Archives for category: Personal Injury

When someone wants to sue a city, county, the State of Texas, or some other governmental entity (like a School District) for personal injuries or damage to their property, it is important for them to know that Texas Tort Claims Act requires the person to provide written notice of their claim not later than 6 months after the day that the incident giving rise to the claim occurred. Please note, however, that a city’s charter and ordinance provisions may dramatically shorten this 6 month period of time. I have seen ordinances that shorten the 6 month period to as short as 60 days (and there may be some that shorten the period any further). The notice must reasonably describe: (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident itself. If the notice requirements are not met, the governmental entity can request that any lawsuit you file be dismissed, and the court will do so, unless you can establish that the governmental unit had actual notice that you received some injury or that your property had been damaged. This “actual notice” exception is sometimes difficult to prove; therefore, comply with the notice requirements if at all possible. Because the outcome of failing to provide proper notice can be harsh, I recommend that you consult with a qualified attorney to assist you with your case. I look forward to visiting with you next time. *Please note that this Blog does not apply to cases involving causes of action based on federal law or to a claim against a governmental employee based upon individual liability. Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood& Cartwright, P.C.

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One in four crashes involves driver distraction. Drivers who use cell phones in their vehicles have a higher risk of collision than drivers who don’t, whether holding the phone or using a hands-free device. If you are interested in reading any distracted driving studies that have been performed, you can start by going to http://handsfreeinfo.com/distracted-driving-research. Because of the increased risk for collision, parties in a car wreck case will often request cell phone records for the day of the accident to determine if either was using a cell phone at the time of the wreck: the plaintiff to prove the defendant is liable for the crash; and the defendant to avoid responsibility, either in whole or in part, as a result of the plaintiff’s own negligence. Introduction of such evidence will require the jury to determine if such cell phone use was negligent and whether it was a cause of the wreck or contributed to it. If a party is using a cell phone in violation of a city ordinance or Texas state law, such violation may be grounds for the judge to instruct the jury that such violation is negligence as a matter of law. In the DFW Metroplex, there are city ordinances prohibiting cell phone use in Dallas and Arlington. Likewise, Texas state law prohibits drivers under the age of 18 from using wireless communications devices; learner’s permit holders in the first six months of driving; and drivers in school crossing zones. I look forward to visiting with you next time. Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood& Cartwright, P.C.

In my last blog, i discussed time deadlines, called statutes of limitation, that an adult has to file a lawsuit based on general negligence. but what about medical negligence cases (often referred to as Medical Malpractice)? How long do you, as an adult who is at least 18 years old or older and of sound mind, have to file a lawsuit against a healthcare provider based on medical negligence? If there is an identifiable date of negligence (for example, a botched surgery where it is clear what day the negligence actually occurred, Section 74.25(a) of the TEXAS CIVIL PRACTICE & REMEDIES CODE, sets forth the limitations period for medical malpractice as follows: “[N]o health care liability claim may be commenced unless the action is filed within two years from the occurrence or breach or tort…” If no identifiable date of negligence exists (for example, a physician the patient sees more that once who continues to fail to diagnose the patient’s cancer), then Section 74.25(a) provides, “[N]o health care liability claim may be commenced unless the action is filed within two years from… the date the medical or he alt care treatment that is the subject of the claim or hospitalization for which the claim is made is completed…” Contrary to general negligence cases, the discovery rule (that was discussed in my last blog) typically does not apply in medical negligence cases. Thus, as a general rule with very limited exceptions, the statute of limitations will not be tolled in a medical negligence claim until you knew or through reasonable diligence should have known of the injury that you are complaining about. This can be an extremely harsh result. Therefore, if possible, an in no event, should you let more than two years from the earliest date of any alleged medical or health care malpractice or other wrongful conduct go by without retaining qualified legal counsel and initiating action. If you do not file suit within the applicable statute of limitations, your claims will be forever barred. There is currently a way to extend the statute of limitations against any negligent healthcare provider an additional 75 days. However, certain steps must be followed to do so. Therefore, I would encourage you to hire a qualified attorney to do this. Please note that even if you file suit within the applicable limitations period, you must still exercise diligence in serving the defendant(s). If you fail to do so, your claims will still be barred by the statute of limitations, even if you filed the case within the appropriate deadline. All of this can get rather confusing so the bottom line is do not put off consulting with a qualified personal injury trial attorney to assist you in determining if you have a claim and when a lawsuit must be filed to preserve that claim. Therefore, please feel free to contact me at (940) 891-0003 to set up a cost-free consultation to discuss your case. *Please note that this Blog applies to negligence cases for adults who are of sound mind and medical negligence not based upon inherently undiscoverable conditions (e.g., a surgical sponge not removed during surgery). It does not apply to general negligence claims. It also does not apply to minors or persons of unsound minds. These topics are separate beasts which are better discussed in separate blogs. If look forward to visiting with you next time.

Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood & Cartwright, P.C.

In Texas, there are dealings, called statutes of limitation, that you must file a lawsuit in or your claims will be forever barred. The statute of limitations for an adult who is at least 18 years old or older and not of unsound mind for a claim based upon negligence* is two years, which begins to accrue when the wrongful act that you complain about causes an injury, regardless of when you may have learned of such injury. The “discovery rule,” however, may defer accrual of the statute of limitations until you knew, or by exercising reasonable diligence should know, of the facts giving rise to your claim. For the “discovery rule” to apply, however, your injury must be both inherently undiscoverable and objectively verifiable. An injury is inherently undiscoverable if it is, by its nature, unlikely to be discovered within the prescribed limitations period despite due diligence. The court must decide whether your injury is the type of injury that generally is discoverable by the exercise of reasonable diligence. (It is well-settled that injuries are not inherently undiscoverable when they arise from an immediate and traumatic event, like a car wreck or slip and fall). An injury is “objectively verifiable” if the injury’s existence and the defendant’s wrongful conduct cannot be disputed and the facts on which liability is asserted are demonstrated by direct physical evidence. Please note that the TEXAS CIVIL PRACTICE & REMEDIES CODE currently provides, “If the last day of a limitations period under any statute of limitations falls on a Saturday, Sunday, or holiday, the period for filing suit is extended to include the next day that the county offices are open for business.” TEX. CIV. PRAC. & REM. CODE ann Section 16.072 (Vernon’s 2013). However, this law is subject to change. Even if you file suit within the applicable limitations period, you must still exercise diligence in serving the defendant(s). If you fail to do so, your claims will still be barred by the statute of limitations, even if you filed the case within the appropriate deadline. All of this can get rather confusing so the bottom line is do not put off consulting with a qualified personal injury attorney to assist you in determining if you have a claim and when a lawsuit must be filed to preserve that claim. Therefore, please feel free to contact me at (940) 891-0003 to set up a free cost-free consultation to discuss your case. *Please note that this Blog applies to general negligence cases for adults who are 18 years or older and of sound mind. It does not apply to medical negligence (i.e., medical malpractice) claims. This is a separate beast which I will discuss in my next blog. I look forward to visiting with you next time.

Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood & Cartwright, P.C.

Previously, I discussed time deadlines, called statutes of limitation, that an adult has to file a lawsuit based on general negligence. but what about when the person injured is under the age of 18? When does a child have to file suit? Currently, if a person is under the age of 18, the time deadline for filing suit does not begin to run until they turn 18. They then have two years from the date that they turn 18 to file a lawsuit based on general negligence. Please note that even if a person files suit within the applicable limitations period, they must still exercise diligence in serving the defendant(s). If they fail to do so, their claims will still be barred by the statute of limitations, even if they filed the case within the appropriate deadline. All of this can get rather confusing so the bottom line is do not put off consulting with an qualified personal injury trial attorney to asset you in determining if you have a claim and when a lawsuit must be filed to preserve that claim. Therefore, please feel fee to contact me at (940) 891-0003 to set up a cost-free consultation to discuss your case. Please note that this Blog does not apply to medical negligence cases, which is a separate beast better discussed in a separate blog. I look forward to visiting with you next time.

Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated Martindale-Hubbell, Shareholder, Alagood & Cartwright, P.C.

Image Many clients are  reluctant to report claims on their auto insurance policies.  Their single greatest fear is that it will increase their future premiums.  Whether or not your rates will increase depends on multiple factors, including who your insurer is, how long you have been with them, what type of claim you are filing, and how many claims in the past that you have filed.  If a claim is filed under your auto policy, and you have been with the company less than a decade, and you have had one or more past claims, there is a good chance that your premiums could go up.  Because of this, many people try to avoid involving their auto carrier.  Be careful, however.  There is often one or more provisions in your automobile policy that requires you to report any loss and not prejudice the insurance company’s duty to defend you.  If you fail to follow these provisions, and your failure results in the carrier being prejudiced, the insurance company may wind up denying coverage if you, the other party, or the other party’s insurance company winds up later filing a claim for whatever reason.  For example, suppose you are involved in what you think is a minor fender bender.  You don’t report the matter to your insurance company, you tell the other party that the car accident was your fault, and, in trying to be a good person, you verbally agree to pay for the property damage as well as the person’s damages resulting from the wreck.  Now suppose that what the other party originally believed was whip lash actually was a herniated disk and, when you refuse to pay the thousands of dollars of medical expenses to treat the person’s injuries, you or the other party files a claim with your insurance company.  There is a good chance that the insurance company could deny the claim, reasoning that you accepted liability, prevented the carrier from asserting any potential defense, and they are now stuck with paying the bill.  At the end of the day, before you experience any loss, you probably should contact your agent and ask them what situations could result in your premiums being increased and by how much.  You should also ask them what duties you have under the Policy as to reporting claims, the effect of not doing so, and what provisions in the Policy that set your duties and responsibilities in the event of a claim.  I would recommend documenting who you spoke with, the date and time that you spoke with them, and what the person told you.

 Brian T. Cartwright is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization and can be reached at bcartwright@dentonlaw.com and at http://www.dentonlaw.com.

There is good news for personal injury victims in the state of Texas.  Previously, if a person injured by another person’s negligence or other wrongful conduct obtained medical treatment which their medical insurance company paid for, the insurance company could insert, and then enforce, a provision in the injured plaintiff’s medical policy which permitted the carrier to be repaid all of the money that was paid by the company as a result of the third party’s negligence or other wrongful conduct, even if that meant that the insurance company received all of the money being paid to the plaintiff.  The resulting tragedy was quickly exposed when persons suffering catastrophic injuries wound up receiving nothing, with everything instead going to the medical insurance company.  In HB 1869, known as the Subrogation Reform Bill, and begin codified in Chapter 140 of the Texas Civil Practice & Remedies Code, the Texas Legislature recently overturned the Texas Supreme Court’s decision in Fortis v. Cantu, and now caps the amount of money that the medical insurance company can be repaid in instances where the injured person is not able to realize a complete and adequate recovery for an injury sustained by the negligence or other wrongful conduct of another person.  The amounts differ depending on the circumstances; however, if you are represented by an attorney, then, effective January 1, 2014, the insurance company can only take up to 1/3 of the total recovery to satisfy any amounts that it paid out.  If the injured party is not represented by an attorney, the amount goes up to one-half.  (Unfortunately, however, HB 1869 doe snot apply to Medicare, Medicaid, CHIPS, Worker’s Compensation, and self-funded ERISA plans).  If you have suffered a personal injury in the Metroplex, including Denton County, Dallas County, or Tarrant County, as a  result of tortious conduct, including negligence, products liability, automobile accident, 18 wheeler accident, medical malpractice, or other wrongful conduct, then please contact me so we can further discuss your legal rights during a free consultation.

Brian T. Cartwright is Board Certified in Personal Injury Trial Law and can be reached at bcartwright@dentonlaw.com and www.dentonlaw.com