What does “Network” doctor mean in Workers’ Comp?

Work Comp Network DoctorThere has been much confusion as to what doctors an injured worker can or can not treat with. Many insurance companies offer Network doctor’s to which you must choose from in order to receive treatment under workers’ comp. Usually, the first doctor you see, if in network, becomes your doctor for all future treatments. Most networks allow for a one-time change, but it must be approved by the network or adjuster.

This has been a huge headache and a source of confusion for many injured workers. Often times we find that the list of doctors provided are only the Doc-in-the-box chains, that are not equipped to handle ongoing issues or different levels of therapy. Unfortunately, not much can be done if you are stuck in the network scenario, and unhappy with your medical provider. In order for a provider to be paid by the insurance carrier, they must be in the network.

If you have an insurance carrier that is not in a network, you may see any provider that accepts workers’ comp claims. You are allowed to change doctors, but must submit a form to the Division, and it must be approved before you start treating with the new doctor.

Always ask the adjuster if your case falls under a Network, and if so, what is the name of the network. This helps us to see if we are able to help suggest other doctors in the network that may be able to treat you. Give our office a call today if you need help understanding your workers’ comp case.

Equifax Reveals Additional Breach of Security | Employees Face Insider Trading Charges

Equifax Updates

Additional Victims of Breach Disclosed

Last fall, we discussed the legal ramifications of the data breach at credit reporting giant Equifax. At the time, it was believed that the security compromise had potentially affected approximately 143 million consumers across the United States. In the months since the disclosure first went public, that number has risen—the best current guess adds approximately five million more potential victims. Many of the consumers now considered to have been subject to the breach were not previously identified because their Social Security numbers had not been stolen. Equifax has now disclosed that approximately 2.4 million consumers had their names and drivers license information compromised.

In the aftermath of the data breach disclosure, Equifax offered free credit monitoring for a year, but initially insisted that any consumers who suffered financial loss be required to submit to binding arbitration. After much criticism, the company dropped that requirement. In response, more than two hundred lawsuits were filed across the United States, all seeking class action status. Those claims have all been consolidated into a single proceeding in Atlanta, Georgia, where Equifax maintains its corporate headquarters. As of August, 2018, the Atlanta court has not certified the class action.

If you are uncertain whether you have been affected by the breach, you can try to go the Equifax website for verification. According to company sources, the website should allow you to enter your last name and certain Social Security information, and allow you to determine if your information was compromised. It’s important to note, though, that anyone who had just name and drivers license number stolen will not show up as compromised on the Equifax website. In addition, there have been significant problems with the website, which is frequently not functioning. You can also call 866-447-7559 to verify if you were affected.
 

Equifax Employees Face Insider Trading Charges

Though Equifax knew about the data breach as early as May, 2017, company officials did not disclose the information publicly until the end of July, 2017. It now appears that some Equifax employees used that information to dump company stock before it declined in value. At least two employees have been charged with insider trading, illegally using information not available to the public to avoid losses on the sale of company stock. The employees, a software engineering manager and the company’s chief information officer, apparently liquidated more than $1 million worth of company stock and one of the men bought stock options that would increase in value if the company’s stock went down.
 

Contact Us

At the law office of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas class action attorney, send us an e-mail or call our offices at one of the convenient locations listed below. Our phones are answered 24 hours a day, seven days a week.

Who Has Liability When My Child Is Injured in a School Bus Accident?

Yellow School Bus Accident

Establishing Responsibility after a School Bus Crash

It’s a parent’s worst nightmare—you put your child on the school bus every day and you trust that the driver will exercise good judgment and reasonable care, and that your children will be safe. The good news—your children are pretty safe, according to the National Highway Traffic Safety Administration—less than one half of one percent of all motor vehicle accidents every year involve “school transportation” vehicles, and more than 90% of the serious injuries suffered in those accidents were to students on a bus. But what if your child was one of the few that did suffer injury? What are your options? How do you go about getting full and fair compensation for all your losses?

The Different Types of School Bus Claims

Though many school bus accidents involve collisions with other vehicles, there are other types of mishaps that can cause serious injury, including:

  • Slips and falls on wet steps onto a bus
  • Injuries sustained, including whiplash and similar soft tissue trauma, when a school bus makes a sudden start or stop
  • Injuries suffered when a school bus takes a turn or corner at too high a rate of speed
  • Injuries to pedestrians hit by a school bus at or near a bus stop

Determining Fault in a School Bus Accident

In a school bus accident claim, as with any personal injury claim based on negligence or carelessness, one of the first things you’ll need to do is show that someone failed to exercise a reasonable standard of care, and that their failure caused injury or loss. With respect to a school bus crash, there can be a number of potentially responsible parties:

  • The bus driver—You may be able to show that the bus driver failed to act as a reasonable person would. The bus driver may have been speeding, may have been driving without adequate rest, may have been taking medication that impaired his or her ability to drive and respond, or may even have been under the influence of drugs or alcohol. In addition, the driver may have ignored traffic laws or failed to take roadway or weather conditions into account
  • The school or school system—You may be able to demonstrate that the school/school district failed to properly train the driver or to ensure that that driver had appropriate licenses or certifications. The school may have failed to examine the driver’s record to determine whether he or she had a history of careless driving. The school district may also have failed to properly monitor and maintain the bus, leading to mechanical problems that caused or contributed to the accident.
  • The manufacturer, designer, or seller of the bus—If the bus had design or manufacturing flaws that caused or contributed to the accident, you may be able to file a product liability claim against anyone in the chain of distribution.
  • Other motorists—Did another motorist violate traffic laws, causing or contributing to the accident. There doesn’t necessarily need to be any impact. Did the bus driver have to take evasive action or slam on the brakes, causing injury to passengers on the bus?
  • Roadway defects—Was the accident caused by the failure of a municipality to monitor and maintain its roads? If the accident happened on school property, did the school/school district improperly fail to maintain the premises?

Contact Us

At the law office of Bailey & Galyen, we offer a free initial consultation to every client. For an appointment with an experienced Texas personal injury attorney, contact us by e-mail or call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.

New Supreme Court Decision May Help Reopen Old Deportation Orders

New Supreme Court Decision May Help to Reopen Old Deportation OrdersWhen the U.S. Supreme Court issued their most recent decisions last June, their decision in Pereira v. Sessions gave new hope to individuals that are currently barred from legally immigrating due to an old removal (deportation) order. In that decision, the Court ruled 8-1 that a Notice to Appear (NTA), the document that places an alien in removal proceedings and under the jurisdiction of an immigration judge, is not valid if it does not list a specific date, time and place when and where the alien, who is the subject of the NTA, must present him or herself in court.

This is potentially very good news to many thousands of people whose removal was ordered under such a defective NTA. The Supreme Court’s ruling offers an avenue for those with removal orders to seek reopening and termination of those orders. Further, it can be argued that the immigration court never had jurisdiction over their case in the first place. Therefore, their removal orders are also invalid just like the NTAs that placed them in removal proceedings.

In the Pereira decision, the alien seeking review by the Supreme Court argued that his NTA was defective, so he was eligible for relief, a 42B Cancellation of Removal, before the immigration court. This relief, if approved, can grant the alien lawful permanent resident status.

42B cancellation is available to certain non-permanent residents who have either a U.S. citizen or lawful permanent resident spouse, minor children or parents (known as “qualifying relatives), have no disqualifying criminal history which makes them ineligible for relief, and who have resided continuously in the United States for at least 10 years.

Filing an NTA with the court “stops time” for continuous residence in the United States. As a result, many aliens, like Pereira, who meet the first two requirements—no serious criminal history and a qualifying relative— are unable to meet the third requirement of 10 years or more of continuous physical presence in the U.S. because the NTA was issued before they hit the decade mark.

Pereira argued that because his NTA was defective, lacking a specific place and time to appear in court as required by regulation, his “clock” never stopped, and he continued to accrue time toward the 10 years required for 42B cancellation. Therefore, he argued, he was eligible at the time of his removal proceedings for relief. The immigration judge did not agree with Pereira’s contention and ordered him removed. Pereira appealed the judge’s decision to the Board of Immigration Appeals (BIA), which agreed with the immigration judge and dismissed Pereira’s appeal.

Pereira then filed a Petition for Review the BIA’s decision with the 1st Circuit, which agreed that the language in the statute governing the proper service of an NTA was ambiguous, but the court deferred to the BIA’s interpretation of the statute. Pereira’s next stop was the Supreme Court, which accepted the case for hearing before the nine justices.

As stated above, eight of the nine Supreme Court Justices agreed with Pereira. In their decision, issued on June 21, 2018, the Court found that an NTA for a removal hearing that does not specify the time and place of the hearing does not trigger the stop-time rule. Writing for the Court, Justice Sonia Sotomayor reasoned that an NTA that does not specifically state both “when” and “where,” as required by regulation, cannot reasonably be expected to result in a person appearing at their hearing.

The Court’s decision made it possible for Pereira to file a Motion to Reopen and/or Reconsider his removal order to seek termination of the proceedings against him or, in the alternative, to seek the 42B relief for which he argued he was eligible all along. For thousands of others, this ruling may make it possible to get a second chance at relief, such as 42B cancellation, which would not have been available to them at the time they were ordered removed by the immigration judge.

Perhaps many of those ordered removed have since married U.S. citizens or had U.S. citizen children, making them now eligible for new relief before the court. A Motion to Reopen or Reconsider based on a defective NTA, if in fact their NTAs were defective, may be the miracle they’ve needed to sort out their immigration status.

For those who would like to investigate this new avenue of relief, a quick check of their NTAs will reveal whether or not it was valid; the bottom left-hand side of the document should list a specific date and time to appear in court. However, if it reads “to be set” where the date and time should be included, the NTA is defective under the Pereira holding and may be the basis for a motion to the court or the BIA, whichever entity last had jurisdiction over the case. If individuals with old removal orders no longer have their NTAs, they can file a Freedom of Information Request (FOIA) with the Executive Officer for Immigration Review (EOIR) and/or ICE to obtain a copy.

Because the Pereira decision came down so recently, immigration practitioners (including immigration judges) are still uncertain about how the Supreme Court’s decision will be interpreted by the lower courts. At the moment, ICE attorneys are arguing that the Court’s decision was “narrow” in scope and applies only in the context of the “stop time” rule governing eligibility for 42B cancellation.

However, many immigration attorneys disagree; if an NTA is invalid because it lacks a specific date and time for a hearing, then it is invalid, period. If a defective NTA fails to “stop the clock” in the context of 42B because it was improperly filed and did not give the immigration judge jurisdiction over the alien charged, then it is defective across the board for all aliens said to be placed in proceedings by an alleged NTA.

It is important to review qualifying cases with defective NTAs and take action on them as soon as possible, while things are still in flux; waiting too long to file a Motion to Reopen or Reconsider and Terminate may jeopardize an alien’s ability to do so later.

If you think your order of removal, or that of a loved one, was issued in error due to a defective NTA, please do not hesitate to speak to an immigration attorney regarding your case.

The Statute of Limitations in Texas Criminal Prosecutions

Criminal Defense Statute of Limitations

Are There Time Limits on When a Criminal Case Must Be Initiated?

There’s a longstanding principle in our legal system, known as the “statute of limitations,” that sets limits on the amount of time that may pass before a civil lawsuit is filed or a criminal prosecution commences. In this blog, we will focus specifically on the rules governing criminal actions.

There are a number of sound reasons for having a statute of limitations in place:

  • The more time that elapses between the alleged commission of a crime and the prosecution of that offense, the greater the risk that evidence will be lost. Witnesses may move or die, and memories fade. Requiring that the case be presented within a certain amount of time promotes an outcome based on a clearer recollection of the facts.
  • Without a statute of limitations, a person suspected of criminal behavior would have to live constantly with the possibility of prosecution hanging over his head. This is generally considered patently unfair, although may not be considered so for certain serious crimes.

The Statutes of Limitations for Crimes in Texas

Under Article 12 of the Texas Code of Criminal Procedure, the various statutes of limitations for the different criminal offenses are set forth. Under the rules, if the prosecution fails to file its case within the specified time, the defendant can no longer be prosecuted.

The time period specified for prosecution varies, based on the type and severity of offense. It’s also important to understand that, although a specific time period may be set forth in the statute, the period of time can be “tolled,” or suspended, in certain situations. In such a scenario, the clock will not run on the prosecution. For example, in Texas, the statutory period will be suspended if the defendant was not present in the state (and thereby not subject to the jurisdiction of the court. “The statute of limitations will also be paused if the defendant was already under indictment for “the same conduct, same act or same transaction.”

As a general rule, a misdemeanor charge in Texas must be filed within two years of the date of the offense. As the offense becomes more serious, the statutory period is extended. Theft, kidnapping and fraud offenses generally carry a 5 year statute of limitations, although there are a number of other non-violent crimes with 7 year periods, including money laundering, tax code violations and criminal conduct by fiduciaries. For sexual assault, compelling prostitution, human trafficking, forgery and certain theft crimes, the statute of limitations goes up to 10 years.

There are, however, a number of crimes for which there is no statute of limitations, including:

  • Murder or manslaughter
  • Many types of sexual assault, including sexual assault of a child, serial sexual assault and indecency with a child
  • Leaving the scene of a fatal traffic accident
  • Human trafficking of a child or continuous human trafficking
  • Compelling a person under the age of 18 into prostitution

Contact the Experienced Criminal Defense Attorneys at Bailey & Galyen

At the law office of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas criminal defense attorney, contact us by e-mail or call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.

Changes to the Family Code

Changes to the Family CodeIt’s almost September and a new legislative year, which means there are changes coming. One of the biggest this year is the change to the medical support provisions.

Until now, parents were only required to carry medical insurance as part of the child support provisions. Effective September 1, they are also required to carry dental insurance on their children. Additionally, parents are required to cover the unreimbursed portion of dental care on a 50 – 50 basis just as they have always been required to do for unreimbursed medical care.

Additionally, beginning September 1, if the parties vary from the guidelines, the court order will be required to have a guidelines page. This requirement has always been a good practice, but it has not always been the law in Texas (it has always has been the law for IV-D cases). The parties and the court are free to vary from guidelines, and Texas Family Code 154.128 lists several reasons for doing so. Beginning September 1, parties will be required to explain why the variance on the guidelines page. Both parties will benefit from this requirement because it will be easy to determine what changed if there is a material and substantial change in the circumstances of the parties or the child (the standard required to modify child support).

Another important topic is the relationship between the client and the paralegal. We understand that clients often want to talk to their attorney, after all they’re the one you hired to handle your case. In fact, when you hire an attorney, you actually hire a whole team that is here to help you. Sometimes, your attorney is in court or mediation, so we want you to be comfortable communicating with the whole team. Additionally, many of your questions can be handled by a paralegal.

Whenever you have a question, take the time to gather your thoughts, think your issue through and write them down in an email or message in the private client portal (if your attorney’s office offers one). Send your questions to both the attorney and the paralegal. Much like a doctor’s office, where the nurse handles many of the tasks, the paralegal handles many of the tasks in a law office. Not only are you likely to get your answer more quickly, most of the time the charges for a paralegal’s time are less than an attorney. Further, thinking through your issue is important because you might end up sending several emails and being charged for each one rather than only one or two.

Anytime you hire a legal team to represent you, it will cost money. Sometimes, it may take longer and cost more than you originally hoped or planned. But, with some little adjustments, you can reduce your costs and walk away happier with the process. At Bailey & Galyen, we want to help you get the best legal representation while still staying within your budget.

Five Times When A Will Isn’t What You Intended

Last Will and TestamentYou have a Last Will and Testament, or so you think. Here are 5 situations when your best intentions fall flat:

  1. When it is not the Last Will and Testament
  2. When it doesn’t distribute your assets
  3. When it is not executed with “testamentary formalities” in accordance with the law
  4. When it can’t be located
  5. When the statute of limitations runs

If you don’t have your estate planning documents properly drafted and executed, you can end up with fatal flaws in the documents. I recently assisted a family with their father’s estate and upon reviewing the will, I realized that he had copied an old will and skipped a paragraph. The paragraph he skipped was the one that distributed his assets. More common is the document that is improperly executed. The family thought that perhaps the notary public knew how to execute the documents and would catch any mistakes. This was a false assumption.

If a will can’t be located or a previous document is located and assumed to be the last one, we have failed to accomplish our task. A copy of a will is not a will, and a previous document rarely expresses the intentions of the deceased. The fifth item on our admittedly limited list is the statute of limitations. Four years after a person dies, his/her will dies. We encourage you, read that implore and beg, to schedule an appointment to discuss an estate within a few weeks after a death. There are strategies and advice that may differ from that offered by well-meaning friends, bank employees, bridge partners, people in other jurisdictions, people who have been on the internet, etc. Mr. Bailey has a well-earned reputation for giving wise counsel in challenging times. Give us a call.

Social Security is Extending the Attorney Advisor Program

Social Security is Extending the Attorney Advisor ProgramThe Attorney Advisor Program allows certain staff attorneys to conduct certain prehearing proceedings and issue certain fully favorable decisions on the record (OTR), when appropriate. The Attorney Advisor Program was originally enacted as a two-year temporary program in 2007 and has been continually extended ever since. An attorney advisor may issue a fully favorable OTR decision when a claimant’s severe impairment meets a prescribed listing or when the claimant is at least 50 years of age and is unable to make an adjustment to other work. If an attorney advisor issues a fully favorable decision, then the case will be awarded and closed. If a fully favorable decision cannot be reached, the attorney advisor will document the reasons why a decision cannot be issued, and the case will proceed to a hearing.

On the record decisions issued by attorney advisors are one component of the Social Security Administration’s (SSA) backlog-reduction plan, Compassionate and Responsive Service (CARES). Unfortunately, although the program has been extended, the drafting efforts have been put on hold because the SSA has assigned all qualified staff to write decisions on cases that have already had administrative law judge (ALJ) hearings. In fact, as of the end of May 2018, attorney advisors had not written a single decision this fiscal year. However, if a claim is deemed appropriate, your Bailey and Galyen attorney can prepare and draft an OTR request to be reviewed by an ALJ or an attorney advisor.

While this can be a useful tool to expedite a favorable decision, a careful analysis of each claim must be undertaken to determine if such a request is appropriate. If you are over the age of 50, please contact our office to determine your eligibility for the expedited processing of your social security claim.

Now, more than ever, it is crucial that you have an experienced knowledgeable attorney on your side when applying for disability. If you are hurt, injured or otherwise impaired and find yourself unable to work, please contact us at Bailey and Galyen for a free case evaluation.

BUDGETING 101

Budgeting 101 Bankruptcy LawAfter 18 years practicing bankruptcy law, I am still amazed that clients often do not understand the importance of monthly budgeting. For individuals facing bankruptcy, a solid, realistic monthly budget will usually be the difference between success and failure. The purpose of budgeting allows you as an individual, or family, to prioritize and control spending. This allows you to focus on the expenses that matter most: housing, transportation, food, clothing, insurance, taxes, etc. Below are some helpful tips to get you started even if you are not facing bankruptcy!

Write it down:

This point simply cannot be emphasized enough. If you are not writing it down (or using an app or spreadsheet, stone tablet, whatever), you are not holding yourself accountable.

Example:

  • Rent $1,250
  • Car Payment $475
  • Food $400
  • Gas $125
  • Tolls $25
  • Insurance $85

Track your spending:

You do not have to list or write down every penny you spend. In fact, trying to accomplish this goal usually ends in frustration and giving up (I speak from personal experience!). Instead of tracking spending, try putting aside a certain amount of funds for other items that are not a fixed cost. For example, $100 a month for “Shopping.” Try the cash envelope method and put aside $100 cash marked “Shopping,” when that cash is gone, so is spending for shopping.

Prioritize:

Try the 50/30/20 Plan as recommended by Senator Elizabeth Warren* where 50% of your income goes to necessities; 30% lifestyle choices, and 20% to savings. Although this may seem like a daunting task, it is doable.

If you find yourself unable to meet all your financial requirements despite setting up a budget and adhering to it, maybe filing bankruptcy is necessary. In a Chapter 13, you will be required to pay certain creditors but how much depends on your income, type of creditor, and amounts owed. Let us work for you to review your budget, evaluate if a bankruptcy is what you need and get you back on track to financial stability.

*Rob Berger, 7 Tips for Effective and Stress-Free Budgeting Forbes Online

Tips for Reporting a Workplace Injury, No Matter How Minor

Workers’ Compensation InjuryAlways, always report any injury you sustain on the job—no matter how minor! A lot of people think, “Let me see if it will get better.” This is a bad idea. I had a client get scratched on the job, and he thought nothing of it. Weeks later, he was in the hospital with an uncontrollable infection that required amputation of the affected body part!

By law, you have 30 days to report a work-related injury to your employer from the date that you realized you sustained the injury, so the sooner you report your injury the better. If you wait too long, one of the first issues to arise will be, “What took you so long to report it?” If you fail to report your injury to your employer within 30 days of knowing about it, your worker’s comp claim will be barred. At that point, there is nothing an attorney can do to help you.

How do you go about reporting your injury? You must report it to someone who is higher up than you—not a co-worker at your same level. It must be a foreman, boss, supervisor, or HR representative. Keep proof of when, and to whom, you report the injury. If you make your report verbally, you risk having the employer come back later and say, “Nope, you never told me about it.” Then, without proof, it becomes a spitting contest as to who said what to whom.

Here are some ways to report your workplace injury, no matter how minor:
– Notify your employer in writing, in a way that provides you with proof of notification, such as fax, email, or any kind of mail service with delivery confirmation.
– Notify your employer in person, but make sure other people are present to “witness” it.
– If your injury requires a doctor’s visit, bring the doctor’s note to your employer, using one of the above methods to ensure you have proof of delivery and notification.

When you provide notice of your injury, you must clearly indicate that it was sustained on the job. It’s not sufficient to state, “My back hurt this morning, so I am going to see the doctor,” or call in sick the next day. Your notice must specifically state what happened, and when, where, and how it happened. Never assume your employer will or should know what you mean. You must spell everything out.

These are just a few things to follow to be sure you effectively notify your employer of any workplace injury. If you have questions, keep us in mind, as we are always here to help!

Bayer Pulls Essure Birth Control Product from Market

Bayer Essure

Withdrawal of Product Precedes Critical Documentary

Citing poor sales, as well as “inaccurate and misleading publicity” regarding its non-surgical permanent birth control device marketed under the name Essure, Bayer has announced that it will stop selling the product at the end of the year. The decision comes on the heels of an order from the U.S. Food and Drug Administration (FDA), issued in April, which significantly restricted sales of the device. The announcement also anticipates The Bleeding Edge, a documentary from Netflix that chronicles the side effects that have been reported by users of the Essure product.

At Bailey & Galyen, we have extensive experience protecting the rights of individuals who have suffered injury because of the poor design, manufacture or malfunction of a medical device. To schedule a free initial consultation to discuss a potential claim for damages caused by the Essure device, contact our office online or call us at 844-402-2992.

The Essure device, the only non-surgical contraception device currently on the market, involved the insertion of a metal coil into each fallopian tube, causing scar tissue to develop. The scar tissue creates a blockage, which is intended to prevent conception. The product was developed by Conceptus Inc. and received FDA approval in late 2002. While a 2009 review of the device found that it appeared to be effective, critics have alleged that the study was based on short-term studies only. Over the last five years, increasing controversy has centered on the device, with thousands of users claiming serious side effects, and many undergoing surgical extraction.

As of July 2018, more than 16,000 lawsuits have been filed, alleging a wide range of health problems, including fallopian tube perforation, serious pain and bleeding (some requiring hysterectomies) and even some deaths. While the company originally reported a failure rate of less than 1 percent, there have been hundreds of claims of unintended pregnancies in the past couple years. The device has also been linked to:

  • Nausea and vomiting
  • Allergic reactions
  • Rashes
  • Autoimmune disease-like symptoms
  • Back and joint pain
  • Numbness and tingling in extremities
  • Anxiety and depression, including thoughts of suicide
  • Weight gain
  • Hair loss

An FDA news release issued April 9, 2018, referenced the reports of pain and perforation and also expressed concerns that the coils could migrate from the fallopian tube to the pelvis or abdomen. FDA Commissioner Scott Gottlieb, M.D., stated, “We’ve been closely evaluating new information on the use of Essure, and based on our review of a growing body of evidence, we believe this product requires additional, meaningful safeguards to ensure women are able to make informed decisions about risk when considering this option.” Gottlieb further stated:

  • We take the concerns of all women affected by Essure very seriously. I’ve personally had the opportunity to meet with several women and hear their important concerns about this product. Despite previous efforts to alert women to the potential complications of Essure, we know that some patients still aren’t receiving this important information. That is simply unacceptable. Every single woman receiving this device should fully understand the associated risks.

The April order mandated that Bayer take additional steps to “provide reasonable assurance of the device’s safety and effectiveness.”

In all public statements surrounding the withdrawal decision, Bayer has insisted that liability issues and potential health risks tied to the product have not been a factor. A spokesperson said the “voluntary discontinuation” was “not indicative of safety issues,” and Bayer emphasized that it “stands behind the product’s safety.” However, the FDA says that, as of early 2018, more than 26,000 complaints have been logged with the agency related to the product, and that Bayer had another 11,000 complaints that it received directly.

Contact the Experienced Criminal Defense Attorneys at Bailey & Galyen

At the law office of Bailey & Galyen, we provide a free initial consultation to anyone with a potential Essure-based injury claim. To set up an appointment with an experienced Texas personal injury attorney, contact us by e-mail or call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.

Swimming Pool Accidents

Swimming Pool Accidents

The Responsibilities and Potential Liability of Property Owners

It’s been a hot summer and it’s not over yet. In Texas, there’s little that can take the edge off a sweltering day than a dip in the pool. But having a pool comes with responsibility…it’s an inherently dangerous luxury, with thousands of people suffering serious injury or even death in swimming pools every year. Texas leads the nation in the number of accidental deaths in swimming pools every year. What are the legal duties that are imposed on pool owners in Texas and what is the potential liability for a pool-related injury?
 

General Duties of Pool Owners

The general duties of pool owners are similar to those of property owners and managers, based on what are known as “premises liability” principles. Under the legal concept of premises liability, the owner or person exercising physical control over real property (property managers and tenants can be liable) has a duty to reasonably monitor and maintain the premises in a way that minimizes the risk of injury to persons legally on the property.

The duty varies based on the legal status of the visitor. There is typically no duty to a trespasser, someone who is on the property illegally or without permission. A licensee has the permission of the owner, but is on the premises for his or her own benefit. This would include visitors to a public pool or persons visiting a friend’s pool. An invitee, however, is on the property to benefit the owner. If there’s a fee to use the pool, the person using it would be considered an invitee. There’s generally a higher duty to an invitee than to a licensee. With respect to a licensee, there’s a duty to take reasonable care of the premises. With an invitee, there’s the additional requirement that the property be monitored and inspected on a reasonable schedule.

There’s another concept, applicable in Texas, which can impose liability on swimming pool owners for injuries or deaths suffered by children around swimming pools. Under the premises liability laws in Texas, a swimming pool can be considered an “attractive nuisance,” something that can unreasonably draw the attention of small children, who don’t have the capacity to understand the inherent dangers. Accordingly, pool owners must take additional precautions to keep small children from obtaining unsupervised access to the pool.
 

The Requirements of Pool Owners in Texas

Under Texas law, all public pools must provide some type of signage, whether or not there’s a lifeguard on duty. If there’s a lifeguard, there must be signs regarding where diving is prohibited and where the pool’s chlorine room is located. If no lifeguard is on duty, the pool must also post the following additional signs:

  • A warning that there is no lifeguard
  • An admonition that children should not use the pool without adult supervision
  • Directions to an emergency telephone
  • A sign that tells visitors to call 911 in the event of an emergency

There is no requirement in Texas that owners of private pools post any signage.

Texas law also requires public pool owners to enclose the pool with a fence or similar barrier. See Section 265.200 of the Texas Administrative Code for specific requirements. The pool fence requirements for private pool owners in Texas are established by local ordinance.
 

Contact Us

At the law office of Bailey & Galyen, we offer a free initial consultation to every client. For an appointment with an experienced Texas personal injury attorney, contact us by e-mail or call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.

Legal Rights for Undocumented Immigrants

Immigration LawI often am asked what rights undocumented immigrants have in the United States. Many assume they have no rights; however, all persons living in the United States, regardless of immigration status, have certain protections.

In 1896, the U.S. Supreme Court held that, under the Fourteenth Amendment to the Constitution, all people living in the United States, including non-citizens, are entitled to equal protection under the law and cannot be deprived of life, liberty or property without due process of law. Wong Wing v. United States, 163 U.S. 228 (1896). Additionally, all persons physically present in the United States, regardless of immigration status, have the Fourth Amendment’s protection against unlawful searches and seizures and the Fifth Amendment’s privilege against self-incrimination.

So what does this mean for immigrants? It means that, like everyone else, an undocumented immigrant has the right to refuse an Immigration and Customs Enforcement (ICE) officer entry to their home unless the officer has a valid search warrant signed by a judge. Interestingly, ICE officers almost never have a valid search warrant when they approach the home of an undocumented immigrant. They rely on the fact that most undocumented immigrants will not know their rights.

Undocumented individuals who unknowingly allows ICE officers into their home still have the right to remain silent when questioned about their immigration status or country of birth. Why? Because answering such questions would be self-incrimination. It may seem ludicrous that a person does not have to answer questions as to their immigration status, but answering such questions can subject the person to removal (“deportation”) proceedings. Also, many people do not know that ICE has the burden to prove a person lacks lawful immigration status. By remaining silent, an undocumented individual holds ICE to its burden of proof, and ICE must produce evidence showing the person’s unlawful immigration status. As with criminal defendants, an undocumented immigrant is innocent of lacking lawful status until ICE proves otherwise.

This background helps illuminate why Texas’s SB4 “show me your papers” bill has been so controversial. Pending a ruling by the Fifth Circuit Court of Appeals, SB4 has not fully gone into effect, but it is a move by the State to impose stricter rules than those mandated by the federal government, and it infringes on the constitutional rights of all persons in Texas.

What happens if ICE meets its burden and proves an individual is in the country unlawfully? Immigrants do not have the right to enter the United States unlawfully, but, once here, they are entitled to equal protection and due process under the law. This means that an individual facing removal is entitled to a hearing before an immigration judge to determine eligibility for relief from removal. The term “relief” refers to certain remedies available under the Immigration and Nationality Act (INA) for immigrants facing removal. Additionally, all persons in removal proceedings have the right to an attorney (but not at government expense), reasonable notice of the charges against them, notice of the place and time of the hearing, the opportunity to examine the evidence and witnesses presented against them, interpretation for non-English-speaking individuals, and clear-and-convincing proof that the government’s charges are valid.

Search and Seizure in Texas—The Basics

Search and Seizure

Understanding Your Rights under the Fourth Amendment

If you are under investigation for a criminal offense, or if you have been pulled over by police officers for any type of infraction, there may come a point where the officers want to conduct a search of your home or vehicle. It’s a longstanding principle and one of the essential components of our democracy that citizens shall be free from unreasonable searches and seizures. It’s right there in the 4th Amendment to the U.S. Constitution, ratified in December, 1791.

But exactly what protections the 4th Amendment provides can often be the subject of much uncertainty and confusion. What does a law enforcement officer need to initiate a search or seizure? Are there exceptions to the rules? This blog outlines the law and rules of search and seizure in Texas.
 

Your Protections under the Fourth Amendment

The Fourth Amendment reads as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

As initially written and construed until 1961, the Fourth Amendment only applied to actions by the federal government. In Mapp v. Ohio (1961), the U.S. Supreme Court held that the Fourth Amendment also applied to state and local government actions.

The language of the Fourth Amendment specifically prohibits “unreasonable” searches and seizures, but the courts have more often focused on those factors that make a search “reasonable.”

Those include:

  • The existence of probable cause and a warrant based on that probable cause
  • The specific circumstances that may justify a search without the need for a warrant

One of the first issues a judge will address when considering whether to issue a search warrant is whether or not the subject of the search had a “legitimate expectation of privacy” in the place or thing to be searched or seized. For example, a person who operates a business open to the public would not have a reasonable expectation of privacy in those areas open to the public. A police officer could conduct a search of those parts of the property without a warrant. However, there would be reasonable expectation of privacy in any private offices at the business. The search could not extend to those rooms without a warrant.

 

When a Warrant is Not Necessary

There are six specific exceptions to the requirement that law enforcement officers have a valid warrant to conduct a search:

  • If the evidence seized was “within plain view”
  • If the evidence was obtained as part of a lawful arrest
  • If the suspect consents to the search
  • If the officer has a reasonable suspicion that a criminal act is underway or has been committed—the officer must, however, be able to articulate specific facts that reasonably lead to that conclusion. Even so, the officer may only stop and frisk a person.
  • If the evidence is obtained after “hot pursuit” of a suspect—the fear here is that the suspect may destroy evidence if the police officer has to wait for a warrant to conduct a search
  • If the evidence is in a motor vehicle and the police officer had probable cause to believe that the vehicle contained contraband, evidence, instruments or proceeds of a criminal act

 

Contact the Experienced Criminal Defense Attorneys at Bailey & Galyen

At the law office of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas criminal defense attorney, contact us by e-mail or call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.

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