VII. Consumer Articles

THE "BIND" IN BINDING ARBITRATION

Arbitration is a method of settling disputes by presenting the facts and arguments to a person or panel to decide who should win and how much the damages are. Voluntary arbitration is a useful tool to settle certain types and sizes of lawsuits. However, many corporations and companies now require customers and consumers to give up their Constitutional and Seventh Amendment Rights to a fair trial by judge or jury and limit them to a binding@ arbitration.

The problem is that binding arbitrations are one sided in favor of big businesses or companies that have repeated complaints from consumers. Here is how:

In a normal business dispute between a company and a consumer, a Texas consumer has the right to take claims smaller than $10,000 to small claims court before a Justice of the Peace without a lawyer (just like People's Court@ or Judge Judy@, etc. on TV). The filing fee is only about $90. The cost of the judge, court facilities, and staff are covered by our tax dollars. But in binding arbitration, the claimant must pay 2 of the cost of the arbitration up front, including the cost of the location where the arbitration is held. The consumer's 2 of the fees for binding arbitration normally runs about $5,000 to $20,000. This means that under a binding arbitration contract most consumers cannot afford to dispute a claim. And since they have contracted away their right to go to court, on most disputes they have no remedy at all.

Also, studies show that in binding arbitration the arbitrators decide against the consumer about 80% of the time. Authors who have studied this problem believe that this is because the arbitrators know that if they rule against a corporation or business, they will be blacklisted from being the arbitrator on future cases against that company. But an arbitrator that decides in favor of a company is likely to be asked to arbitrate for that company again. The consumer is not likely to have any future cases for the arbitrator.

Types of companies most likely to use binding arbitration contracts are companies like banks, credit card companies, insurance companies, contractors, etc. For example, if you are getting your roof replaced because of recent hail damage, look under the "Dispute Resolution" or "Arbitration" paragraph on the back of your contract and see if you have given up your legal rights without even knowing it. Some of these can be beaten, if your lawyer knows how.

UNIVERSAL HEALTH CARE

Most developed countries have universal health care. Why can't we? Studies show that between five and six million people in Texas do not have health insurance - about 25% of Texas= population. This is the highest/worst in the U.S. If you eliminate all non-citizens, both legal and illegal it drops to 20%, but is still the worst in the nation. On the other hand, if you drop people over 65 (covered by Medicare) and those under 17 (in other words, working age people from 17 to 65), the percentage jumps to 30% uninsured in Texas.

The two solutions proposed are a universal health insurance@ and a single payer plan@ (the government). Universal health insurance plans propose passing legislation to require all businesses to provide health insurance coverage to their employees and tax incentives for non working people so they can better afford to buy insurance. The business community would raise their prices to pay for the coverage. This type of plan is generally offered by Republicans. The single payer plan basically means that the government will provide the coverage and all taxpayers will pay for it. This type of plan (which is what other developed countries have) is usually suggested by the Democrats. Which to choose? Which is better?

I asked this question to a senior Scott and White administrator speaking to the Temple Lion's Club last year. He said that he might sound like a heretic, but that Scott and White had studied this and concluded that the single payer plan (government) would be the best choice. He says the health insurance companies take an average of about 20% of your health care dollars as profits. Even more in administration and overhead costs. And although he is not in favor of more government, eliminating the health insurance companies as an additional profit center competing for a part of your health care dollars is the most reasonable choice.

A recent report card@ on health insurers issued by the American Medical Association (AMA) reinforces his logic. According to the AMA, in our present multiple payer system, doctors and hospitals spend an additional 14% of your health care dollars on just trying to collect from the insurance companies. Medicare performed better than the top seven health insurance companies in almost all areas of the AMA's study. Looks/sounds like we could afford to have universal health care for about the same money we are paying now if we just eliminated the profit and collection cost burden of the health insurance companies.

HEALTH CARE QUALITY IN TEXAS

The Quality of Health Care is rated by state by state in a recent report by the Commonwealth Fund. The Commonwealth Fund is a private foundation that supports independent research on health issues. The report features a scorecard ranking states on 32 indicators of health care access, quality, potentially avoidable use of hospitals and costs of care, equity and the ability to live long and healthy lives.

Oklahoma, Mississippi, TEXAS, and Arkansas finished at the bottom. Hawaii, Iowa, New Hampshire, and Vermont scored the highest overall. Texas was 49th, while Oklahoma and Mississippi tied for 50th out of 51 (District of Columbia was included for a total of 51).

The study estimates that if all states did as well as the top-performing states, there would be 90,000 fewer deaths before age 75 per year, 22 million currently uninsured adults and children would have health insurance coverage, and Medicare (and Taxpayers!) should save at least $22 billion per year.

There was no correlation between the higher cost of care in some states and the quality of care. The authors believe that this is because states with higher medical costs have higher rates of preventable hospital use, such as high admission rates for preventable complications from diabetes, asthma, and other chronic conditions.

States with the lowest rates of uninsured persons in the state tend to score the highest on measures of preventive and chronic disease care, as well as other indicators of quality. If Texas politicians continue to support policies that promote higher numbers of medically uninsured people in Texas, it is likely that Texas will continue score low on the quality of healthcare when compared with other states. Read the study at: http://www.commonwealthfund.org/publications/ publications_show.htm?doc_id=494551.

WHAT TO DO AFTER THE ACCIDENT

Do not volunteer information or comment on the accident. Do not sign any pieces of paper nor agree to pay for damages. You should, however, cooperate with police officers investigating the case. You must sign traffic tickets but this in itself is not an admission of guilt or wrongdoing. Advise the officer of basic facts, without adding personal comments or interpretations. Keep calm and tell the truth.

Give reasonable assistance@ to any injured persons. Do not move anyone who is badly injured, unless there is danger for greater injury by leaving him alone. If needed, call for an ambulance.

Call 911 and ask for the police or Texas Highway Patrol to come out to the accident scene to investigate. They are much more likely to be interested in filing a report on the accident if there were: 1) any traffic laws broken, 2) any drugs or alcohol involved, 3) injury (even if minor) to any of the persons, or 4) substantial property damage incurred (over $500). If the police are not called or will not come out to the scene of the accident to file a report, you are required by law to go to the police station to file a written report within ten days if there are any injuries or property damage over $500. This is especially important to help you preserve your rights if you have to make an uninsured motorist claim against the insurance company.

If possible, do not move the vehicles until a record of the accident has been made. All drivers must identify themselves to each other. Copy down information contained on all driver's licenses, vehicle registrations, and insurance cards. Identify all passengers and witnesses before they leave. You will need their names, addresses, and phone numbers. Take photographs if at all possible.

As soon after the accident as possible, it would be a good idea to be checked out by a doctor. Even if there are no initial signs of pain, there might have been damage done to the neck or spinal cord. Remember the value of an injury claim is set by your medical paper trail.

Contact your insurance company, usually within 24 hours, to file a claim. You may want to talk to a personal injury lawyer at this time to clarify your rights and discuss questions of liability for the accident. You also need to file an accident report with the Department of Public Safety within 10 days, if a police officer did not file a report.

DO I NEED A WILL?

A common reason to have a will is to control the ownership of the community property (property purchased during a marriage) when there is a child by a prior marriage. When a spouse with a child of a prior marriage dies without a will, the deceased spouse's one-half ownership interest in the community property (including the house!) is automatically split equally among all of that deceased spouse's living children or children's descendants. The surviving spouse keeps his/her one-half interest in the community property, but gets nothing from the deceased spouse. The average cost for a simple will that solves this legal problem by leaving all or part of your property to your surviving spouse costs about $150 per will.

Another important reason for a will is to provide a trust for minor children if something should happen to both parents. Without a will, a court monitored guardianship will be needed to manage a child's money until that child turns 18. At age 18, by law, the court must then give the child all of the money. A trust inside a will is the best and cheapest way to mange the child's money past age 18 to get the best possible education for that child and to teach that child to work for a living. A simple will with a trust for minor children costs about $300 per will.

Directing where your property goes after death is also done by third party contracts. Typical third party contracts include named beneficiaries or survivors of life insurance policies, pension plans, IRA's, checking or savings accounts, mutual fund accounts, etc. A beneficiary or survivor named in these contracts will own that property after your death, even if your will says something different. It is important to coordinate these contracts with your will.

With a will, most simple probates cost about $1200 to $1500, plus expenses. With a will, cheaper alternatives to probate are also available, if there are no debts owed or it is a small estate. Without a will, a probate administration of an estate is usually much more expensive.

LIVING WILL / MEDICAL POWER OF ATTORNEY

The Terri Schiavo case in Florida has made many people aware of the need for a Living Will and a Medical Power of Attorney. The forms of both a Living Will and a Medical Power of Attorney are controlled by Texas Law in Chapter 166 of the Texas Health and Safety Code.

The Living Will (sometimes called a Physicians Directive) is a written instruction signed by a patient in front of witnesses that directs medical personnel either to give or to withhold life-sustaining treatment in the event of a terminal or irreversible condition. If you do not have a Living Will, Texas Law says that these life sustaining decisions can be made for you by the these people, in a descending order of priority: Legal Guardian, Spouse, Reasonably Available Adult Children, Parents, Nearest Living Relative.

The Medical Power of Attorney (sometimes called a Health Care Power of Attorney) is a written document signed by a patient in front of witnesses that give a specific person the legal right to make health care decisions for a patient, but only if that patient later becomes incompetent. Before the person holding the medical power of attorney can make any medical decisions for you, your attending doctor must first certify in writing that, in his judgment, you are now incompetent to make medical decisions for yourself.

Signing witnesses must be competent adults, but cannot be relatives by blood or marriage, legal heirs or the patient's medical providers. These categories make it difficult to get your signature witnessed after you are admitted to the hospital. Many hospitals provide free copies of these documents when you talk to hospital admission counselors before admission. Free copies that follow Texas Law can be downloaded from the following (and many other) websites:

http://familycaregiversonline.com/legal medical.html
http://www.peopleslawyer.net/deathdying.html
http://www.texashealth.org/main.asp?level=2& id=DD579008B2CC42419E907944C83DBFE9

WILL MY ESTATE OWE ESTATE TAXES?

In spite of the big fuss many politicians make, the answer is Probably not. The property you own at the time of your death is called an estate. After your death, your estate is treated by the law as a separate legal person, just like a corporation or a trust. The U.S. Government and the State of Texas have laws to tax certain sized estates.

Currently (2007), an individual's estate is exempt from both Federal and Texas estate taxes if the value of the estate, after deducting ordinary expenses (funeral expenses, medical expenses, probate costs, etc.), is less than $2,000,000. Since Texas is a community property state, a married couple whose total estate is less than $4,000,000 will not owe any Federal or Texas estate taxes.

The maximum estate value before taxes for individuals/couples will also be $2,000,000/$4,000,000 in 2008. In 2009 it will be $3,500,000/$7,000,000 before any taxes are owed. The estate tax is scheduled to be repealed in 2010. However, if Congress takes no action, in 2011 the law that created these huge credits will bring the estate tax back into existence at the old 2001 levels of credit before tax.

The Texas estate tax owed is the amount of the Federal estate tax credit allowed for Texas estate taxes. This means that if you do not owe any Federal estate taxes, you do not owe any Texas estate taxes. If you do owe any Federal estate taxes, that amount of tax will be divided between the U.S. tax and the Texas tax under the Federal credit formula for state estate taxes.

Under certain conditions, life insurance proceeds or retirement plan benefits must be counted as part of the deceased's estate, even if the benefits are to be paid to a survivor rather than the estate. If you are one of the fortunate individuals who has accumulated an estate large enough to pay estate taxes (less than 1% of U.S. population), it is recommended that you contact a lawyer, CPA or certified financial planner to help you limit your future estate tax liability.

HOW TO MAKE YOUR HEALTHCARE SAFER

The National Patient Safety Foundation (NPSF) suggests the following steps to help make your health care experience safer:
Become a more informed health care consumer

* Research options and possible treatment plans for your condition.

* Choose a doctor, clinic, and hospital experienced in the treatment you need.

* Get a second opinion.

Keep track of your history

* Write/type a medical history including any medical conditions you have, illnesses, immunizations, allergies, hospitalizations, all medications and dietary supplements you're taking, and any reactions or sensitivities you've experienced.

* Write down the names and phone numbers of your doctors, clinics, and pharmacies for quick reference.

Work with your doctor and other health care professionals as a team

* Share up-to-date health history with everyone who's treating you.

* Understand the care and treatment you'll be receiving. Ask questions if you don't understand.

* Pay attention. If something doesn't seem right or safe, call it to the attention of your doctor or health care professional.

Involve a family member or friend in your care

* If you're not able to observe or participate fully in your care, ask a family member or friend to accompany you on appointments. They can help you ask questions, understand care instructions, and suggest your preferences.

Follow the treatment plan agreed upon by you and your doctor

* Get instructions verbally and in writing that you can read and understand. Ask questions every time you don't understand instructions that are confusing or unclear.

* Take/finish all medications exactly as prescribed.

Report bad reactions or anything unusual to your doctor.

IDENTITY THEFT ADVICE

1. The next time you order checks, have only your initials (instead of first name) and last name put on them. If someone takes your checkbook, they will not know if you sign your checks with just your initials or your first name, but your bank will know how you sign your checks.
2. Do not sign the back of your credit cards. Instead, put PHOTO ID REQUIRED.
3. When you are writing checks to pay on your credit card accounts, DO NOT put the complete account number on the For line. Instead, just put the last four numbers. The credit card company knows the rest of the number.
4. Put your work phone number on your checks instead of your home phone. Use a P. O. Box or your work address instead of your home address. Never have your Social Security number printed on your checks. You can add it later, if necessary.
5. Place the contents of your wallet on a photocopy machine. Copy both sides of each license, credit card, etc. You will know what you had in your wallet and all of the account numbers and phone numbers to call and cancel. Keep the photocopy in a safe place. I also carry a photocopy of my passport when I travel either here or abroad.
Here's some critical information to limit the damage in case your wallet, etc. is stolen:
1. We all know that we should cancel our credit cards immediately. The key is having the toll free numbers and your card numbers handy so you know whom to call. Keep those where you can find them.
2. File a police report immediately in the jurisdiction where your credit cards, etc. were stolen. This proves to credit providers you were diligent, and this is a first step toward an investigation (if there ever is one).
3. Call the three national credit reporting organizations immediately to place a fraud alert on your name and Social Security number. The fraud alert means any company that checks your credit knows your information was stolen, and they have to contact you by phone to authorize new credit. Here are numbers to contact after your wallet, etc. has been stolen:
* Equifax: 1-800-525-6285
* Experian (formerly TRW): 1-888-397-3742
* Trans Union: 1-800-680-7289
* Social Security Administration (fraud line): 1-800-269-0271

LAWYER ADVERTISING

Before 1977 nearly all professional licensing agencies prohibited advertising by professionals. However, in 1977 the U.S. Supreme Court ruled in Bates vs State Bar of Arizona that commercial speech is also protected under the First Amendment. Now most professionals must advertise to compete financially for new business, even doctors and hospitals.

In the 1980's, the American Bar Association did a study of lawyer advertising and discovered that lawyers who do a lot of repetitious business (business, banking, corporate, real estate, etc.) for the same clients get most of their new clients from word of mouth or personal recommendation. Advertising is not very helpful to them. But lawyers who do the types of cases for unexpected/unplanned events (divorce, insurance, bankruptcy, injury, etc.) get over 50% of their new business from yellow page advertising. The study is conflicting over whether or not TV advertising helps or hurts a lawyer's business and reputation.

Some helpful hints when reading lawyer yellow page ads:
* A bigger ad does not mean a better lawyer, it just means a bigger advertising budget.
* Board Certified means that the lawyer has at least 5 years experience in that field, devotes at least 25% of his time to that field, judges and other lawyers have certified that the lawyer knows what he is doing, and the lawyer has passed an additional all day exam on that specific subject. Not Board Certified means just that.
* Combined Experience usually means less experienced lawyers are adding up the years they have practiced to sound more experienced than they really are.
* Be cautious of lawyers that advertise too many different kinds of practice. You would expect an injury law expert to handle most different types of injury or death cases, or a family law expert to handle different types of family matters such as divorce, custody, adoption, etc. But be careful of ads that claim the lawyer is an expert in many different fields (such as family law AND injury law AND probate law AND real estate law AND bankruptcy law AND criminal law, etc). Ads like that remind me of the old saying, Jack of all trades, master of none.

PATIENT SAFETY

As Congress prepares to debate a medical malpractice bill that protects insurance and drug company profits at the expense of patients at risk of death and permanent injury from medical negligence, a new study from a health care ratings company shows that medical errors are on the rise.

The third annual HealthGrades Patient Safety in American Hospitals Study, released April 3, 2006, found that among Medicare patients in hospitals, 250,246 patients were killed by potentially preventable medical errors over a three year period. HealthGrades previously estimated that within the entire population, not just Medicare patients, there were 575,000 preventable deaths caused by medical errors over three years.
Among the other findings in this third HealthGrades Patient Safety in American Hospitals study:

* If all hospitals performed at the level of the top 15 percent of hospitals, there would have been 280,134 fewer Medicare patient safety incidents and 44,153 fewer deaths, saving $2.45 billion in the years 2002-2004.

* Of the 304,702 deaths that occurred among patients who developed at least one patient safety incident, 250,246 were potentially preventable.

* Medicare patients who had at least one safety incident had a 1-in-4 chance of dying during their hospitalization.

In its report, HealthGrades identifies the patient safety incident rates for nearly every hospital in the country by applying the Agency for Healthcare Research and Quality (AHRQ) Patient Safety Indicator methodology to three years of Medicare data (2002-2004). From this analysis, HealthGrades identifies the best-performing hospitals to establish a best-practice benchmark against which other hospitals can be evaluated.
Scott and White in Temple, Providence in Waco, and St. David's in Austin made the list of Best Performing Hospitals in patient safety. Kings Daughters and Metroplex did not make the list of Best Performers.

STOP TELEMARKETING PHONE CALLS

Since October 1, 2004, you have been able to add your name, address, and telephone number to the national and state sponsored No Call Lists. Signing up for the No Call Lists will limit the number of telephone solicitations from telemarketers, including Retail Electric Providers. The lists are created to prevent telephone solicitations to your residential phone and wireless phone from all telemarketers calling Texas phone numbers.

You may register for the statewide Do Not Call List at 1-866-896-6225 or www.texasnocall.com. If you register for the statewide list via the automated registration at 1-866-6225, or mail in your application, there is a charge of $2.25 for each phone number to be included in the list. To register by mail, call toll free 1-866-896-6225 to request a registration form or use the printable registration form found at www.texasnocall.com. Telephone registrations must be paid by credit card, and mailed applications may be paid by credit card or by check made payable to Texas No Call. You may register online at no charge at www.texasnocall.com. Your registered telephone number(s) will remain on this list for 3 years
You may also register for the national Do Not Call Registry at www.donotcall.gov or by calling toll-free at 1-888-382-1222 (TTY 1-866-290-4236). Your registered telephone number(s) will remain on this list for 5 years.

This will not stop all calls. Telemarketers may contact customers with whom they have an established a business relationship, if the customer has requested contact, to collect a debt, or if the telemarketer is a state licensee. If you receive an exempt call and you tell them not to call you again, they are supposed to put you on their internal no call list and not call you anymore.

There will probably be a delay before the calls stop because the no call lists that are provided to telemarketers are only updated every three months. If you continue to receive calls after signing up or asking a business not to call anymore, you can file a complaint by contacting the Customer Protection Division of the Public Utility Commission of Texas at 1-888-782-8477 or at P. O. Box 13326, Austin TX 78711-3326.

WHAT TO DO ABOUT AMBULANCE CHASERS

It is against the law for a lawyer or members of a lawyer's staff, such as investigators, legal assistants, or secretaries to contact you or your family in person or by phone after you or a member of your family have been injured and suggest that you hire their law firm to represent you or your family. A violation of this law is called Barratry. It is a felony punishable by up to 10 years in prison.

It is against the law for a lawyer or his staff to contact you or a member of your family by mail and offer to represent you or your family until 31 days after the accident or injury. If you are in a car wreck, the investigating officer should check on the accident report whether or not you give permission to be contacted.
Lawyers or their employees and investigators who violate this law often try to make you believe that a friend or relative, a public official, such as a police officer, or one of your medical care providers asked them to call you. Even if true, this is still illegal. It is also a violation of this law to offer to loan money or pay outstanding bills such as medical expenses in exchange for your employing that lawyer.

Insurance adjusters and insurance defense lawyers generally know which lawyers use these methods to get cases. If you hire a lawyer who uses these methods to get your case, the adjusters or defense lawyers will be suspicious of your claim and it will make it harder for a person with an honest claim to get everything they are legally entitled to collect.

If someone connected with a law firm calls or writes you or your family about your claim without being asked to do so, write down their name and the name of their law firm. You should then report this person or law firm to the State Bar of Texas at 1-800-633-6630. If you have an honest claim, you should not accept anything less than honest legal representation