legal 1/14/2020 29.) Oil & Gas Drilling Injuries, Workers' Comp, Wrongful death of Elderly - gtg

legal 1/14/2020 29.) Oil & Gas Drilling Injuries, Workers’ Comp, Wrongful death of Elderly – gtg

Posted on January 14, 2020, 10:18 pm By David Strebler

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No Matter who is Holding the Money, They don’t Want You to Have it

In all non-subscriber and third party oil and gas rig or pipeline injury claims, defendants either have large insurance companies with lots of good attorneys that stand in your way or are “self-insured,” or (worse) uninsured. And all at the defendant’s side do everything they can, legally or (in some cases) illegally to avoid paying your rightful damages. And it’s also possible that one of the corporate petroleum giants is drawn into your claim in which case, you’ve bitten off way more than you can chew if you are a petroleum production worker who decides to seek damages from them by yourself, or with an under-experienced oilfield injury lawyer.

Non-subscribers’ insurance companies, regardless of whether they’re big corporate giants, or the smaller mutual companies (which are owned by their policyholders rather than stockholders) have one thing in common. Both of these opponents have attorneys either on staff or permanent retainers who are excellent defenders of their oil industry clients against injured claimants like you who try to get “their” money. They are always offensive and aggressive against you. But that doesn’t mean you can’t win against these well-armed lawyers, their insurance companies or corporate drilling companies. But you must have a rightful cause for a claim, airtight evidence, and an experienced personal injury attorney to represent you; one who knows every trick they pull, and the best way to overcome each one.

But as bad as the insurance companies can be in an oil patch injury claim or lawsuit, some legal guidelines govern their behavior when they oppose you. However, on the other hand, self-insured (or non-insured) contractors and subcontractors who are liable for your injuries are not bound by any codes of conduct at all. This means they can, and do, use every underhanded trick they can think of to wiggle out of all employer injury damage claims and lawsuits. And they are not above bending or breaking legal ethics, or even the law, to avoid paying those rightful damages.

In these cases, you deal directly with an officer if the self-insured drilling or pipeline company is a small one. This person’s salary comes directly out of company profits. Your injury claim will also come out company funds. Do you see the money trail? It comes from the same well. By compensating you, your employer, or that third-party, literally takes money out his own pocket. A sneaky, self-insured company officer uses any and all means to oppose your claim in order to protect his company’s, and personal, assets.

Self-insured drilling contractors and subcontractors have been found to deliberately destroy evidence, bribe or intimidate witnesses, and even plaintiffs and their families. Sometimes those threats can be physical. And once in a while, they make good on such physical threats. This is why every time we represent a client against a self-insured company; we quickly file motions in court to prevent anyone within the self-insured company from behaving improperly against our clients. Sometimes these motions include clear demands that they make no attempt to communicate with our clients, or their families, in any way without one of our Texas oilfield injury attorneys present.

Put our years of experience to work for you. If you want to know what your rights are, how to proceed with your claim and the level of compensatory damages you can win from your oilfield injuries, we can answer your questions. Call our Law Firm now at 1(800) 862-1260 (toll-free) for a free consultation and find out how we can help you.

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y caused your serious work accident injury victimize you and your family once again. We’ll help you fight for what is rightfully yours.

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Starting at the Beginning: Determining the Employer’s Workers’ Compensation Status

We can thank our lawmakers (and the insurance lobby who pays for their lunches and nice vacations) for today’s difficulty in understanding workers’ compensation laws. No employer is required by the state of Texas to purchase workers’ comp insurance which is why roughly one in two employers do. So, workers’ comp injury cases are divided into two separate types that require various methods and strategies to resolve. Employers who carry worker’s comp are known as “subscribers.” Those who don’t are “non-subscribers.” Determining if your employer is the former or the latter must first be made before moving forward with your injury-related reimbursement insurance claim or civil case.

Workers’ comp benefits are paid out of a “pool” of funds. This pool is replenished by private insurance carriers that participate in the state worker insurance program. It pays injury claims while it protects subscriber-employers from lawsuits and generally disregards the legal rights of employees. Whether the employer is negligent does not figure into the equation. Workers’ comp reimbursement amounts are limited or “capped.” So when an employee is seriously hurt, the monetary benefits available to them often fall way short of what is actually needed to return to physical and fiscal health. Now workers’ comp does provide some compensation to employees who are injured on the job site. But it works best if the employee is not seriously injured and can return to work relatively quickly. It’s basically “no-fault” insurance because those covered by workers’ comp are reimbursed, no matter how the accident occurred or whose fault it was. And subscribing employers cannot be sued by their employees for the more appropriate amount of fair damage compensation. You’ll learn why that is in a bit.

But on the other hand, in order to receive restitution from a non-subscriber to workers’ comp, an injury victim must first file a claim with the employer’s private liability insurance company, or a lawsuit in civil court if the employer’s insurance company resists payment, or is not covered by any insurance at all. Fortunately, for the injured party, the prerequisites that have been established to encourage companies to subscribe to “no-fault” workers’ comp insurance are not as stringent as they once were. And these same lower standards of proving subscriber negligence, also apply against a non-subscriber in a civil case. So it’s not as difficult to prove simple liability against a non-subscribing employer for on-the-job accidents due to these relaxed standards. It seems straightforward but in truth, things are seldom as simple as they seem.

Since workers’ comp is cheaper than traditional employer liability insurance, one would assume all companies would be wise and purchase workers’ comp instead. But there’s no accounting for those who live dangerously (and pay higher rates) by not subscribing to workers’ comp because it is comparatively cheaper than private liability coverage. So many employers still choose to roll the dice and take the risk of being a non-subscriber. Then, when the odds catch up with them, they try to avoid a lawsuit and lie to you by claiming that they have workers’ comp. These employers may even try to quickly pay you the amount you would normally receive from workers’ comp, then ask you to sign what they may represent as a “standard workers’ comp release” in order to further their deception and get off the hook for the actual damages you are owed. But we don’t fall for this rather consistent employer trick. Neither should you.

This is one of many examples of how you benefit from an experienced Texas workman’s comp lawyer to get to the bottom of your company’s workers’ comp status, so you know what legal avenues are available to you. Once that is done, we can then move forward together to the actual work of securing your injury compensation and protecting your family.

An experienced workman’s comp lawyer with our Law Firm helps injured Texas employees deal with their challenging work-injury cases. We have spent decades building and utilizing the expertise required to help injured workers just like you to receive the compensation they deserve for their medical bills, lost wages, pain, suffering, and disability through effective negotiation or successful litigation if the latter becomes necessary.

Put our experience to work for you. If you want to know your rights, how to proceed with your claim and how much compensation you can reasonably expect to secure, then we can answer your questions. Call our Law Firm now at 1(800) 862-1260 (toll-free)for a free consultation and find out how we can help you.

You’ve already been hurt. Don’t let those who negligently caused your serious work accident injury victimize you and your family once again. We’ll help you fight for what is rightfully yours.

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Third-Party Liability and the Single Exception When Workers Comp Subscribers can be Sued for Negligence

Subscribers to workers’ comp insurance are very pleased to be getting inexpensive pool coverage that produces lower benefit payments to seriously injured workers. But they’re absolutely tickled pink to also be virtually immune to civil negligence lawsuits. Unless the employer has committed gross negligence (also called willful or malicious negligence) resulting in wrongful death, they cannot be sued if one of their employees is injured on the job or has been killed at work. And evidence of that negligence must be clearly overwhelming in order for this exception to apply. This means that the insurance underwriter the state has chosen to pay traditional workers comp claim is also on the hook for damages that this employer who is guilty of gross negligence is liable for. Do you think they want to pay six figures worth of damages they “assumed” would be no more than low-five figures?

In a perfect and fair world, insurance providers would be concerned with tending to the legitimate needs of injured parties, and victims (or their families) would receive fair payment for all medical bills, lost salary, pain, suffering, disability, and death. But the world is neither fair nor perfect. Insurance companies are in business first, to generate profits: not help people. And those who underwrite the workers’ comp pool are no exception. All insurance companies try to avoid fairly compensating injured employees every year throughout the Lone Star State. Those who participate in the state’s insurance pool are just doing it with the help of the legislature.

But aside from subscriber gross negligence in causing wrongful death, there is another weapon in your fight to receive just compensation for your serious injuries outside of (or in addition to) workers’ comp which can impact the final compensation amount.

In many cases, someone besides the employer may have done something negligent to cause a serious workplace injury. If a faulty piece of machinery caused your injury, the manufacturer may be held accountable through a defective product lawsuit. If the owner of the property did not provide safe working conditions, then he or she could be held accountable. If another employee or a visiting contractor or one of the contractor’s employees negligently caused the injury, then they could be held accountable. All of these are general examples of “third party liability.” And you can sue any responsible third party or parties, but not your subscribing employer. Experience and the ability to properly investigate not only the accident scene but the roles these third parties played in the accident are required in order to properly identify all of the parties responsible and make them pay for the injuries they cause. A skillful Texas workmen’s compensation attorney with our Law Firm can devise a plan of attack for workplace injury cases that offer the best opportunity to secure compensation in a complex Texas work accident claim like this.

You’ve already been hurt. Don’t let those who negligently caused your serious work accident injury victimize you and your family once again. We’ll help you fight for what is rightfully yours.

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Success Against Non-Subscribing Defendants and Third-Parties isn’t Easy Either

We’ve already mentioned how it comes as no surprise that many employers neglect to purchase workers’ comp or any other form of insurance. If you are to receive the compensation you deserve from non-subscribing employers, you really can’t do it right without the assistance of a skilled Texas work injury attorney to file an insurance claim lawsuit and stubbornly see it through to the very end in order to receive the fair compensation you deserve as a result of this employer’s negligence.

In order to punish non-subscribing employers for not participating in this state-run program, Texas workers comp laws enable the victim to secure much greater damages than if the employer had purchased workers comp insurance. And as we have already said, the workplace accident victim must merely prove standard negligence, which means the employer only committed a sole error or momentary inability to maintain safety. On the surface of it, that’s enough to win. But as you can guess, the laws governing these principles are extremely intricate and a crafty accident lawyer’s assistance is of value during this challenging legal process.

It begins when the victim, also known as the plaintiff, files a claim with the employer, notifying him or her of the injury and the amount of money the victim expects as fair repayment. The employer can agree. But that rarely happens. Most of the time the employer has some sort of insurance of surety bond to cover these matters. If they have insurance, they just hand this matter over to their carrier. Then you and your attorney try to negotiate a settlement, although the insurance company will probably initially dispute your allegations outright just to see how serious you are.

But with a strong workman’s comp attorney and equally strong case, negotiations can progress in-good-faith, usually because your attorney’s very strong case shows you mean business. Then the matter is often settled, you get a fair compensation check and everyone returns to their regular lives. But often, work-related injury cases are contested and the plaintiff must file a lawsuit to win the compensation. As the injured party, the plaintiff holds the burden for proving that the employer’s negligence caused the injury, resulting in those high medical bills, lost salary, pain, and suffering. Fortunately, if the injured victims can prove simple negligence, winning that lawsuit is much easier.

You’ve already been hurt. Don’t let those who negligently caused your serious work accident injury victimize you and your family once again. We’ll help you fight for what is rightfully yours.

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Defendants Try to Turn the Tables of Liability Back on You or Your Loved One: Sometimes in Ludicrous Ways

If your employer is a workers’ comp insurance non-subscriber, then he or she isn’t likely to suddenly change his or her nature and agree to pay you out of the goodness of their heart or because it’s the right thing to do. Our experience in these matters has revealed that most non-subscribers try to use a couple of typical defenses to avoid paying injured employees the restitution they deserve.

The only reasonable defense afforded non-subscribers after an employee suffers a serious injury is to claim the worker caused his or her own injuries or, in legal terms is the sole proximate cause of the harm that befell them. In order to invoke this defense, non-subscribing employers will literally add insult to your injuries and soil your reputation by proving you were a negligent employee and caused your own injuries. They’ll call your general character in-question in order to convince a jury that you are such a reprehensible person that you don’t deserve a penny from them. They try in any way they can to hold you alone responsible for your injuries, or infer that you’re a lowlife who is just out to get your employer.

While your employer may have been too cheap to buy workers’ comp coverage, you certainly won’t be surprised that he or she will think nothing of paying tens of thousands of dollars to an experienced and shrewd lawyer who knows how to make victims appear negligent for their own injuries. You need your own cunning Texas Texas workmans’ compensation lawyer to place fault back where it truly belongs, the negligent employer.

The Other Popular Defense Tactic: Claiming You are a Contractor, Not an Employee

The sole proximate cause defense is not the only way that non-subscribers have to deflect liability after a serious injury suffered by an employee. But once that one has failed, many clever employers try to avoiding liability by trying to distance themselves from you as an employee, and their responsibility to fairly compensate you. Some even begin building that paper trail to prove their argument from the first day you show up for work.

Texas Employers are not responsible for what happens to contractors when an accident occurs at their place of business. So many companies will claim to hire their employees as contractors. By calling you a contractor, your employer tries to deny that an employer-employee relationship existed between you and the company. Then their attorneys or insurance companies will tell you that you don’t have a legal claim for damages. Their “pretzel logic” logic is simple: why should they be responsible for an injury to someone who was never actually an employee to begin with? It’s a popular dodge. But many times the facts prove otherwise.

For a while many employers try to claim they hire their employees as contractors or as temp workers through a third-party, deep-down the employer knows an actual employer-employee relationship exists in many of these cases, and the injured worker deserves compensation from them. So don’t be misled by this shady ploy. Even though your employer claims you are a contractor, you are likely still considered an employee in the eyes of the law and are entitled to recover compensation for injuries suffered on the job.

Here are some of the ways in which a skillful and well-seasoned Texas workmans’ compensation lawyer proves the employer-employee relationship by meeting at least one of the following standards:

Social security or taxes have been withheld from your paycheck by your employer.
The essential equipment for the job was supplied to you by your employer.
Your work has been regularly managed, overseen or inspected by your employer.
A specific work schedule has been set for the job by your employer. You are not free to come-and-go as you please.
Your employer requires you to complete a task or sign a document that limits your rights while working for the employer. The most common examples are taking a drug test or signing a document that states you comply with an employee handbook.
You have been employed for an undetermined period of time and not just for a single job.
You are paid by a salary or an hourly wage and not on a job-by-job basis.
In cases where a worker is “borrowed” from another company, or a third-party employment agency, the rules for determining the working relationship are related, but there can be some critical differences. Some of these conditions may include:

If the borrowing employer has the power to hire or fire a borrowed worker at any time, the worker is clearly an employee. Otherwise, the worker is a contractor.
Most of the time, if the borrowing employer is allowed to pick a particular worker, then the worker is an employee. If the agency that provides the worker is allowed to send any worker they choose, the worker is a contractor.
If the worker must provide them, that person is a contractor. If the employer provides them, the worker is an employee.
If the employment agency can substitute the borrowed worker for another at-will, the worker is a contractor. If the lending agency cannot, then the worker is an employee.
If the worker is borrowed indefinitely, then the worker is an employee. If the worker is borrowed for a specific project with a specific date of completion, the worker is a contractor.
If a worker is being borrowed or “leased” because of a skill that is unique or hard-to-find, then the worker is a contractor. But on the other hand, if an employer borrows a worker to fill a position that just about anyone can fill, then the worker is an employee.
If the borrowing employer agrees to pay the worker’s social security and income tax, then the worker is an employee. If the borrowing employer does not accept this responsibility, then the worker is a contractor.
Our Law Firm conducts a thorough investigation to demonstrate the existence of one (or more) of these standards to clearly prove your employer-employee relationship existed. We depose co-workers, review contracts and examine pay stubs to establish that you were in fact, an employee when you suffered your serious workplace injury.

A couple of other things that are important. If you were hired by an employment agency to work at an “employer’s” company and suffered a workplace-related accidental death, your attorney must determine if the employment agency has workers’ comp. If so, then you would file a workers’ comp wrongful death claim against the agency, or a non-subscriber civil suit if not. In either case, this would then make the company where you actually performed the work a third-party contributor to the accident. Also, if your employer loaned you out to another company that may have been run by a friend, and when the accident occurred at that company, the issue of workers’ comp subscription with your employer comes to mind and the company where you suffered your injury will likely be treated as a third-party defendant in any civil claim or suit.

Workers’ comp claims are less-than-adequate when major injuries are involved, including wrongful death. So the traditional way for an employee to recover fair damage compensation is to file a workers’ comp claim against the subscribing employer (assuming that employer subscribes) and then supplement the claim with the appropriate number of third party claims or lawsuits. And if no workers’ comp exists, it’s simply non-subscriber and third party actions across-the-board. Whatever route is taken, if any of the above scenarios exist, with an experienced attorney you can seek at least two sources of compensation: which makes the total amount collected a more just amount.

You’ve already been hurt. Don’t let those who negligently caused your serious work accident injury victimize you and your family once again. We’ll help you fight for what is rightfully yours.

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Your Opposition is Indeed Dangerous Without an Experienced Local Workplace Injury Lawyer

In all non-subscriber and third party workplace injury claims, defendants can have large insurance companies and lots of attorneys to oppose you. Or your employer will be “self-insured” or uninsured. Regardless, all fight very hard, to avoid paying for your injuries.

Non-subscribers are represented by insurance companies who have attorneys either on-staff or on permanent retainer. And they are very skilled at defending insurance companies from people who try to sue them. Insurance companies are in the business of collecting high premiums, and then avoid paying claims. They are confrontational and intimidating from the start. But they don’t scare an experienced work accident attorney like those with our Law Firm who know every trick they pull, and how to effectively counter each one.

But self-insured employers or those who have no insurance whatsoever and are liable for serious workplace injuries are a different and very dangerous opponent. They resort to anything that will work for them once an injured worker takes legal action to recover damages. Some of their tricks are shameful, and a few downright illegal.

You will seek to settle with an officer of the self-insured company or maybe even directly from your employer if it is a small company. And often they will have an attorney with them in order to make you uneasy or settle quickly. In either event, the salary of whomever you deal with is likely tied directly to company profits. Any damage amount paid to you comes directly out of company coffers. So by compensating you, your employer literally takes money out of his own pocket. We are rarely surprised when a sneaky, self-insured company officer uses any and all means to deny your claim in order to protect his company’s (and his personal) assets. If his lawyer is present, they’ll probably run the “good cop/bad cop” game at you, with the attorney playing the heavy and the employer ostensibly “acting in your best interests,” (yeah, right!).

Self-insured companies can also deliberately dispose of evidence and bribe or intimidate witnesses: even you. They sometimes resort to physical threats. This is why every time we represent a client against a self-insured company, the first thing we do is to file motions in court that prevents anyone with the company from behaving inappropriately against our clients. Sometimes these motions include a clear demand that they make no attempt to communicate with our clients in any way without one of our attorneys present.

You’ve already been hurt. Don’t let those who negligently caused your serious work accident injury victimize you and your family once again. We’ll help you fight for what is rightfully yours.

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The Damages You Stand to Win in Civil Court for an on-the-job Injury

Your tangible (or obvious) financial losses are called special or economic damages. Most of the time, examples of special damages include lost wages, loss of earning capacity for the period of time you can’t work because of the injury, and your medical bills. Sometimes, the cost of medical treatment can be easy to calculate. Other times these costs are not, especially if your medical treatment continues longer than expected, or the full extent of your injuries is unknown. Then the task of calculating special damages is more complex. Calculating the loss of earning capacity is often a complicated matter. If you’re unable to return to work, you must account for the time-value of money you’ve actually lost, as well as hypothetical promotions, raises, and career changes when calculating how much you’ll demand that the defendant compensate you for income you are unable to earn in the future, regardless of whether it takes months or years for you to recover.

Intangible non-economic losses are called general damages. These damages include compensation for your emotional suffering associated with the accident. The amount of general damages that a case is worth depends almost exclusively on the circumstances surrounding the injury and the degree of pain and suffering. This is why general damages can vary greatly from case to case even if the physical injuries are very similar. After you’ve been injured, personal injury legal advice you find online is almost never sufficient to help you understand the amount of general damages you may be entitled to. Because general damages are relative and subject to many different factors, call our Law Firm for a free consultation to find out what your case is really worth. After we ask you some important questions about your situation, we’ll be in a position to give you an understanding of how a jury will put a price tag on your pain and suffering and other emotional losses, or the amount that may be recovered through aggressive negotiation with those liable for your injury.

It’s Most Important to Begin Protecting Your Rights as an Employee Now, Before it’s too Late

Insurance companies only agree to a settlement that benefits you if you are protected by an attorney with a history of success in court. While insurance companies and their lawyers are eager to take on non-lawyers and inexperienced attorneys, they fear us. When we file a claim, the insurance companies are inspired to settle for a fair amount. They want to avoid a trial, especially if they already know they have a weak case. As a result, our clients can often get back to living their lives again quickly and with a minimal expense because we’ve negotiated a fair settlement on their behalf.

It is quite likely that you are a family member of one who has been seriously hurt in a work accident, but because of his or her current situation, is not capable of beginning this extremely important mission of protecting your family’s clear and fair compensation rights. So it is on you, the family members, to take the bull by the horns and begin this quickly.

It is critical to move swiftly. In work accident cases, the evidence begins to fade and degrade immediately following the accident. The physical details of the scene itself can change quickly. And witnesses change their stories or forget what they saw because the mind is a mysterious thing. Sometimes, they’ve even been “encouraged” to forget, or to “take a nice long vacation.” If you wait too long to hire an accident attorney and put your counsel to work investigating the valuable trail of evidence, then you are doing irreparable damage to your ability to secure the restitution you deserve.

You’ve already been hurt. Don’t let those who negligently caused your serious work accident injury victimize you and your family once again. We’ll help you fight for what is rightfully yours.

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Can I File a Wrongful Death Claim in Texas for an Elderly Family Member’s Death?

In most Texas wrongful death claims, there are often large financial losses that the family members who have lost a loved one may have incurred. And sometimes that wrongful death may go undetected (or even hidden) for a long period of time.

But on the other hand, in the event of wrongful death of an elderly loved one who is living in a nursing home (which are commonly referred to these days as “assisted living” or “elderly care” centers) the comparative financial losses incurred may be less severe. But that does not mean that a wrongful death lawsuit against a negligent caregiver cannot be pursued if negligence or some other civil tort was the cause. In such claims, damages sought are often for the emotional or mental stress experienced by the victim or the victim’s family. This and other physical pain and suffering can be compensated for through a wrongful death lawsuit in the event of an elderly family member’s wrongful, untimely death.

The Common Causes of Elderly Wrongful Deaths

Wrongful deaths that result in the passing of an elderly loved one can happen in a variety of ways. Most of them arise from the negligent behavior of healthcare givers entrusted with providing for such a person. All-too-often we see tragic news stories about unneeded deaths involving nursing home abuse or neglect. Lack of proper care can also be a contributing factor, such as when bedsores form and cause infection leading to death. Additionally, your elderly loved ones may have suffered a wrongful death because of medical malpractice, in which the medical professional (doctor or nurse) responsible for their care can be held liable for their death, depending on the specifics of your parent or grandparent’s passing.

When it comes to medical malpractice suits, it should be noted that recent tort reform has made seeking compensation through such a lawsuit much more challenging than a few years ago. These changes were enacted in order to prevent frivolous lawsuits from being brought against medical professionals. But the changes also made it more difficult for a legitimate medical malpractice suit to be brought against a negligent medical or other licensed healthcare professionals (or assisted living center).

And to further complicate matters, wrongful death medical malpractice lawsuits have certain financial “caps,” which means that surviving family members could only stand to see a certain amount in compensation if their insurance claim or civil case produces a successful outcome. And yet, with such a cap in place, the compensation received through such a claim is often less than what will usually adequately cover the actual damages. An experienced wrongful death attorney with our Law Firm can assist a family seeking compensation for their loss through other possible legal routes, especially if more than one defendant (a third party) is identified through an attorney’s investigation. So the financial shortfall sometimes experienced by the malpractice benefit caps in the wake of a medical malpractice lawsuit might be supplemented through legitimate third party negligence lawsuits to produce a more accurate total damage award.

The wrongful death lawyers at our Texas Law Firm have decades of experience in litigating wrongful death cases arising from negligent elderly care centers. We can help you secure a fair settlement (or court judgment) for your loss, even if it might appear minimal or nonexistent at-a-glance after your elderly loved one’s passing.

We can tell you this. If you have a just case in which – upon investigation – proves negligence contributed to the sad demise of your elderly family member at the center, contact our Law Firm at 1(800) 862-1260 (toll-free) for a free legal consultation. We work on contingency and can apprise you of all your practical legal options. With experience in bringing cases against every major insurer in the state, and with a strong reputation among many defense attorneys, our Law Firm is well-positioned, highly-respected, and a firm that assisted care centers, their insurers and lawyers strongly wish to avoid.

We’ll use our reputation and experience to help you get the justice you deserve for your loved one’s untimely passing. Your grandparents or parents, elderly aunts or uncles lived rich lives. Don’t allow them to be victimized in their last days by negligent people who still took them from you too-soon.

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Calculating Damages in a Wrongful Death Case

When specific financial losses have occurred, calculating fair compensation is relatively straightforward since a specific dollar amount is tied to the damages incurred. However, in a wrongful death case, the plaintiff’s lawyer must be able to justify the surviving family members’ (the plaintiff’s) amount of damages sought. And since emotional or mental stress, as well as pain and suffering (all known as “non-economic damages”), can often be quite subjective and subject to interpretation, Almost universally, it takes the knowledge and assistance of an experienced Texas wrongful death lawyer malpractice attorney like those with our Law Firm to place clear value on these damages and help a plaintiff justify the total and true value of the harm they, and their recently deceased elderly loved one, has experienced to a civil judge and jury.

It is certain that the defendants in any wrongful death or medical malpractice suit involving a senior citizen will be disputed by the defendants’ insurance company and the attorneys who represent them. They will without doubt try and paint a much less than threatening environment provided by their assisted care client than it actually is: then ask for complete relief or a much smaller damage payment to the plaintiffs than they seek.

But the courts do take physical pain and emotional stress into consideration when awarding compensation in regards to wrongful death, especially one that involves medical malpractice or elderly care. But it often requires the help of an experienced legal professional to ensure that a plaintiff is fairly compensated for their loss: either through fair negotiation or a civil trial should the latter be necessary.

Investigations into the Circumstances Surrounding the Death of an Elderly Loved One who Lived at an Assisted Care Center are the Sole Responsibility of Surviving Family Members

The cold hard truth of the matter when it comes to the death of an elderly person is this. Old people die. And because of this, something must be clearly out-of-line in order for that death to come to the attention of the County Medical Examiner. In two recent news stories on 60 Minutes, both of which surrounded the investigation of suspicious elderly deaths in Southern California and Louisiana nursing homes, it was discovered that less than five in 100 such deaths were even investigated by the Los Angeles County and Orleans Parrish Medical Examiners.

They just took the word of the doctor-of-record at each center that the causes of all deaths were natural and nothing out of the ordinary happened. So the attention of these medical examiners never came into play immediately after all of those deaths. Besides, they had backlogs of cases due to the fact that their undermanned and overworked staff had plenty of on their plate already without opening that “assisted care center” wrongful death can-of-worms.

But when 60 minutes producers took a sample of suspicious deaths in both locations and investigated on their own, they found one-in-fifteen to be of “suspicious cause” and investigated further. Three of the Southern California deaths were found to have been caused by a minimum wage employee who was tired of “putting up with old people who complained all the time.”

This was a stark lesson indeed. And it underscores the problem that unless there are absolutely glaring inconsistencies in the death of your elderly loved one and it’s stated cause, a third-party investigator (like 60 Minutes) with solid experience in getting to the bottom of such tragic deaths is a necessity in proving malpractice or wrongful death of a loved one who died while living in assisted care.

Our Law Firm has decades of investigating wrongful death and medical malpractice cases. In addition to our solid investigative team, we also have an honor roll of medical experts who can get to the bottom of your deceased elderly loved one’s suspicious death. And if your fears have merit, our investigations are critical elements as we build the strongest medical malpractice or wrongful death case for you and your family.

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The Current State of the Assisted Care Industry: and Why it’s Important in your Wrongful Death or Malpractice Claim

Choosing to admit your elderly loved one in a nursing home or some other assisted living center was probably a decision that you did not easily arrive at. And as you investigated the possible centers, attempting to choose the best one for your loved one, it is certain that you saw many that proudly pointed to happy residents who were active and well-cared for. But it is certain that with some of them, some “managed care centers” were little more than “managed image marketing.” And they do it quite well, especially to the uninitiated.

Monthly fees at assisted living centers range from $1,500 – $7,500: with the majority falling in the $2500-$3500 range. That’s well over $30,000 a year for “average” care. And rare is the instance where more than half that amount is covered by Medicare, Social Security or some other reasonably-priced supplemental insurance (all combined). The rest comes out of your family’s pocket. With so much money being spent, you certainly expect the best care and service possible for your loved one. Many times you get it or seem to. But just as often, when you lift the veil and peek into the nursing home and assisted care industry, you’ll find that you don’t always get what you pay for.

Usually, no more than 10% of assisted living center employees make more than $35,000 a year (on average). The rest serve as “assistants,” which is a nice way of saying “minimum wage employee.” These are the people who have the most contact with your elderly loved one. And their jobs are not easy. An employee featured on 60 Minutes in Southern California who was charged with three wrongful deaths was just such a “minimum-wage point person” who just got tired of making $300 a week (with overtime) to perform a thankless and sometimes unpleasant job. When he was on trial, he said, under cross-examination, “I just finally had it with emptying bedpans and giving sponge baths to all those old people who did nothing but complain all the time.”

Under such environments like this, is it any wonder that so many wrongful deaths occur in assisted living centers? Like we said, what you are sold isn’t always what you get when the assisted care center, is either lax in its duty to care for your grandparents or parents, or the “suits” cut corners in trying to squeeze every dime out of their facility by cutting corners. And if their center’s negligence caused a wrongful death, they assume that their general chances were excellent that no one would listen to the complaints of these elderly patients, or their families because they were covered by medical examiner inaction. Had it not been for a private investigation their offenses would have never been detected.

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Insurance Company Opposition to your Civil Damage Claims will be Very Aggressive

Just about every wrongful death lawsuit that involves medical malpractice will likely involve some type of insurance coverage for the assisted living center, the doctor-of-record, and other healthcare staff members because the nursing home laws of the State of Texas require it. As a result, an insurer that holds such a prominent policy will likely attempt to do whatever they can to avoid being judged responsible for paying out damages in the event of wrongful death due to negligence by an assisted living center’s healthcare or general staff.

This callous behavior, even if the evidence clearly proves the insured party was negligent in causing the wrongful death rarely changes, regardless of the bereaved family’s obvious need for proper compensation. This is a prominent reason why your wrongful death or medical malpractice case requires aggressive legal representation. These insurers (along with their adjusters and the lawyers who defend the insurance companies in court) typically attempt to make such blame disappear and claim that “this old person died of natural causes,” then ask for relief from what they are certain to charge as a frivolous lawsuit.

Unless you and your Texas wrongful death lawyer have meticulously built a strong case with relevant evidence discovered through a stringent investigation that can speak for your elderly loved one who now cannot, an insurer may be able to argue themselves out of liability for this unfortunate, negligent death, and get their clients off the hook of paying no compensation whatsoever to your family. And this means no justice against the defendant. It also means this defendant feels safe in continuing this reprehensible behavior against someone else’s beloved parent, grandparent aunt or uncle, and make their families suffer.

With over two decades of experience in taking on these types of insurers, our Law Firm is well-acquainted with their methods and tactics, and how to counter every one of them. This means that we can make sure that you’re treated fairly by the insurance companies that have no interest at all in anything other than keeping their money.

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Wrongful Death and Malpractice Statute of Limitations in Texas

The statute of limitations for a Texas wrongful death lawsuit is two years from the date of death. While this period can be extended in certain situations if gross negligence can be proven, or if criminal charges have been filed against a liable party, a victim’s family most often only has two years to seek legal action against a liable negligent defendant. While this may sound like a long time, it is not that long when a thorough investigation must be conducted. Deaths surrounding elderly people historically take longer than normal because sometimes the forensic evidence or the document that produces the “smoking gun” against the defendant may be very deeply hidden. One trick we find in such situations is altered documents, usually excellent Xerox copies of original forms that have been altered. It takes a very clever forensic document expert to spot the one or two pieces of paper buried under a mountain of forms; just like you see on CSI; but the document expert spent hours for his fifteen seconds on the show. It’s very difficult, tedious and time-consuming, with a lot of dead-end trails leading to nowhere.

Some of these kinds of investigations can take more than a year, depending on the circumstances surrounding the death, the number of liable parties, and determining which liable parties will be able to pay their share of the damages. Plus, once we find the “smoking gun document” we have to convince the county medical examiner to reopen a closed case (which they loathe to do, to begin with) and perform an autopsy. This is why we respectfully suggest that if you have any inkling your elderly loved one died suspiciously at a nursing home or assisted living center, and you have no religious convictions that preclude preservation, take steps to preserve the body prior to burial so that the medical examiner can conduct a fruitful examination. If our investigation inspires the medical examiner to reopen the case, and the cause of death is ruled as not being from natural causes or specifically matches the forensic or documented evidence we uncover, you will suddenly have a very strong case. And it becomes quite possible that a negotiated settlement may be reached as none of the defendants want to end up in court against our overwhelming evidence of neglect.

The longer you wait to contact a Texas wrongful death attorney, the more harm you may unintentionally be doing to your case. Evidence can disappear, or can even be removed by those who wish to avoid being held accountable for their actions, or covertly altered. Witnesses become increasingly difficult to track down. Or they may forget critical details in connection to the wrongful death. Or they may have been “encouraged” by defendants to “take a long vacation;” even take a job with their employer in another state. This is why it is critical for investigators to begin their work as soon as possible so your Texas wrongful death lawyer can build a strong legal case toward fair compensation for your loved one’s wrongful death.

Wrongful death cases in Texas are subject to the “discovery rule” which states that the two years do not begin until the time that a reasonably prudent person would have known they had a cause of legal action. A perfect example if the differences in this discovery rule would be to compare a fatal auto accident and a wrongful death at an assisted care center. Wrongful death from an auto accident usually doesn’t take very long to determine if someone’s negligence led to the death of your loved one. So the discovery process usually begins relatively quickly.

But on the other hand, imagine that your elderly loved one and dies due to complications from taking the wrong drug (or dosage) administered by a nurse at the assisted living center. Then, ten years after this death it is determined that the drug was defective and that this defect was a direct cause of your loved one’s death. There might have even been medical bulletins released during the time your elderly loved one was being administered this drug. In this case, the family could likely file a wrongful death claim (in this case, not only against the nursing home but the maker of the drug) even though the standard two-year window had expired. The idea behind this is that the plaintiff-surviving family did not know that they had a case until years later: which would extend the statute of limitations.

All plaintiffs have the right to a reasonable period of “discovery,” which means a good investigation into the causes of such deaths. Keep this in mind, especially if someone with the assisted care facility tries to shuffle you off quickly after the sad event of your elderly family members passing. They may want to close things out quickly to avoid suspicion.

Another Example of How the Statute of Limitations Can Be Extended

In cases where the defendant deliberately concealed their involvement or culpability in a death, the statute may be extended to allow the family of the deceased to pursue civil action against the defendant. In some situations, this concealment may be criminal. Or the concealment may have been part of a larger criminal enterprise. When this happens, the defendant may also be subject to criminal charges in addition to civil charges. And when a defendant must answer criminal charges as well, it invariably strengthens your civil case, even if the defendant is ultimately exonerated in criminal court.

You may not know that, since healthcare records are also legal records, that if a wrongful death has occurred at a hospital or assisted living center, and the patient-record documents have been altered to hide negligence as cause of death, in addition to civil action, the healthcare employee (and maybe the employer) is also subject to felony charges of altering a legal document by citing “respondent superior:” which states that employers of their employees’ illegal acts while at work are, by legal-definition, every bit as responsible for the criminal action or inaction of their employee. And with all the public interest in the state of nursing homes and elderly healthcare facilities, the District Attorney will be very interested if we find legitimate evidence of a criminal cover-up by a senior care center in the event of your loved one’s negligence-based wrongful death.

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Texas Malpractice and Wrongful Death Attorneys at our Texas Law Firm Can Help You in the Event of a Suspicious Death of Your Elderly Loved One

Losing a loved one can be an emotionally trying time, especially if they were advanced in years and endured suffering at the end of their time in your lives. If your elderly loved one suffered a wrongful death due to the negligence of a person or entity, you likely have merit in seeking compensation for your loss. Through a wrongful death lawsuit (or accompanying medical malpractice or defective product suits), you could stand to be compensated for your loss, but you will also be working to ensure that the guilty defendant is held accountable for their negligent behavior – in both civil court and criminal court if the latter applies – so that a future death does not have to occur as a result of their poor or careless decisions.

We have a bit of free advice if your beloved grandparent, parent, elderly aunt or uncle has recently passed, and you feel uncomfortable about the circumstances surrounding the passing.

When it’s time to make that last visit with the center’s owners to pick-up your loved one’s belongings and sign the legal documents that end your relationship with the center, review them very carefully. And if you see anything resembling a liability release form, consider that to be unusual under the circumstances and ask if them to provide a copy for your attorney to review, prior to signing it. In fact, maybe you should have a wrongful death lawyer accompany you to this meeting to give you his view of the situation and also review everything you should sign. Remember, deception and fraud can extend the statute of limitations. But a good investigative and legal mind can usually tell you right away if he or she “smells something fishy.”

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