government unless the government specifically allows them to do so. Today, the state and federal governments both allow personal injury claims. But they limit their own liability, and unless the claims are filed following a very specific process, a person could lose their right to sue.

It may not always be obvious if you are on property under government management or control. Government properties can include:

• Hospitals
• Courthouses
• Agency offices
• City and town halls
• Parks and recreation areas
• Affordable Housing apartments

If you think your injury took place on government property, it’s vital to act fast and consult a Texas personal injury attorney with knowledge and experience in this type of cases. You will have a much shorter window of time to file a suit, and your claims process will be very different. The next steps will depend on whether the property belongs to the local, state, or federal government.

Claims Against State and Local Government in Texas

How State Liability Works

The Texas Tort Claims Act (TTCA) provides that individuals can sue a governmental unit for “personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” See Tex. Civ. Prac. & Rem. Code § 101.021. This provision allows the state government to be sued for premises liability claims, including slip-and-fall cases.

Nonetheless, the government has the power to limit its liability, so it has set the terms for how someone can claim damages for an injury on its premises. “[If] a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.” See § 101.022.

What does this mean? A “premise defect” is something wrong with the property—a hazard on the land or building itself. A “licensee” is someone who has been allowed to enter onto property without any expectation of commercial benefit for the property owner, such as a guest.

A property holder has a certain duty of care to a licensee. If—

• There is a dangerous condition on the property, posing an unreasonable risk of harm
• The property holder has actual knowledge of the condition
• The licensee does not have any knowledge of the condition

—they must warn licensees or make the condition safe. When they do not do so, and a licensee sustains injuries from the dangerous condition, they may be liable. But this is often not easy to prove. Moreover, there are laws that insulate the government from liability for injuries arising from recreational uses and other special circumstances.

Texas law also limits the maximum damages available in a personal injury case against a government body, depending on which type of governmental unit was liable. The state of Texas or a Texas municipality may be liable for up to $250,000 for each person and $500,000 “for each single occurrence for bodily injury or death.” A unit of local government has lower damage caps—$100,000 and $300,000, respectively. See § 101.023.

How Claims Work

In order to preserve the right to file a lawsuit against the state of Texas, a claimant must file a notice of claim within six months of the incident leading to the injury. This is much shorter than the statute of limitations would be between private parties, which is two years. A city, county, or town may pass ordinances requiring an even shorter time limit. The City of San Antonio requires notice within 90 days. This gives the city, town, or state a chance to settle the claim.

Claims Against the Federal Government

An injury in a federal courthouse or on federal land may involve a claim against the US government. The Federal Tort Claims Act (FTCA) sets the requirements for filing a claim against a federal governmental unit.

This requires filing a claim within two years against the agency or government body in control of the property where the injury occurred. If the government denies the claim or does not respond to it within six months, then the claimant can only file suit within the next six months. The federal government does not have specific limits on the damages it can be liable for, but it is not possible to seek punitive damages against it.

Again, there are limitations on the government’s liability for specific uses of their property, including recreational uses. An experienced personal injury attorney will be able to determine whether an injury gives rise to a claim.

Seeking Help for Your Injury

The Crash Angels at the Pelaez Law Firm deliver have the knowledge and experience to handle slip-and-fall cases and other personal injuries in Texas. Call our San Antonio offices today at 210-801-9314 to schedule a free initial consultation about your case.

We call Uber or Lyft to avoid accidents—to navigate to places we don’t know, to drive for us when we can’t. But what happens when a rideshare ends in an accident anyway?

In Texas, the law requires rideshare companies to maintain insurance coverage of up to $1 million for rideshare drivers at work. This covers passengers using their service. It may also cover the occupants of other vehicles in an accident, but this depends on the circumstances.

Texas Law on Rideshare Liability

Texas law defines businesses like Uber and Lyft as transportation network companies, or TNCs. State law requires TNC drivers to carry different levels of insurance depending on what phase of work they are in. The companies typically provide this insurance while the driver is on the job.

When a rideshare driver is logged in and accepting rides but not actively conducting a ride, they must carry insurance with the following liability policy limits:

• “$50,000 for bodily injury to or death for each person in an incident
• “$100,000 for bodily injury to or death of a person per incident; and
• “$25,000 for damage to or destruction of property of others in an incident.”

See Tex. Ins. Code § 1954.052. Drivers may also carry personal injury protection (PIP) or medical payments (MedPay) coverage, which allow compensation without first determining fault.

When conducting a prearranged ride, rideshare drivers must carry “coverage with a total aggregate limit of liability of $1 million.” See § 1954.053.

If the driver is not logged in and they are only operating their car for personal reasons, their personal auto insurance applies. Texas law requires every driver to carry a minimum of “30/60/25”:

• “$30,000 for bodily injury to or death of one person in one collision;
• “$60,000 for bodily injury to or death of two or more persons in one collision …
• “$25,000 for damage to or destruction of property of others in one collision.”

See § 601.072.

When You Encounter a Rideshare Accident

As the Driver of Another Car

Any auto accident in Texas comes with specific responsibilities for drivers. A driver needs to stop the car—after pulling out of the flow of traffic, if possible—stay there and call 911. The law requires an immediate report for any collision involving injury, death, or enough vehicle damage to make driving impossible. See Tex. Transp. Code § 550.026.

The driver must also provide their name, address, registration number, and insurance information to the other vehicle’s occupants. See § 550.023.

When necessary, they must also help anyone injured in the other vehicle, providing “reasonable assistance” and getting transportation to medical treatment if requested. Requesting medical aid from 911 is wise in any case, as many common auto accident injuries do not cause immediate pain or symptoms. Even serious injuries such as TBIs can fly under the radar for a while. Whatever you may feel, get a medical exam as soon as possible after the accident.

The Texas Department of Insurance offers further tips for managing the aftermath of an accident:

• Preserve evidence—take pictures of the accident site and the vehicles involved, if possible.
• Write down important details, such as the exact time and the weather information.
• Talk to any witnesses available and get their contact information.
• Keep any medical bills or documents you receive after your initial exam.

Your own auto insurance company will typically require an accident report within a day or so—check your policy.

Whether the rideshare driver’s corporate policy applies and what limits it carries will depend on how they were using the car. Were they carrying a passenger? Were they accepting rides but not on one? Or were they on personal business? Coverage depends on the answer to this question.

Rideshare companies request that you report accidents to them, but be careful what you say. They will be looking for ways to claim that you did not really suffer the injuries or other damages you have reported and will be looking for inconsistent statements you may make. It is best to speak to a personal injury attorney before you make any statements to a rideshare company or an insurance adjuster from another company.

As a Passenger

When riding in an Uber or Lyft, you should be covered by the company’s $1 million policy. This is a sizeable coverage limit if only one or two people are injured. Still, medical costs can skyrocket when many injuries are involved, and $1 million may be exhausted more quickly than it would seem. If you have auto insurance of your own with PIP or MedPay coverage, you may have limited coverage even as a passenger in someone else’s car.

After an accident in a rideshare vehicle, a passenger—if able to—should take many of the same steps a driver should. The passenger in a rideshare will need to seek medical aid, get information from other parties, take pictures and make sure the police show up to take a report.

Again, rideshare companies will want to speak to you, but it is best to consult an attorney like the Crash Angels of Pelaez Law Firm first. The insurance policy may be large, but the “deep pockets” of the company also pay for adjusters and defense counsel who will attempt to deny or minimize your claim as much as possible.

How We Can Help

The Crash Angels of the Pelaez Law Firm are experienced personal injury attorneys who handle Texas car accidents. If you have been in a rideshare accident in the San Antonio area, call us today at 210-801-9314 to schedule your free case review.

I am thrilled to share some exciting news with you! Recently, I had the incredible opportunity to be featured on “The Art of Improvement” podcast, hosted by the talented Karen Clauss of iHeartMedia. It was an engaging and insightful conversation where Karen delved into various aspects of my journey, my firms, and the collaborative efforts with my amazing partner in law, Juanita Pelaez.

During the interview, Karen Clauss asked thought-provoking questions that allowed me to share insights into my background, the vision behind my firms, and the integral role my partner plays in our success story. We discussed a range of topics, from personal experiences to professional milestones, offering a glimpse into the essence of our work and the passion that drives us forward.

I invite you to join me in this enriching conversation by tuning in to “The Art of Improvement” podcast. Whether you’re an entrepreneur, business enthusiast, or simply someone seeking inspiration, this episode provides valuable insights and lessons learned on the journey to improvement and success.

I want to extend my gratitude to Karen Clauss for being an exceptional host and creating a platform where we can share stories of growth, resilience, and achievement. It’s a privilege to be part of “The Art of Improvement” podcast, and I hope you find our discussion as inspiring as I did.

Feel free to share your thoughts after listening, and don’t hesitate to reach out if you have any questions or reflections to share. Thank you for being a part of my network and for your continuous support!

Listen here:

What Should Patients in Texas Know about Pursuing Defective Drug Claims?

We can’t test our own pharmaceuticals; we have to rely on doctors, manufacturers, and regulations. In most cases, the testing and regulatory process produces safe medications or allows us to judge their risks. But some companies cover up drug risks. Other dangers are not discovered until a drug has been in use for years. When patients discover that they have been using a medication or medical device that makes them sick, they need options for recovery and for justice.

In recent years, Texas state and federal courts have seen lawsuits regarding many pharmaceuticals and medical devices, including:

• Avandia, a diabetes medication found to increase the risk of heart attack
• Obtryx, a type of pelvic mesh implant that led to further complications and disabilities
• Risperdal, an antipsychotic with many severe side effects
• Vioxx, a pain reliever associated with serious cardiac disorders
• Exactech, a medical device used mainly in hip and knee replacements, which have corroded and caused pain and other severe side effects

Often just searching for the name of a drug or medical devices will give you results about lawsuits. But every injury has a different impact, and every state has different laws.. How do you know what steps to take?

Texas Law on Defective Pharmaceuticals

Who Can Sue–and Who Can They Sue?

Someone who was injured by defective drugs or medical devices is likely to file a claim against the manufacturer. Depending on the circumstances, they may also bring a claim against the seller of the drugs or device, or the doctor who prescribed them.

Claims regarding defective drug manufacturing or medical devices fall under products liability law for faulty products in general, with certain exceptions. In Texas, a manufacturer can be found liable for products that are unreasonably dangerous to the public, except for those products widely known to be “inherently unsafe.” There are three types of general product liability claims:

• A poorly designed product that could never have functioned properly can give rise to a “design defect” claim.
• A product that fails due to an error in the factory leads to a “manufacturing defect” claim.
• If a product is improperly labeled and does not advise about the risks of use, the manufacturer is liable for “failure to warn.”

Drug companies have several legal defenses. A drug company will not be found liable if:

• The drug was accompanied by a warning provided or approved by the FDA. But if the company did not follow an FDA order to withdraw the product or bribed officials, this defense will not stand.
• The drug was not used for its FDA-approved purpose when it caused the claimant’s injury. However, off-label usage of pharmaceuticals for various new purposes is common, and companies may even promote it. The claimant can overcome this defense by showing that the company approved or recommended the off-label use.
• The doctor who prescribed the drug was adequately warned about its risks. This is called the “learned intermediary rule,” but it can’t apply if the company withheld relevant information from physicians.
• The drug was damaged or modified after it left the manufacturer’s control.

How Long Do You Have to Sue?

This can be complex. In Texas, someone who has been injured by defective drugs or medical devices may need to file a lawsuit within two years of their injury or, in some instances, the date they knew or should have known about it. Alternatively, they may have as long as 15 years, depending on the legal claims they have to advance. Injured minors may be able to count this period from their 18th birthday, but it is essential to consult an attorney about this as soon as possible since the law is complicated.

How Recovery Works

As in other personal injury suits, victims of defective drugs or medical devices need to recover their damages for:

• Medical bills, including expenses for transportation
• Lost income, wages, or earning opportunities
• Domestic care needs
• Short-term or long-term disabilities

An experienced products liability attorney will understand how to determine each client’s needs for recovery. Defective drug or medical device claims can be pursued through private settlements and lawsuits; they can also be addressed through mass torts such as class actions or multidistrict litigation (MDL).

Class Actions and Multidistrict Litigation

Class action lawsuits developed as a way for numerous individual plaintiffs to pursue claims against powerful companies. A class action generally has representative parties whose claims have to be “typical of the claims or defenses of the class.” Thus, class actions can be a good option for “typical claimants” with relatively low claims compared to the costs of a lawsuit. But there is little or no individual input possible for each claimant, as there may be hundreds or thousands.

Claimants may be able to pursue a lawsuit in an MDL instead. Unlike class actions, each plaintiff in an MDL has a separate lawsuit and attorney, but the lawsuits are part of a consolidated court process for similar claims against a corporate defendant. The MDL leads to several trials of “bellwether” cases, and their outcomes are intended to encourage the defendant towards a settlement for all claims, often including funds for future claimants. However, MDL claimants can also find they have relatively little control over the process.

A claimant can, of course, decide to pursue an individual lawsuit for a unique claim, such as a manufacturing defect resulting in drugs that only injured one person or a few people. Personal injury attorneys know how to examine each client’s situation and determine their best course of action.

If you have been injured by defective pharmaceuticals or medical devices in Texas, we want to talk to you. The Crash Angels at Pelaez Law Firm can provide you and your family with the assistance you need help you through this process and strong representation against the parties at fault. Contact us today at 210-801-9314 to schedule a free consultation in our San Antonio offices.

Expectant parents often say, “All we want is a healthy baby.” After all, isn’t that what it’s all about? But birth is the first time that a mother cannot protect her child or see what others are doing to them. A healthy baby can be injured by the carelessness of doctors, nurses, or midwives, sometimes for life.

Unfortunately, Texas law does not exactly put mothers and infants first. Medical malpractice laws can protect doctors rather than patients, and these claims are more likely to go to trial than other personal injury claims. But when you understand your baby’s condition and your family’s rights, a personal injury attorney can help you get the resolution you need.

Birth Injuries: What They Can Mean

Birth injuries, also known as birth traumas, happen more frequently in the US than many people realize. According to recent birth statistics, common birth traumas for infants include:

• Fractures
• Facial nerve injuries, occurring in “up to 10 per 1,000 live births,” often from forceps use
• Intracranial hemorrhages—bleeding inside the head, more likely to occur in vacuum-assisted deliveries or those involving forceps
• Brachial plexus injuries, damaging the nerves of the shoulder, arm, and hand
• Soft tissue injuries, including cuts to the infant, which may occur during C-sections

Minor birth injuries can heal relatively quickly. However, some can cause long-term or permanent disorders. There are several types of palsy—a weakness or paralysis of the nerves—that birth injuries can cause:

• Facial nerve palsy
• Erb’s palsy, affecting the arm and shoulder
• Klumpke’s palsy, affecting the hand and forearm
• Cerebral palsy, affecting the brain, which may come with epilepsy and intellectual disabilities

If a child is deprived of oxygen during the birth process, they may experience HIE (hypoxic ischemic encephalopathy), which can also trigger cerebral palsy, developmental delays, heart disorders, and other life-altering conditions.

Some of these, even HIE, may respond well to treatment. But who will pay for that treatment? And how long will it take? What if the child needs care or assistance for the rest of their life?

Malpractice Laws in Texas: What You Need to Know

Statutes of Limitations and Repose

Your child has at best 10 years to make a claim for their damages, counted from the day of the birth or the day that their negligent treatment was finished (if those were not on the same day). It may also be possible to count from the day that a hidden injury was detected. Minors under 12 technically have a right to file a medical malpractice claim until they are 14, but malpractice claims also have a 10-year limitation across the board.

If you, as the mother, were also injured during or because of the birth, you have two years from the date that your treatment was finished to bring your claim—unless you yourself were a minor under 12.

In any case, discussing your situation with an attorney as soon as possible is crucial. The statute of limitations can be a key issue, and the stakes are high.

Your Child’s Rights

Your child has the right to recover their economic damages, or special damages, without any legal limit on their claim. These damages can include:

• Medical expenses (bills for past and future care)
• Personal care expenses for the child
• Disability accommodations
• Loss of future earnings if the disability is permanent

As a practical matter, this damage award is usually limited by the insurance coverage of the doctors or healthcare institutions involved. Additionally, Texas law limits non-economic damages, which includes compensation for pain and suffering, to $250,000 per claimant, although this may increase if there are multiple defendants.

A child’s parent or other trusted family member can act as a “next friend” in the courts and make legal claims on their behalf. A settlement on a minor’s behalf must be approved by a judge, with safeguards to ensure that the money can only be paid to or for the child.

How to Protect Yourself and Your Child

Some disorders caused by birth injuries may not be apparent for the first few months of a child’s life. If you think your older infant or toddler may have suffered a birth injury, watch carefully for certain symptoms, including:

• Apparent problems with sight or hearing
• Tremors or weakness
• Stiffness (hypertonia)
• Slow or difficult speech progress
• Poor coordination, including difficulties using utensils
• Difficulty or inability to sit, stand, crawl, or walk
• Developmental delays or disorders
• Intellectual disabilities

Consult a pediatrician and explain the circumstances. These may be symptoms of cerebral palsy or another disorder caused during the birthing process.

Collect all your baby’s medical documentation. Collect your own medical records as well, including your prenatal care records and any other notes, bills, or receipts about your medical care while you were pregnant. Your attorney will need to see these.

The hospital’s defense attorneys are likely to use any missteps (claimed or genuine) in your prenatal care against you, as well as any preexisting conditions. Certain factors, such as maternal condition and the size of infants, are associated with an increased rate of birth injuries. It is important to exclude or account for these effects.

Finally, contact an experienced Texas birth injury attorney as soon as possible; it’s best to do so before you make any claims or give any statements. At Pelaez Law Firm, the Crash Angels can provide you and your family with strong, compassionate representation, shielding you from the pressures of the legal process. Contact our San Antonio office at 210-801-9314 to schedule a free consultation.

A car accident shakes you badly, even if it doesn’t seem to do much harm to your body. In fact, for the first hours or even the first few days after an accident, you won’t know how much you are hurt until you have a medical examination.

Sometimes, drivers without health insurance coverage want to delay medical treatment until they have received a payout for the accident. Not only is this dangerous, it won’t work. You can’t complete your claim until you’ve been examined.

Federal law requires most emergency rooms to take and stabilize patients regardless of whether they can pay. But after that, the trouble begins. Who pays the bills, and how?

Medical Billing After an Accident

To discuss this, let’s take the example of Alice, a fictional driver in Texas. Alice gets into an auto accident with another driver, Bob. An ambulance takes Alice to a hospital. As time goes on, she has worsening pain and undergoes more medical imaging and tests. She suffered mild injuries at the time, and now further injuries are becoming apparent.

PIP and MedPay

All auto policies in Texas have personal injury protection (PIP) coverage unless it’s specifically declined. This no-fault coverage pays for medical bills up to the policy limit. It can also offer partial coverage for lost wages and home health care costs. Medical payments insurance (MedPay) is another auto policy option that covers medical expenses. But the typical coverage limits for both PIP and MedPay often do not meet the total costs of a serious injury.

If Alice has coverage from either of these, she can submit claims to the insurance company based on her medical bills without waiting on a determination of fault and a settlement. Some auto insurance companies may pay health care providers directly, but usually, the patient must pay first and be reimbursed.

Health Insurance

Under ordinary health insurance procedures, the patient covers a copay or some percentage of the bill, and insurance covers the rest. Unfortunately, healthcare providers and hospitals may refuse to bill a health insurance company after an auto accident. This is because health insurance companies themselves often refuse to pay the medical bills from an accident.

Instead, they want the at-fault driver’s insurance to pay! On paper, this may sound fair, but Alice needs help now.

If Alice works with a personal injury attorney, that attorney can draft a letter of protection (or LOP) to give to doctors and hospitals. The letter explains the situation and assures the healthcare provider that they will be paid from Alice’s future settlement or verdict for damages.

Settlement and Liens

Alice has a lot of medical expenses and property damage, so she needs to pursue a claim against the insurance company of the other driver, Bob. But Alice did receive $2,500 in coverage through MedPay from her own auto insurance policy, which is provided by Company A.

Company A now has the right to seek reimbursement for that $2,500 from Bob, just as Alice would have had if she had paid it herself. This is called subrogation. Company A may pursue that claim directly with Bob’s insurance, Company B, but it may also decide to place a lien on Alice’s future settlement.

Liens ensure that when a settlement comes through, the lienholders will automatically be paid. In theory, this should be just—giving the parties back what they paid and no more—but as it happens, it may be anything but.

Alice’s health insurer—Company C—also has the right to subrogation for any medical expenses it paid, and it too can place a lien on Alice’s settlement. What’s more, without an LOP, a hospital can place a lien for emergency services as well.

Before offering a settlement, Company B will investigate the accident. Under Texas law, a plaintiff’s damage award in a personal injury lawsuit is reduced by the percentage of fault that a court determines they shared in the accident. If the court finds that a plaintiff is 50% or more at fault, then they cannot recover damages at all. Most personal injury claims don’t go to court; they are handled through insurance. The insurance company’s investigation report assigns percentages of fault to the parties, and that report is their basis for how much they offer as a settlement—if anything.

As Bob’s insurer, Company B has an incentive to find fault with Alice as much as possible so that they can offer the lowest possible settlement amount. They know that Alice is under financial pressure to find a quick solution; she is still recovering and needs help. But with liens on her settlement, she may not see any of that money herself. What can she do?

How We Can Help

Personal injury attorneys manage these issues every day. The Pelaez Law Firm Crash Angels know how to deal with insurance companies, and they are used to fighting erroneous reports and lowball settlement offers. They can also help negotiate large medical bills for liens on personal injury settlements.

This is a complicated area of law. Regulations and outcomes can differ depending on what kinds of insurance are involved.

Let us help you find the best way forward. Talk to us if you have had a Texas auto accident or truck collision. Whether you were in a car, on a motorcycle, riding a bicycle, or going on foot, we want to hear from you. Call us at 210-801-9314 to set up a free consultation in our San Antonio offices.