Tuesday, January 12, 2016

What should you do after you win the lottery?

This week's $1.5 Billion (yes, that's Billion with a "B") Powerball Jackpot has the internet abuzz with dreams of becoming the first instant billionaire (well, multimillionaire, after taxes).  It is highly unlikely that the winner or winners will ever read this, but still, it is fun to dream.  What would you do if you were holding the winning ticket.  What should you do?

Certainly, winning the lottery can be a life-changing event.  It changed the lives of 42 residents of Roby, Texas, who won $43 million, but not for the better.  Jack Whittaker endured plenty of misery, divorce, criminal accusation, and death of his loved ones after winning $314 million. Abraham Shakespeare won $30 million, and was murdered by his girlfriend and buried in a concrete slab.  The list of people who turned good luck into bad luck is long.  But it could be fun to win, too. Plenty of winners have had positive futures after winning the lottery.  

Here are some important steps to consider, if you ARE the lucky winner.

1.  Tell No One

After picking yourself up off the floor, the first thing you want to do is spread the good news, right?  Wrong.  Tell no one at first.  Not your spouse (who holds the power to divorce you or kill you in your sleep). Not your children (who might suddenly decide to splurge on their inheritance and tell everyone your good news). Not your best friend (whose cousin needs bail money).  Not your pastor (struggling to balance the church budget).  Money has a funny way of turning otherwise good relationships into cesspools of deceit and manipulation.  Greed can polarize friendships and family.  And, as news spreads, you could be making your friends and family targets for kidnapping or for emotional sob stories from every needy and deserving person. 

2.  Safeguard the Ticket

After telling no one this secret that is burning a hole in your life, you should take immediate steps to protect the ticket.  Lottery tickets are one of the last true types of "bearer paper."  That means that if the ticket is lost or stolen, anyone in possession can turn it in.  If the ticket is destroyed, it is gone forever.  Make paper copies and digital copies of the ticket, and store the original in a bank safe deposit box.

3.  Take Your Time

Once you have secured your ticket, it is time to relax and assemble your team of professionals before you do anything else.  This also allows all of the media frenzy time to die down.  The last thing that you want is publicity.  You will be running away from that for the rest of your life.  

4.  Don't Quit Your Job or Spend Money on Large Purchases

Remember number 1?  Now is not the time to be making life-changes.  Particularly without a plan in mind.  You need to disappear quietly, not tell your boss to "shove it" the morning after they announce that someone from your city has won a bajillion dollars.  You will always have time to quietly retire, but you need a plan in place first. 

5.  Hire a professional team

You will want to get an attorney.  Probably more than one.  At the very least, an attorney who is board certified in estate and tax planning law, to help create the corporate structure you will need and avoid paying more than necessary in taxes.  You will also want two financial advisors -- one who can draft a financial plan for you on an hourly fee, and another who can review it and give you independent advice.  

6.  Stay Anonymous if Possible

In some states, it is possible to stay anonymous when you finally claim your winning jackpot.  If you can do this, do it.  In other states, you might be able to form a corporation, LLC or trust and transfer the ticket to that entity, who can claim it through its attorney, in order to put layers between you and a money-hungry list of predators who will try to prey on you.  

7.  Get a Sober Companion

Suddenly becoming a millionaire overnight has the potential to give you the means to achieve your wildest dreams, while, at the same time, silencing your inhibitions.  No matter how "good" a person you think you are, you cannot handle it alone.  When you have surgery, you need someone to drive you while you are under the effects of anesthesia.  Much the same, you need a "designated driver" now.  This is someone without a direct financial stake in your life, and someone with honesty, integrity, and clarity of thought. Someone who can keep you from drowning in a pool of expensive alcohol or giving away your entire fortune to the line of people outside your door who mysteriously need transplants.  Try to find someone like Ghandi or Mother Teresa, if possible.  And insist on paying them by the hour for their advice.

8.  Go Off the Grid

Before you claim your prize --  disappear.  Really.  Change your cell phone number, change your email address, get a post office box, rent an "office" preferably in an executive suite with a shared receptionist to receive deliveries.  Move to a new location where you rent a home or purchase a new home in the name of a separate corporation or trust.  A move to the new city or state where you have always wanted to live, or to a remote mountain location might be in order.

9.  Follow Your Plan

Form and follow a plan to claim the winnings, decide whether it is better to take the cash value or installments, create an estate plan, invest, make charitable gifts, whatever it is that you want to do with the money.  Remember that, as remote your chances of winning, it is highly likely that you will never win another jackpot, so this will have to last for you and your friends and family that you choose to share it with.

10.  Learn to lovingly say "No."  

The truth is that money changes people, and it polarizes relationships.  The hunger and yearning to pry money out of your hands can infect even the closest family members and (former) friends.  Don't be surprised if your pastor suddenly sees in you a source for funding the church's new sanctuary, or your cousin shows up begging for money for his wife's chemotherapy.  It happens.  Wealthy people are used to insulating themselves with layers of "no men" just to protect them from the line of needy people at their door.  Even if you want to help people, you can't help everyone, and you must make careful decisions about who you can help.  You could easily go broke giving your money away to other people, and sometimes giving other people a windfall amount of money could have negative consequences for their own lives, if they are not able to manage it properly.  Learn to say "no" to people so that you can say "yes" to the causes you really, truly, want to support. 

Tuesday, November 17, 2015

Texas Open Carry 2016

Texas Open Carry Update 2016

For the last 20 years, since the adoption of the Texas Concealed Handgun Program in 1995, trained, law-abiding Texans have been able to carry a concealed handgun for self defense.  Beginning January 1, 2016, Texas's Concealed Handgun License will become a "License to Carry a Handgun" (LCH) and Texans with a license will be able to carry a handgun either openly or concealed.  But there are some important parts of this new law that you should be aware of before you carry a handgun openly or encounter a citizen carrying.

1.  Who is eligible to carry?  
Carrying openly or concealed is permitted for those who have no felony convictions, no recent misdemeanor convictions (in the last 5 years) and who have passed a class with a Texas DPS certified CHL Instructor. If you have a CHL, as of January 1, 2016, it will become an LCH automatically.  No additional permit (apart from your CHL/LCH) is required to carry openly.

2.  What are the requirements to carry openly? 
When you are openly carrying a handgun, of course, you must have your LCH on your person, together with your driver's license.  With an LCH, you can carry openly carry a handgun, as long as it is carried in a belt or shoulder holster. 

3.  If you are openly carrying, can you be stopped by the police?  
Yes!  The bill as passed by the Texas Legislature does not restrict police from stopping individuals who are openly carrying, to verify that they are properly licensed.  Remember, carrying a handgun is still presumed to be illegal in Texas, but possession of a LCH is an exception to the law.  That means that you have the obligation to cooperate with police and establish your entitlement to the exception whenever it becomes necessary.  Cooperation is the key.  If you are carrying, be prepared to show your LCH, just as you must be prepared to show your drivers license on request if you are driving.

4.  Are there any restrictions on where you can carry openly?  
Yes.  The same places which have always been off-limits for CHL are also off limits for open carry.  Among these are schools, bars, prisons, polling places on election day (or while early voting is taking place), and others listed in Texas Penal Code 46.03 and 46.035. If you are open carrying, you must be extra-careful not to go into these places, as there will be no doubt to anyone that you are carrying and breaking the law, and will likely be arrested and lose your LCH. In addition you may carry concealed, but not openly on the premises of an institution of higher education (a college or university), and only after August 1, 2016. It is also important to note that, for campus carry, "premises" includes driveways, parking lots, physical grounds, etc.

5.  Can business owners prohibit carry on their property?  
Yes. Every business owner in Texas is allowed to post a specific sign containing the notice set out in Texas Penal Code 30.06 (prohibiting concealed carry) or 30.07 (prohibiting open carry) or both.  Business owners may also ask anyone on their property to leave for any reason (including that they are carrying a handgun).  If you are asked to leave, please do!  Respect the rules of the business. If you don't, that is criminal trespass!

6.  If you encounter someone carrying a handgun, what should you do?  
If you see someone openly carrying a handgun after January 1, you should treat them with the same courtesy you would treat anyone else.  Waive.  Smile.  Say "Hello!" Do not be alarmed unless you have some reason to be alarmed.  If you see anyone (carrying or not) that is acting erratically, appears to be intoxicated and potentially dangerous, or is acting suspiciously, avoid the situation and contact local law enforcement.  But do not be afraid just because someone is carrying.  A person with an LCH represents a certified, licensed, trained person with a clean record.

7. Can a private citizen ask someone carrying if they have a LCH?
Sure.  Just understand that the citizen who is carrying has no legal obligation to tell you or to show you a their LCH.  Many may feel comfortable talking about it, so long as you are polite in your interaction.  Others may brush off the question or refuse to answer.  For some people, being asked about whether you have an LCH is a sensitive question, like being asked about your religious preference.  Remember this and, if you feel like you must ask, please do so kindly.

The changes in Texas Law have sparked many questions among Texas CHL/LCH holders about tactics, carry methods, and other means of carrying a handgun in the most responsible and effective manner possible.  Many of those questions are simply too detailed to answer well here.  As a licensed attorney and a 20 year veteran CHL instructor, I would be happy to answer any such questions, or discuss CHL further.  Please feel free to post a comment or email me with your questions at rob@hoganlaw.com.

Monday, November 4, 2013

Personal Injury Myth #1 -- Why should you file a personal injury claim if you had health insurance?

Personal Injury Myth #1 -- I don't need to file a personal injury claim if my medical bills were paid by health insurance.

Wow, that was a horrible accident.  Thank goodness you had health insurance, they will take care of everything you need, right?  Think again!

With the rollout of the Affordable Care Act, health insurance is in the news now, more than ever.  And millions more Americans are expected to have health insurance in the future than have had insurance in the past.  But how does health insurance work if you have been injured in an accident that was caused by the negligence of someone else?

You may be surprised to learn that, if you are hurt in an accident, your health insurance company WANTS you to bring a legal claim against the person or company that caused your injuries.  Most insurance companies even REQUIRE you to bring such a claim, as a condition of your health insurance policy.  This makes sure that the company or person who caused your injury is held fully responsible for the damages that they caused, and your health insurance company does not have to bear the cost of someone else's mistakes.

Hidden within the fine print on most health insurance policies is language that requires you to file a claim against the at-fault party who caused your accident, and then to share the proceeds with your insurance company, through a process known as Subrogation.  And if you fail to bring a legal claim, your health insurance company might be able to stop paying for your medical care altogether, or to charge you for the cost of the care that you received.  The insurance company relies on you to pursue such a claim, since you are the only one who can do so.

There are more reasons that you should file a personal injury claim.  Even if health insurance initially paid your bills, there are other damages -- such as lost wages, physical impairment (all the stuff you couldn't do while you were hurt) and physical pain and suffering  -- that health insurance simply doesn't pay.  Plus, many hospitals may even refuse to bill your health insurance (or list them as a secondary (backup) payor) because the hospital would rather have the bigger payment they get from treating you as a cash patient (rather than a health insurance/Medicare/Medicaid patient).  

Your personal injury attorney will work with you to make sure all of the medical bills related to your accident are paid out of any settlement or judgment that you receive, to see that your health insurance is paid back, and that you receive fair compensation for the damages that you have suffered.

Subrogation -- repayment of health insurance, Medicare, or Medicaid -- is one of the quiet secrets of personal injury cases.  Even though it is a legal requirement, many people do not realize that it is the law.  Courts in most states even have special rules that prevent juries from learning whether there is health insurance coverage in a specific case, or that the health insurance plan has to be paid back.

If you are on a jury, please remember that, even if health insurance might have paid some of the medical bills, health insurance most often has to be paid back.  It is not dishonest, unethical, or "double-dipping" to file a personal injury claim when health insurance, Medicare, Medicaid, or worker's compensation may have initially paid some of the bills.  Filing a personal injury claim allows responsibility for those medical bills to be placed where it belongs -- with the person or company that caused the injury.  

Robert S. Hogan is an attorney licensed to practice in Texas,  New Mexico, and Colorado, and is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization.  This article is meant for informational purposes only, and not to be relied upon for legal advice or representation.  

© 2013 Robert S. Hogan, Hogan Law Firm, PC, 1801 13th Street, Lubbock, Texas.

Friday, September 21, 2012

6 Things Your Doctor Won't Tell You About Tort Reform.

6 Things your Doctor won't tell you about tort reform. 

     Over the last two decades, medical malpractice law has been under the microscope, and legal rights and remedies of people injured by medical negligence has been eroded over and over again, to the point where justice in the field of medical malpractice is scarce as water in the Sahara Desert.

     Nowhere has this been more the case than in my home state of Texas, which has seen some of the most anti-consumer legislation in history in the field of medical malpractice.  And Texas's medical malpractice reform has been heralded as a model in other states, and before the United States' Congress by factions calling for federal medical malpractice reform.

     Here are six things that your Doctor will not tell you about tort reform and the medical system.

1.  Mistakes happen -- frequently

Yes, doctors study for long hours, devote years of their lives to caring for patients, and occasionally work miracles.  But doctors are also human.  And they make mistakes.  A lot of them, according to a study reported last year in the health policy journal Health Affairs.  According to the study, roughly one out of every three people encounter an "adverse event" (in other words, medical negligence) when they are admitted to a hospital. 1  Another study by the Institute of Medicine revealed that as many as 98,000 Americans die each year as a result of hospital mistakes, and a million more are injured. 2  That is equivalent to 750 Boeing 737s crashing each year!  

 2.   Health care costs are not driven by lawsuits

Many people cite lawsuits as being the reason for the high cost of medicine.  And there's a reason for that.  Its because medical mistakes happen to you, me, and our friends and families.  And we don't have a lobby in Congress promoting our interests.  Why is healthcare expensive?  For one thing, its because there is a tremendous amount of research and development that goes into truly "cutting edge" medicine.  Your cancer drug is not expensive merely because of lawsuits, but because the drug company spent billions to develop it, and has a limited amount of time to recoup their investment.  
Medical costs are also high because hospitals are under economic pressure to have the best facilities and the latest gadgets.  Part of that is due to competition with each other for the large health insurance group's business. Part is to attract new doctors and new patients.
Finally, medical costs are high because hospitals and doctors must shift the expenses to those who can pay them.  That $100 analgesic tablet?  It is priced so high because no one pays $100 except those who are private pay.  Private insurance patients' insurance companies pay $50.  Workers' Comp pays $25, and Medicare/Medicaid pay $0.25 (far less than the actual cost of the item).  These "discounts" must be made up somewhere, and it is by adjusting the overall "price," referred to as the "Chargemaster rate"

3.  Doctors insist on more exams to charge you more

You go in to the ER or the doctor with a basic problem, and the next thing you know, you are being sent for labs, X-rays, MRI scans, EBT, or some other procedure.  Many doctors, when asked, will throw out "fear of litigation" as the reason, but it's far more basic than that.
Why do doctors do so many diagnostic tests?  Having purchased the cutting-edge machinery that they were sold by smooth-talking medical device salesman, now the device must be paid for.  And each new diagnostic scan helps to pay for the machine.  There is a certain number of scans which must be done each month in order to make a profit.  Doctors, whether at a hospital or in private practice, are under tremendous financial pressure to make their office equipment profitable.  And they know that they will have to upgrade the machine's hardware and software frequently to keep pace with other facilities.
Many times, the price may also be driven by private insurance or medicare/medicaid, out of a desire to justify other procedures or more detailed exams, or make up for revenue shortfall on other items the medical provider can collect for.

4.  Doctors are not beseiged by frivolous lawsuits

Do doctors get sued?  Yes, of course they do.  (See number 1).  But how many of those suits are justified and how often are they frivolous?  Hospital and insurance lobbyists would try to convince you that all of them are frivolous.  Even though we know, instinctively that cannot be true, many of the statistics on the number of frivolous lawsuits cite all lawsuits in their number of frivolous suits.  Truth be known, there are no objective statistics which track whether lawsuits filed are frivolous or meritorious.  And that very description is subjective by nature, and depends on who you ask.  The injured plaintiff's attorney?  The defense attorney?  The court?
For any lawsuits that are truly frivolous, rules exist in every state and in the federal court system that allow these cases to be tossed out by the judge very early in the case,  and punish the people who file them, or assess costs against them.  That has been part of our legal system for generations. 
The truth is that most medical malpractice lawsuits, like other lawsuits, are brought by attorneys representing the injured party on a contingent fee. That means that the attorney or law firm invests their own money in the costs, filing fees, expert witness fees, and, if there is no recovery, that money is written off.   I do not know of a single attorney who is willing to invest $10 thousand (often ten times that) of their personal funds in bringing a case that does not have at least an even chance of winning, and paying the money back.  This is one way in which the contingent fee system is beneficial to the system, by serving as a common-sense gatekeeper to prevent frivolous lawsuits.

5.   Doctors won't tell you when they mess up.

With the amount of records that hospitals keep on everything that goes on, you would think that it would be easy to prove medical malpractice by looking at the medical records, right?  Well, the truth is that you will not get those records.  Since the middle of the last century, hospitals have been keeping detailed records of cases that go wrong, people who die because someone had a bad day, and other "things that go bump in the night." But those records are very well-hidden behind the "peer review privilege."  This means that no one other than the hospital administrators, and occasionally government regulators, is allowed to see these records or know that they exist.  Not the patient, the patient's family, or their attorneys.  "Peer review" means that  we want hospitals and doctors to talk freely about mistakes to make sure that they don't happen again, but more often than not, peer review becomes an excuse to protect negligent doctors and nurses from accountability, and hide the truth about mistakes that were made.
And mistakes become even harder to discern based on medical records, which are drafted by doctors and nurses that provided the care, sometimes hours or days later, and use such euphemisms as "poor outcome" to describe death on the operating table.  It becomes very easy for the providers drafting the medical record to "omit" negative statements from their records, and there is tremendous pressure on medical workers to maintain silence about mistakes that are made by these "problem children."  But just ask any nurse or health care worker in the family.  They will tell you horror stories about doctors or nurses who are known to be chronic problems. 

 6.  Justice in medical malpractice is an endangered species.

 If I get hurt by a negligent doctor, I can get fairly compensated, right?  Think again.  Probably not.  Due to the incredible weight of restrictions and regulation which have been emplaced in the name of "tort reform" over the last couple of decades, attorneys turn away far more cases -- often very tragic cases -- than they accept.  This is partly because of the extra procedures and requirement for experts that has really increased the burden of proof required to "win" a case,  and partly because of increasingly conservative juries who are unwilling to accept that doctors make mistakes, but more often than not because of caps on verdicts.
While claiming that they were fighting "frivolous claims," many states have very cleverly enacted caps on medical malpractice recoveries, which really only affect the serious, meritorious cases the most.  
In Texas, for example, "non-economic damages" are capped in medical malpractice cases to $250,000 maximum for all doctors involved, and $250,000 for negligent facilities, up to two facilities.  What is "non-economic?" Everything but lost wages and medical bills (which have their own, slightly higher cap).  And these numbers are not indexed to inflation.  Which means that, as the cost of living goes up, the caps actually go down, until the legislature decides to increase them.
Let's consider it this way -- a negligent hospital nurse administers nitrous oxide (an anesthetic gas) through a breathing mask instead of oxygen to your teenaged child with a cracked rib, and your child dies as a result!  The only legal way to get justice is through a lawsuit for damages.  And the hospital can only be penalized for $250,000 (which is the equivalent of a parking ticket to a multi-billion dollar facility). Your child had no medical bills resulting from the incident, and was not a wage earner, so there are no economic damages.   
What's more, the hospital knows that they risk $250,000 at most, so it is unlikely they will offer to pay the full amount voluntarily, without forcing you to go through a jury trial and appeals. The trial will likely cost 45% of the recovery for the lawyer's fees, plus $50,000 in expert expenses and depositions, leaving you with $87,500 or less to compensate you for the loss of your fifteen-year old daughter.
Its worse at a government-owned hospital, like the local county hospital or state-university affiliated hospital in Texas, where the government-claims cap may be as little as $100,000 per person injured for all damages.  In that case, your daughter's life might be worth as much as $5,000 under the same scenario.  Which is why many good lawyers are not willing to take medical malpractice cases, because they know that, in most cases, justice is not an option.

What can you do?  Get involved.  Write your legislature.  Follow groups like Stop TLR, the American Association for Justice, Texas Watch, and other grassroots organizations that look out for the rights of Americans like you and me.  It is time that the truth was known. 

Robert S. Hogan is an attorney licensed to practice in Texas and New Mexico, and Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization.  This article is meant for informational purposes only, and not to be relied upon for legal advice or representation.  

© 2012 Robert S. Hogan, Hogan Law Firm, PC, 1801 13th Street, Lubbock, Texas.

Wednesday, September 19, 2012

    Welcome to the Texas New Mexico Injury Law Blog, offered as a service of the Hogan Law Firm, PC located in Lubbock, Texas, and serving Texas and Eastern New Mexico.  Victor Rodriguez, II, and I, both graduates of the Texas Tech School of Law, are proud to help families around the West Texas and Eastern New Mexico areas who have been injured in an accident, through no fault of their own.

       In these pages, we will discuss news stories, court cases, and other areas of important interest to our clients, our friends, and others in the community. We welcome your comments and your feedback!