Texas has a substantial factor requirement in workers’ compensation cases which the Claimant’s evidence frequently fails to meet in our hearing offices and court rooms. Also, if the medical evidence of causation is conclusory, it is insufficient.
1) SUBSTANTIAL FACTOR REQUIRED
The causation standard on whether an injury is work related is based on a recent Texas Supreme Court case called Transcontinental Insurance Co. v. Crump . It says that “producing cause in workers’ compensation cases is defined as a substantial factor in bringing about an injury, and without which the injury would not have occurred.”
The Crump court said: “In other words, for an act or event to rise to the level of cause in the legal sense, the act or event must be such that reasonable jurors would identify it as being actually responsible for the ultimate harm. The cause must be more than one of the countless ubiquitous and insignificant causes that in some remote sense may have contributed to a given effect as, for example, simply getting up in the morning. That the term substantial factor is given to this commonsense aspect of legal causation simply makes plain to jurors that more than causation in this indirect, “philosophic sense” is required.”
2) EVIDENCE CANNOT JUST BE CONCLUSORY
And in Texas Workers Compensation Appeals Panel Decision 110054, the Appeals Panel stated that “[a]lthough the claimed conditions are listed in the record, there is not any explanation of causation for the claimed conditions in the record. We hold that in this case the mere recitation of the claimed conditions in the medical records without attendant explanation how those conditions may be related to the compensable injury does not establish those conditions are related to the compensable injury within a reasonable degree of medical probability.”
Reversing the Hearing Officer, The Appeals Panel stated:
“There are no medical records in evidence, neither those of the treating doctor or the designated doctor, that explain how the work injury of [date of injury], caused the claimed right lower extremity myelopathy, arthrosis at L4-5, disc bulge at L5-S1, and aggravation of degenerative disc disease. The peer review doctor, testified at the CCH as to what each of these claimed conditions were, and why, in his medical opinion, the medical records of the claimant did not establish the claimed conditions resulted from the work injury, within reasonable medical probability. In contrast, the Designated Doctor’s letter of causation is a mere recitation of the claimed extent-of-injury diagnoses and is conclusory. Accordingly, that portion of the hearing officer’s finding that the claimant’s right lower extremity myelopathy, arthrosis at L4-5, disc bulge at L5-S1, and aggravation of degenerative disc disease arose out of and naturally flowed from the compensable injury of [date of injury], is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.”
We as Insurance Carrier Attorneys frequently make these and similar arguments with success in Contested Case Hearings at the Division of Workers’ Compensation. Gone are the days of minimal proof of causation with little or no supporting expert opinion evidence. This trend has been favorable for our insurance company clients.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
The Texas statutes prevent a hospital lien from attaching to the following:
Claims under the Texas Workers’ Compensation Act, the Federal Employees Liability Act; the Federal Longshoremens’ of Harbor Worker’s Compensation Act, and claims against railroad companies who own the hospital in which the injured person is treated, § 55.003(b);
Claims against the injured worker’s own insurance policy proceeds, such as uninsured/underinsured motorists’ coverage and PIP. §55.003; Members Mutual Insurance Co. v. Hermann Hospital, 664 S.W.2d 325, 28 (Tex. 1984) (uninsured/underinsured motorists benefits are not subject to statutory hospital lien);
Hospital liens do not attach to proceeds from wrongful death actions, but they do attach to survival actions. They attach only in cases where recovery for personal injury is sought; they do not attach to judgments or awards for wrongful death;
Hospital liens do not attach to the expenses of treatment of medical problems that are unrelated to the accident at issue but which are attributed to the negligence of another person;
A hospital may not recover pre-judgment interest on the amount of its hospital lien, and, where it intervenes in a suit in order to recover its lien, it may not recover attorneys’ fees, either. Hermann Hospital v. Vardeman, 775 S.W.2d 866, 867-868 (Tex. App. – Houston [1st Dist.] 1989, no writ).
The text of the relevant statutory language is below:
Texas Property Code CHAPTER 55. HOSPITAL AND EMERGENCY MEDICAL SERVICES LIENS
PROPERTY CODE
CHAPTER 55. HOSPITAL AND EMERGENCY MEDICAL SERVICES LIENS
§ 55.001. DEFINITIONS. In this chapter:
(1) “Emergency medical services” has the meaning
assigned by Section 773.003, Health and Safety Code.
(2) “Emergency medical services provider” has the
meaning assigned by Section 773.003, Health and Safety Code.
(3) “Hospital” means a person or institution
maintaining a facility that provides hospital services in this
state.
(4) “Person” does not include a county, common, or
independent school district.
§ 55.002. LIEN. (a) A hospital has a lien on a cause of
action or claim of an individual who receives hospital services for
injuries caused by an accident that is attributed to the negligence
of another person. For the lien to attach, the individual must be
admitted to a hospital not later than 72 hours after the accident.
(b) The lien extends to both the admitting hospital and a
hospital to which the individual is transferred for treatment of
the same injury.
(c) An emergency medical services provider has a lien on a
cause of action or claim of an individual who receives emergency
medical services in a county with a population of 575,000 or less
for injuries caused by an accident that is attributed to the
negligence of another person. For the lien to attach, the
individual must receive the emergency medical services not later
than 72 hours after the accident.
§ 55.003. PROPERTY TO WHICH LIEN ATTACHES. (a) A lien
under this chapter attaches to:
(1) a cause of action for damages arising from an
injury for which the injured individual is admitted to the hospital
or receives emergency medical services;
(2) a judgment of a court in this state or the decision
of a public agency in a proceeding brought by the injured individual
or by another person entitled to bring the suit in case of the death
of the individual to recover damages arising from an injury for
which the injured individual is admitted to the hospital or
receives emergency medical services; and
(3) the proceeds of a settlement of a cause of action
or a claim by the injured individual or another person entitled to
make the claim, arising from an injury for which the injured
individual is admitted to the hospital or receives emergency
medical services.
(b) The lien does not attach to:
(1) a claim under the workers’ compensation law of this
state, the Federal Employees Liability Act, or the Federal
Longshore and Harbor Workers’ Compensation Act; or
(2) the proceeds of an insurance policy in favor of the
injured individual or the injured individual’s beneficiary or legal
representative, except public liability insurance carried by the
insured that protects the insured against loss caused by an
accident or collision.
(c) A hospital lien described by Section 55.002(a) does not
attach to a claim against the owner or operator of a railroad
company that maintains or whose employees maintain a hospital in
which the injured individual is receiving hospital services.
§ 55.004. AMOUNT OF LIEN. (a) In this section,
“emergency hospital care” means health care services provided in a
hospital to evaluate, stabilize, and treat a serious medical
problem of recent onset or severity, including severe pain that
would lead a prudent layperson possessing an average knowledge of
medicine and health to believe that the condition, illness, or
injury is of such a nature that failure to obtain immediate medical
care would in all reasonable probability:
(1) seriously jeopardize the patient’s health;
(2) seriously impair one or more bodily functions;
(3) seriously harm an organ or other part of the body;
(4) cause serious disfigurement; or
(5) in the case of a pregnant woman, seriously
jeopardize the health of the fetus.
(b) A hospital lien described by Section 55.002(a) is for
the amount of the hospital’s charges for services provided to the
injured individual during the first 100 days of the injured
individual’s hospitalization.
(c) A hospital lien described by Section 55.002(a) may also
include the amount of a physician’s reasonable and necessary
charges for emergency hospital care services provided to the
injured individual during the first seven days of the injured
individual’s hospitalization. At the request of the physician, the
hospital may act on the physician’s behalf in securing and
discharging the lien.
(d) A hospital lien described by Section 55.002(a) does not
cover:
(1) charges for other services that exceed a
reasonable and regular rate for the services;
(2) charges by the physician related to any services
provided under Subsection (c) for which the physician has accepted
insurance benefits or payment under a private medical indemnity
plan or program, regardless of whether the benefits or payment
equals the full amount of the physician’s charges for those
services;
(3) charges by the physician for services provided
under Subsection (c) if the injured individual has coverage under a
private medical indemnity plan or program from which the physician
is entitled to recover payment for the physician’s services under
an assignment of benefits or similar rights; or
(4) charges by the physician related to any services
provided under Subsection (c) if the physician is a member of the
legislature.
(e) A hospital lien described by Section 55.002(a) is not
affected by a hospital’s use of a method of classifying patients
according to their ability to pay that is solely intended to obtain
a lien for services provided to an indigent injured individual.
(f) An emergency medical services lien described by Section
55.002(c) is for the amount charged by the emergency medical
services provider, not to exceed $1,000, for emergency medical
services provided to the injured individual during the 72 hours
following the accident that caused the individual’s injuries.
(g) An emergency medical services lien described by Section
55.002(c) does not cover:
(1) charges for services that exceed a reasonable and
regular rate for the services;
(2) charges by the emergency medical services provider
related to any services for which the emergency medical services
provider has accepted insurance benefits or payment under a private
medical indemnity plan or program, regardless of whether the
benefits or payments equal the full amount of the charges for those
services; or
(3) charges by the emergency medical services provider
for services provided if the injured individual has coverage under
a private medical indemnity plan or program from which the provider
is entitled to recover payment for the provider’s services under an
assignment of benefits or similar right.
(h) If the physician is employed in that capacity by an
institution of higher education, as defined by Section 61.003,
Education Code, and the lien does not include the amount of the
physician’s reasonable and necessary charges described by
Subsection (c), the physician has a lien on the cause of action in
the same manner as a hospital under this chapter. The lien is
subject to provisions of this chapter applicable to a hospital
lien, and the physician or the physician’s employing institution
may secure and enforce the lien in the manner provided by this
chapter.
§ 55.005. SECURING LIEN. (a) To secure the lien, a
hospital or emergency medical services provider must file written
notice of the lien with the county clerk of the county in which the
services were provided. The notice must be filed before money is
paid to an entitled person because of the injury.
(b) The notice must contain:
(1) the injured individual’s name and address;
(2) the date of the accident;
(3) the name and location of the hospital or emergency
medical services provider claiming the lien; and
(4) the name of the person alleged to be liable for
damages arising from the injury, if known.
(c) The county clerk shall record the name of the injured
individual, the date of the accident, and the name and address of
the hospital or emergency medical services provider and shall index
the record in the name of the injured individual.
§ 55.006. DISCHARGE OF LIEN. (a) To discharge a lien
under this chapter, the authorities of the hospital or emergency
medical services provider claiming the lien or the person in charge
of the finances of the hospital or emergency medical services
provider must execute and file with the county clerk of the county
in which the lien notice was filed a certificate stating that the
debt covered by the lien has been paid or released and authorizing
the clerk to discharge the lien.
(b) The county clerk shall record a memorandum of the
certificate and the date it was filed.
(c) The filing of the certificate and recording of the
memorandum discharge the lien.
§ 55.007. VALIDITY OF RELEASE. (a) A release of a cause
of action or judgment to which a lien under this chapter may attach
is not valid unless:
(1) the charges of the hospital or emergency medical
services provider claiming the lien were paid in full before the
execution and delivery of the release;
(2) the charges of the hospital or emergency medical
services provider claiming the lien were paid before the execution
and delivery of the release to the extent of any full and true
consideration paid to the injured individual by or on behalf of the
other parties to the release; or
(3) the hospital or emergency medical services
provider claiming the lien is a party to the release.
(b) A judgment to which a lien under this chapter has
attached remains in effect until the charges of the hospital or
emergency medical services provider claiming the lien are paid in
full or to the extent set out in the judgment.
§ 55.008. RECORDS. (a) On request by an attorney for a
party by, for, or against whom a claim is asserted for damages
arising from an injury, a hospital or emergency medical services
provider shall as promptly as possible make available for the
attorney’s examination its records concerning the services
provided to the injured individual.
(b) The hospital or emergency medical services provider may
issue reasonable rules for granting access to its records under
this section, but it may not deny access because a record is
incomplete.
(c) The records are admissible, subject to applicable rules
of evidence, in a civil suit arising from the injury.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Back in the day, truck drivers use to drive all over the country with daily stops in the morning to find a payphone so they could call dispatch to let them know of their location and how much farther they had to go to delivery or next pick up.
Then the pager got introduced to the trucking industry as a great new way of communicating with the driver. Wow, beep, beep, and then a number would come across the screen and the driver would find a payphone to call the 1-800 number. When Qualcomms got introduced many drivers didn’t like it because, they felt they were being spied on. What do drivers’ think now that cameras are being put into the truck cab? Not only to look out the windshield, but also looking at the driver as he drives.
Several reasons the trucking companies are giving for this new technology, for safety and data collecting information on drivers reactions as they drive. Whether it be a hard break, accident or bad weather. In some cases it has help some drivers to be better drivers’ because safety was able to see what occurred at the time in question. At times it just a bad habit, other times the driver is doing things against company policy. The company can help the driver by pointing out the bad habit or decide it is time to part ways…
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
In 2013, an enforcement initiative was launched by OSHA focusing on the improvement of safety measures for temporary workers.
OSHA defines “temporary workers” as workers that are supplied to a host employer and paid by a staffing agency. This applies whether the worker’s job is temporary or not. OSHA’s enforcement initiative focuses on identifying temporary workers, evaluating whether they are exposed to any safety hazards, and determining if they have received proper training and protection.
In recent months, OSHA has received a number of reports of temporary workers suffering fatal injuries during their first few days on a job. For example, in December of 2013, an Illinois temporary worker was killed by the forklift he was operating when it fell between the dock and truck. Also in December of 2013, a temporary worker died from a fall after he was caught in a sorter. Lastly OSHA cited Bacardi Bottling Corporation after a 21-year old temporary worker was fatally injured his first day on the job.
Ultimately, OSHA views the protecting of temporary workers as a joint responsibility between host employers and their staffing agency. However, OSHA has shown concern that as a means to avoid meeting all their compliance obligations under the OSH Act and other worker protection laws, some employers are using more and more temporary workers. Temporary workers are often not given adequate safety and health training or explanations of their duties by either the temporary staffing agency or the host employer and are likely more vulnerable to workplace safety and health hazards than workers in traditional employment relationships.
To see article:
https://www.linkedin.com/today/post/article/20140722232211-5310498–reducing-hazards-to-temporary-workers?trk=object-title
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
On Tuesday the Business & Industry Committee of the Texas House held a hearing on the voluntary nature of workers’ compensation in Texas. Some effort to make workers’ comp mandatory is made in every session of the legislature . Some effort to make workers’ comp mandatory is made in every session of the legislature and usually goes nowhere. That may be the case in the upcoming session, but it seems the concept will get a harder look this time. The hearing was due to the interim charge from Speaker Joe Strauss to study the “voluntary” nature of workers’ comp. in Texas….
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Contractors and other professionals in the construction industry are afforded considerable rights and protections under Texas law. Those who provide labor and/or materials often run into problems when attempting to secure payment for work performed, but the Texas legislature has provided a mechanism designed to aid in the collection efforts of contractors and other professionals.
Many are familiar with the term Mechanic’s Lien, but few truly understand the proper procedure that must be followed in order to enjoy the protection it provides. In order to perfect one’s lien rights, notices must be mailed (certified mail return receipt requested) at a series of deadlines in order to make the landowner and other interested parties aware of the fact that a lien is being pursued.
These deadlines depend on a number of factors such as when the work was performed and completed, as well as where you fall in the chain of command (Original Contractor or Sub-Contractor). With so many variables at play, adhering to the deadlines can be and most often is a difficult task. Often times a contractor will lose its lien rights without ever knowing it.
Although you have no way of knowing whether a lien will be required until a significant amount (if not all) of the work has been completed, there are steps which can be taken before work even begins that will minimize the risk of losing your lien rights once its determined that a lien is necessary.
The first such step is to send a Notice of Contractual Retainage Agreement to everyone above you, including the property owner. This will alert the property owner that a sum of money needs to be withheld for payment of your bill. While this notice is not required to perfect your lien, it will eliminate the need for one of the subsequent notices that would otherwise be required. It is important to note that this notice must be sent to the contractor by the fifteenth day of the second month following the date you first provide labor or materials for the project. Also, this notice is only used when you do not have a contractual relationship with the property owner (hired by another contractor).
Another early lien notice is the Notice of Specially Fabricated Materials, which allows you to perfect a lien even if the customer does not receive or use your specially fabricated materials on the project in question. This notice must be sent to the property owner (and original contractor if you don’t have an agreement with the original contractor) by the fifteenth day of the second month following receipt and acceptance of the order for specially fabricated materials.
Additionally, when you execute your contract on any job, it is a good idea to request in writing from the property owner and all parties above you in the chain of command the following:
1. A legal description of the real property being improved;
2. A copy of any contracts executed for the project;
3. A copy of the surety bond, if any, including the name and last known address of the surety; and
4. Whether the real property in question is encumbered by any prior recorded liens or security interests, and if so, the name and last known address of any persons having such lien or security interest.
While these steps will not guarantee any payment or favorable result, they will help simplify the process and expedite payment of any money that is owed. When dealing with issues like the ones addressed hereinabove, it is always a good idea to consult with an experienced attorney who is familiar with Texas lien laws.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
So you’ve been awarded a judgment against the individual or entity that owes you money. Time for them to pay up, right! Unfortunately it is rarely this simple. That judgment you have in your hand certainly has value, but it does not necessarily mean that your recovery efforts are concluded.
As discussed in the previous article, you can obtain from the court an Abstract of Judgment. You can also apply for a Writ of Execution, which allows a Texas sheriff or constable to seize any “nonexempt” real or personal property (cannot be the debtor’s homestead) to satisfy your judgment. However, these remedies are only helpful if your Debtor does in fact own nonexempt property within the state of Texas.
Riding the wave of the internet, companies and individuals alike are making transactions and entering into contracts with out of state customers and suppliers. As a result, it is not uncommon to have a Debtor who owns zero property within this great state. And while you may initially feel great sympathy for the poor soul(s) that have to live somewhere other than Texas, I imagine you ultimately still want to get paid. If so, the Abstract of Judgment and Writ of Execution will not do anything for you.
Thankfully, there is an alternative not confined by state boundaries. In the scenario envisioned above, you can file an application with the court for a Writ of Garnishment. The application must be accompanied by an active judgment and an affidavit stating that, to your knowledge, the Debtor does not possess property in Texas subject to execution and sufficient to satisfy the judgment.
Once issued, the Writ of Garnishment will allow you to acquire property owned by your Debtor while it is in the possession of a third party; and you are not limited to real property. This means that funds held by a bank in the Debtor’s name can be garnished to satisfy your judgment. For obvious reasons, a Writ of Garnishment can be a very effective tool when attempting to enforce a judgment, but as one might expect, there are specific rules and procedures that must be followed. For this reason I encourage you to seek legal counsel from a lawyer with significant experience handling collection matters before initiating a garnishment action.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
In the insurance business, claims are the most significant expense. This is why the prompt yet efficient processing of claims is the paramount consideration for insurance companies and third party-administrators. Successful companies recognize that with each claim comes an opportunity to minimize losses. However, this can be a difficult task when the company is put at odds with its insured. The good news is that by subjecting each claim to a series of filters the claim process can still allow a company to effectively serve both the interests of its customer, as well as that of its own.
One effective filter that is often used in the early stages of the claim process is an Examination Under Oath (EUO). When a company wants a thorough investigation or desires answers to questions for which the claimant only provides a vague response, an EUO can provide a cost –conscious method for collecting valuable information.
A timely EUO will allow the company to address the issue of fault and can be extremely helpful when a company suspects a false claim. EUO’s can typically be conducted in a matter of hours, and will often reveal information or evidence that would otherwise only be obtainable during litigation. As a result, it is common for claims in which an EUO is conducted to be resolved long before litigation would otherwise arise.
The concern with EUO’s is that the scope can become too broad. This type of questioning should not be performed by individuals unfamiliar with the process or the rules by which the game is to be played. The questioning can quickly become harassing if not confined to the issues and subject-matter that is relevant to the underlying claim.
Although not required, it is recommended that EUO’s be left to experienced insurance defense counsel. Lawyers who regularly engage in this type of questioning possess the ability and temperament needed to maximize the value of this loss minimizing opportunity.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
In Stickland v. Medlen, 397 S.W.3d 184 (Tex. 2013), the Texas Supreme Court addressed whether an aggrieved party may recover non-economic damages for the wrongful death of a pet or animal. Under the facts of that case, the family dog was accidentally euthanized by an animal shelter, and the plaintiffs filed suit, alleging that the loss of the dog had caused “sentimental or intrinsic value” damages. The Supreme Court rejected the plaintiff’s theory, and focused the right of recovery on economic impact, rather than emotional loss.
The Court relied on the over a century old decision in Heiligmann v. Rose, 16 S.W. 931 (Tex. 1891), which held that the value for the death of a dog was restricted to “market value, if the dog has any” or some “special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog.” But Heiligmann v. Rose tied “special value” to a dog’s economic attributes, not to emotional or otherwise subjective factors. This 1891 interpretation has stood the test of time, as is reflected most recently in the Strickland v. Medlin decision. Same Old Dog, Same Old Case.
The Court in Stickland v. Medlen emphasized the importance of animals in our society by stating “…that is precisely why Texas law forbids animal cruelty generally (both civilly and criminally), and bans dog fighting and unlawful restraints of dogs specifically—because animals, though property, are unique.” The Court also made reference to a comment from the Restatement (Third) of Torts as follows: “Recovery for intentionally inflicted emotional harm is not barred when the defendant’s method of inflicting harm is by means of causing harm to property, including an animal.” Ultimately, however, the Court decided that the common law in Texas does not provide for the recovery of emotional loss damages in this situation.
The Court’s opinion puts forth common law principles and public policy concerns in its rationale. Fundamentally, the Court found that animals and pets are property. The Court made the point that emotional distress is typically not recoverable for property damage, but is rather more suitable to recovery for personal injury damages caused to human beings. In short, animals are not humans. While this approach by Texas courts has been the source of debate for years, it seems that the old is new again when it comes to the analysis of emotional damages and pets.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
In a case grounded in allegations of defamation, The Texas Supreme Court addressedthe minimum amount of proof necessary to support damages for mental anguish. The case of Hancock v. Variyam, 400 S.W.3d 59, 62 (Tex. 2013) involved a defamation suit relating to a letter written by a medical doctor alleging that another doctor had a “reputation for lack of veracity” and “deals in half truths.” The trial court ruled that the letter was defamatory per se and the jury awarded damages, including a total of $30,000 for mental anguish, past and future. The defendant doctor appealed, attacking the legal sufficiency of the mental anguish damages. Plaintiff’s testimony at trial had been that he was embarrassed, anxious, and could not sleep. The Supreme Court stated “There is no evidence of mental anguish because evidence that (Plaintiff) experienced some sleeplessness and other anxiety does not rise to the level of a substantial disruption in his daily routine or a high degree of mental pain and distress.” The court therefore held that the plaintiff doctor failed to prove that he suffered a substantial disruption in daily routine or a high degree of mental pain and distress. Also, the plaintiff must additionally show the nature, duration, and severity of the mental anguish.
The court referenced an older Supreme Court case styled Parkway Co. v. Woodruff, 901 S.W.2d 434, 443 (Tex. 1995) and stated that the plaintiff had not come forward with sufficient proof of actionable or compensable mental anguish. In Parkway v Woodruff, the court had found no evidence of mental anguish damages where the plaintiff had testified that he had “a lot of anguish, a lot of grief” and disappointment and humiliation because they did not rise to the level of a high degree of mental pain and distress or indicate a substantial disruption of his daily routine; Parkway, 901 S.W.2d at 445. The Parkway v Woodruff court had held that “anger, frustration, or vexation . . . do not support the conclusion that these emotions rose to a compensable level”.
Although the Hancock v. Variyam case happened to involve allegations of defamation, the Supreme Court’s interpretation of what is required to prove mental anguish damages has a broad effect across a wide spectrum of causes of action and practice areas. Mental anguish damages can arise in employment law matters, personal injury lawsuits, non-subscriber litigation and elsewhere. It is expected that this decision will continue to impact the way that mental evidence damages are pled, presented, and defended in Texas civil litigation for years to come. The Hancock v. Variyam decision was not entirely surprising, given some of the older case law. But it very squarely served notice to plaintiff lawyers not to try to come forward with evidence that lacks something of a “magic word” threshold. And to those of us defending lawsuits on behalf of employers, businesses and insurance companies, we have some fresh case law to help defeat those marginal mental anguish claims that we frequently see.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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