For years, researchers have been studying a possible link between breast implants and the development of Breast-Implant Associated Anaplastic Large Cell Lymphoma (BIA-ALCL). While estimates of the risk have varied widely, in recent months, textured breast implants products made by Allergan have been recalled because of their link to non-Hodgkin’s lymphoma. Several health organization authorities now recognize the link between textured breast implants and the development of BIA-ALCL. This is a rare form of cancer that occurs in the immune system. In July 2019, the U.S. Food and Drug Administration requested that manufacture Allergan voluntarily recall Natrelle BIOCELL textured breast implants. As a result, the company is pulling the product from the global market.
The FDA has identified a worldwide total of 573 BIA-ALCL cases—including 33 patient deaths. Further, at least 12 patients who have since passed knew Allergan was the manufacturer of their textured implant at the time of their diagnosis. Textured Allergan implants were identified in one woman after her death. Unfortunately, the manufacturer and/or texture is unknown for the remaining 20 reported BIA-ALCL deaths.
In addition, of the 573 BIA-ALCL cases, 481 were reported to have Allergan implants.
Allergan is a global pharmaceutical company headquartered in Dublin, Ireland. According to the Associated Press, the brand accounts for just 5% of the U.S. breast implant market. The July recall does not affect the brand’s smooth implants or other textured implants, sold under the Microcell brand.
The company voluntarily agreed to the FDA’s request to remove breast implant products from the market. In a press release, the company stated:
“Allergan is taking this action as a precaution following notification of recently updated global safety information concerning the uncommon incidence of breast implant-associated anaplastic large cell lymphoma (BIA-ALCL) provided by the U.S. Food and Drug Administration (FDA).”
Anaplastic large cell lymphoma (ALCL) is a very rare, treatable form of non-Hodgkin’s lymphoma cancer of the cells of the immune system and a known risk from breast implants. It occurs in breast tissue in about 3 in 100 million women. This rare form of cancer affects the cells of the immune system.
In cases where ALCL is linked to breast implants, the cancer is not found on the breast itself, but usually in the capsule of scar tissue that forms around the implant and fluid near the implant. There are even some cases where the ALCL has spread throughout the body.
In 2011, the FDA was the first public health agency in the world to communicate about the risks of BIA-ALCL, warning women that the available information at the time indicated that there is a risk for women with breast implants for developing this disease.
Researchers are still examining the correlation between ALCL and breast implants. For example, researchers have yet to determine whether saline or silicone implants affect the potential risk of developing ALCL. However, as of 2016, the World Health Organization specified BIA-ALCL as a T-cell lymphoma that can develop following breast implants.
Textured implants have a rough surface that may irritate or inflame the tissues around it. Researchers believe there is a possibility that this chronic inflammation plays a role. In fact, studies have revealed markers of chronic inflammation in the scar tissue around the breast implants. This suggests that an immune response to the breast implants may trigger ALCL.
Another possible cause comes from an immune response that increases cancer risk due to the bacteria that surrounds the area around the implant. A study conducted in 2016 focused on the community of bacteria around tumor samples in people with ALCL that was linked to breast implants. The study revealed there was a significant difference from the community of bacteria around samples from people with breast implants who did not develop ALCL.
The symptoms of ALCL may occur years and even decades after undergoing breast implant surgery. Symptoms consist of persistent swelling or pain in the area of the breast implant.
Researchers have yet to determine whether saline or silicone-filled implants affect the risk of developing BIA-ALCL. However, the FDA’s recall makes it clear that textured implants made with silicone and polyurethane outer shells have the highest risk. It is clear that the body reacts differently to textured implants than to smooth ones.
A plastic surgeon and researcher at the University of Southern California’s Keck School of Medicine says that tissue grows into microscopic grooves in the textured implants.
No. BIA-ALCL is not breast cancer. It is a type of immune system cancer called non-Hodgkin’s lymphoma. According to research, in a majority of cases, BIA-ALCL is found mostly in the scar tissue and fluid surrounding the textured implant. However, in rare cases, the disease can spread throughout the body.
Textured implants are less likely to move around inside of the breast. This is because they help develop scar tissue to stick to the implant and protect it from the body’s reaction to a foreign object. Ultimately, the scar tissue prevents the implant from repositioning as is seen in other types of implants.
These types of implants were invented to stabilize the implant in the breast pocket, as well as decrease the incidence of capsular contracture, a condition where the tissue begins to tighten and squeeze the implant.
In the summer of 2019, the FDA requested that the Dublin-based manufacturer Allergan remove its BIOCELL texture implants from the market. In addition, the maker also pulled other products from the shelf that includes the following:
- Allergan Natrelle Saline-Filled Breast Implants (previously sold as the McGhan RTV Saline-Filled Mammary Implant) in styles 163, 168, 363 and 468.
- Allergan Natrelle Silicone-Filled Textured Breast Implants (previously known as Inamed Silicone-Filled Breast Implants) in styles 110, 115, 120, TRL, TRLP, TRM, TRF, TRX, TCL, TCLP, TCM, TCF,TCX, TSL, TSLP, TSM, TSF, and TSX.
- Natrelle 410 Highly Cohesive Anatomically Shaped sIlicone Filled Breast Implants in styles 410FM, 410FF, 410MM, 410 MF, 420 ML, 410 LL, 410 LM, 410 LF, 410 FX, 410 MX, and 410 LX.
The tissue expanders that have been recalled are:
- Natrelle 133 Plus Tissue Expander
- Natrelle 133 Tissue Expander with Suture Tabs
The FDA is continuing to evaluate any new information regarding breast implants. The FDA is not recommending that women with Allergan implants have them removed. However, the agency does recommend seeing a doctor if patients notice symptoms such as pain and swelling.
ALCL is typically curable when detected early on and not often fatal. Surgical removal of the implants and the tissue around it eliminates the disease in many cases. However, some women may need to undergo chemotherapy and radiation.
Established and probable factors that increase breast cancer risk include the following:
- Age (older)
- Age at first childbirth (older)
- Age at first menstrual cycle (younger)
- Age at menopause (older)
- Ashkenazi Jewish heritage
- Being female
- High blood androgen levels
- Birth control pills
- High blood estrogen levels after menopause
- High bone density
- Personal family history of cancer
- Race and ethnicity
- Physical activity after menopause
- Carotenoids (antioxidant-rich fruits and vegetables)
In about 90% of breast cancer cases, women find a breast lump themselves. So, check your breasts regularly. If you have implants, pay extra attention to how your new breasts look and feel.
It can be concerning to learn there is an association between breast implants and cancer. While it is important to keep potential risks in perspective, it does not mean those who have breast implants should have them removed. Instead, make sure you schedule routine check-ups with your health care provider. If you notice any signs such as new breast swelling, lumps, pain or changes in breast shape, promptly schedule an appointment to report these symptoms.
While cancer is a scary topic to think about, the disease and its consequences are something we need to be aware of. Second to skin cancer, breast cancer is the most common type of cancer in American women. In fact, U.S. women have a 12 percent risk of developing breast cancer. The Carlson Law firm is a client-first law firm. We have devoted decades of protecting the rights of injured victims. At a time when you’re vulnerable, traumatized and emotionally exhausted you need a team that will support you through the often complex that lies ahead.
If you or a loved one had a misdiagnosis or delayed breast cancer diagnosis, we have a medical malpractice team ready to protect you in any way we can. Contact us today to discuss your situation and explore your legal options. We care, we can help.
Back to school for many parents and guardians means back to bumper to bumper annoyance in the school drop off and pick up line. School handbooks don’t typically come with the dos and don’ts for the school pick up line, but they may have a designated drop off area and staff directing the flow of traffic to get students safely inside. The top priority for the school drop off and pick up lines is ensuring that students are safe. For this reason, remembering to put the needs of others above your own is the best way to ensure your child is safe, other children are safe and other parents don’t hate you.
The pick-up and drop-off lines are the great equalizers. No one is above the system. Forming a line is not complicated and it’s one of the first things we as humans learn to do in none other than school.
Consider this quick refresher on school drop off and pick up lines etiquette.
The school pick up line is not a time to catch up with other parents about their summer. It’s also not the best time to talk to your children’s teachers. Let’s face it, a quick chat isn’t necessarily quick for the parent behind you who needs to get to work.
Approximately one in six drivers are distracted. This doesn’t change once a person enters into a school zone behind the wheel. The top distractions for drivers include the following:
- Cell phones
- Eating or drinking
- Reaching into the backseat
The distraction of your phone can take your eyes off your surroundings for much longer than you may realize. Pick up and drop off lines are a lot of stops and go, in addition to lots of children being around. To avoid any tragedies, put your phone away while dropping off or picking up your most precious cargo.
There’s no need to fumble around for lunch boxes or sign field trip papers in the drop-off line. Double-check that your child has everything they need for the day before leaving the house.
Line cutting can often lead to tempers rising which can make for dangerous road rage situations. Avoid this at all costs. Road rage can lead to serious lapses in driving judgment that can endanger the lives and property of everyone around. This also goes for honking your horn, screaming obscenities or posting on social media about another parent.
Trying to get around other vehicles that are stopped means you may not see everything up ahead including children. Waiting your turn ensures that you won’t be the cause of a tragic accident.
School zones aren’t just to slow your morning down, the posted limit is to keep the high number of students traveling through the area safe. There is a lot of traffic during pick up and drop-off times and sometimes kids may step off the sidewalk into oncoming traffic. If an unexpected child in the road occurs driving slower gives you more time to react and may save a life.
While in the morning drop-off line, you want the smoothest transition possible. Staying in your car means that when the car in front of you moves, you move. Keeping the flow of traffic moving will keep the parent drop off and pick up lines from impeding the flow of traffic on public roads feeding into the school.
If your child is in a grade level that requires you to park and get out of your vehicle to get your child or take your child into the building, avoid double parking. Even if you are running late, it’s better to circle the block to avoid blocking the flow of traffic and preventing the driver from leaving their space.
If the bus is an option for your student, let them take the bus. School buses are actually one of the safest commute options for students. Far safer than you taking them. You can avoid the morning traffic and help alleviate some of the traffic for other parents by allowing your child to take the bus.
If your child is refusing to get out of the vehicle, the drop-off line isn’t the best place to battle it out. Park, calm your child down and walk them to their destination.
Even if you do everything right, there is always a chance that another parent is having an off day. If that is the case, take a deep breath and patiently wait your turn. Frustration and raised blood pressure won’t get you where you need to be any faster. In fact, it will likely just set you up to have a bad day and hurt your overall health.
It’s easy to forget that everyone has a life and a list of things to do for the day. However, taking a deep breath and remembering that it’s important to consider the safety of the pedestrians and motorists around you is the best thing you can to keep your children, other children and the staff at your children’s schools safe. When you are in the drop-off or pick up line, your top priority should be safety. Other people have lives that they’re trying to get to just the same as you. Being polite and considerate of others will not only keep your children safe, but it will also ensure you make it to your destination unharmed.
If you or a loved one were injured in a school drop off or pick up line accident, contact The Carlson Law Firm to discuss your legal options.
Children all over the country are heading back to school. Some students will be walking to school, others will catch a ride from mom, dad or grandma. But nearly 25 million U.S. students will take the bus to school. Luckily, school buses are one of the safest modes of transportation on the roadways. So much so, that the National Highway Traffic Safety Administration (NHTSA) says that students are almost 70 times more likely to get to school safely when taking the bus instead of traveling by car.
However, it’s still important to recognize that children face several dangers on and off the school bus.
The biggest danger a child encounters while riding the bus is not the ride itself, but rather getting on and off the bus safely. Most children injured or killed in school transportation accidents we’re on foot, not the bus, at the time.
Children are most at danger when they are pedestrians walking to or from the school bus. Nearly 20% of school bus drivers have reported that vehicles passed their buses illegally. When a motorist disregards the control arm they are putting children in danger.
School buses are the safest form of transportation for school-aged children. In fact, NHTSA reports that of all motor vehicle crashes, school transportation incidents make up only 0.4% of all traffic incidents.
The majority of these accidents happen in the early morning and during school drop off times. Meaning when children are at their bus stop. Unfortunately, there is an average of 124 school transportation fatalities yearly. Many of the fatalities reported did not involve school-aged children and occurred in rural areas.
- 10% of fatalities were school bus occupants.
- 20% of the fatalities were pedestrians, including bicyclists.
- 70% of the fatalities were occupants of other vehicles involved.
There is a danger zone around the outside of every school bus where children are at the most risk of being hit, either by the bus itself or another vehicle. This danger zone extends as far as 30 feet from the front bumper, 10 feet from the left and right sides, and 10 feet behind the rear bumper.
This area is so dangerous because it is extremely hard for the driver to see. If a student drops something in this area they should never try to retrieve it on their own – they must alert the driver.
Staying educated on school bus safety is equally as important for children as it is for those that drive past school bus stops and school zones. Some safety tips include:
- Drive with caution, especially in neighborhoods that have school zones.
- Obey the school bus laws in your state as well as the “flashing signal light system” that bus drivers use to alert motorists of their pending actions.
- Be careful backing out of driveways, be mindful of children walking.
For students at the bus stop
- Students should stay at least 5 large steps away from the bus as it approaches the bus stop.
- Students should not cross the street until the bus has come to a complete stop, the control arm is activated, the driver signals you on, and the student looks both ways.
- Never walk close to the sides of the busses.
- Do not talk to strangers.
- Never bend down to reach an item that has fallen in the danger zone without alerting the bus driver.
- Do not have strings hanging from jackets or backpacks, they can get stuck in the door of the bus.
For students on the bus
- Stay seated.
- If there are seat belts make sure they are fastened correctly.
- Never put your head or limbs out of the window.
- Do not play with the emergency exits.
- Do not block the aisle. If there is an emergency a blocked aisle can increase the danger.
Sadly, children may face a different type of safety concern once aboard the bus, bullying. Bullying can occur anywhere, including the school bus. Bullying can be especially harmful on the bus because the child isn’t capable of leaving the situation.
Additionally, bullies may pick the bus as the location to target other students because there is usually only one supervising authority – the bus driver. The bus driver may have a hard time spotting bullying because they are paying attention to the road.
Having a better understanding of school bus bullying can help prevent harm to students. Signs bullying is occurring on your child’s bus include the following:
- Fear of either going to school or riding the bus.
- Trying to miss the bus.
- Returning from school with ripped clothing or lost/stolen items.
- Panic attacks on school days before riding the bus.
Bullying is a concern for many children considering it affects about 27% of all school-aged children. There are some things children can do if they are being bullied.
- If possible, sit close to the bus driver so they are more visible to the driver
- Switch seats to be further away from the bully
- Pair up with a neighborhood friend to ride the bus together
- Tell adults when bullying occurs
Parents should not hesitate to contact their student’s school if their child is being bullied. Schools are responsible for providing a safe learning environment for their students.
Numerous children and teens rely on school transportation to commute to their schools. It is important for others to follow state laws to help ensure the safety of students. Failure to follow laws can result in criminal charges. There are a few things to keep in mind while driving during the school year, including what kind of road you are traveling on.
- Two-lane roads: Vehicles traveling in both directions must stop.
- Multi-Lane Paved Across: Most commonly, four-lane roads with a median turning lane. All traffic must stop.
- Divided Highway, roadways that are divided by a physical barrier. Motorists that are traveling in the same direction as the bus must stop. Vehicles that are traveling in the opposite directions are allowed to proceed with caution, looking out for student pedestrians.
If your child has been injured by a school bus or another motor vehicle. Contact The Carlson Law Firm for a free consultation to discuss your case. We will go over the circumstances of the accident and explain your legal options. We have a team of attorneys, legal assistants, nurses and private investigators who are ready to assist.
Whether it’s elementary, middle school or high school—all students need a backpack. With the growing number of deadly mass shootings in public places, parents are opting for a piece of mind with bulletproof backpacks or inserts. While an active shooter on their child’s campus is a possibility no parent wants to face, this possibility is becoming an increasing reality. This is why many parents are opting to purchase bulletproof backpacks or inserts to protect their children in the event of a school shooting. By no stretch of the imagination are bulletproof backpacks the long-term solution to school shootings. However, they may be the first line of defense against an active shooter.
Since the Valentine’s Day school shooting at Marjory Stoneman Douglas High School, companies selling bulletproof backpacks or inserts have seen a significant increase in sales. For example, BulletBlocker CEO Joe Curran said company sales increased by 400 percent since the shooting. Another ballistics company, Kincorner saw bulletproof backpacks and inserts increase by 1,000 percent from June to July.
A major influence in the rise in bulletproof backpacks or inserts sales is the rapid rise of mass shootings. It’s true when it comes to gun violence; public mass shootings account for a tiny fraction of the nation’s gun violence deaths. But their fractional death toll doesn’t make them any less terrifying because they occur anywhere and without warning. Over the past decade, mass shootings have grown in frequency and devastation. In fact, the five deadliest mass shootings have all occurred within the last decade—with the deadliest occurring just last year.
The F.B.I. defines a “mass killing” as the killing of three or more people in a public place. Also, the federal agency defines “mass murderer” as someone who has killed four or more people in the same location.
Since 2005, gun manufacturers have legal immunities that prevent them from being sued for crimes committed with the weapons they sell. Starting in the 1980s, victims of gun violence began filing civil claims against gun manufacturers and retails stores after suffering injuries from violent incidents or losing loved ones. As a result, many of these victims won notable victories against the gun industry.
That all changed in 2005 when Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA). The law was passed with bipartisan support and signed into law by then-president George W. Bush. The PLCAA came in response to a slew of lawsuits that cities filed against the gun industry in the late 1990s and early 2000s. The lawsuits typically claimed that gunmakers and sellers were engaging in negligent marketing or created a public nuisance.
Bulletproof backpacks are legal in the United States. Body armor such as bulletproof vests and plate carriers are legal to own and wear in all 50 states. This also applies to other ballistic gear such as bulletproof backpacks and inserts.
Residents of Connecticut and convicted felons are prohibited from purchasing bulletproof vests online. Further, most bulletproof backpacks inserts are banned by TSA for use on planes.
Bulletproof backpacks and inserts are made to protect against handguns and shotguns.According to FBI data, 56% of gunmen in shootings used handguns, whereas 27% used rifles. However, because they are made of Kevlar fabric, a strong thread that is densely woven, backpacks and inserts will not protect against popular semi-automatic rifles like the AR-15.
The National Institute of Justice(NIJ) has a rating system for body armor. To fully protect against AR-style rifles, backpack armor would need to have metal plates. These metal plates can weigh between 3 and 10 pounds. It is important to remember that no armor is ever considered 100% bulletproof.
As kids head back to school this year, many parents are wondering how to keep their children safe. As of August 2019, there have been at least 58 incidents of gunfire on school grounds. Many parents feel that this is a sign of the times. Others see ballistic shield backpacks as a disturbing sign of how willing Americans are to accepting gun violence as the norm.
Critics of ballistic shields in backpacks say that parents are having a knee-jerk reaction to guns in schools. There have been several criticisms of ballistic shields in backpacks.
Critics of ballistic shields in schools say that the application is impractical. In many schools, children don’t typically have their backpacks nearby. Further, critics say that children won’t have the mental presence to hide behind a backpack. In addition, these critics say students will likely not make sure they have their backpacks when running away from a potential threat.
In addition to AR-15s being obtained legally by several mass shooters, they are the most popular gun in America.
As noted above, kevlar isn’t an effective shield from rifle weapons, a common weapon used in mass shootings. When ballistics experts have performed tests on the effectiveness of backpacks, they have found that the backpacks perform well with stopping bullets from a handgun. However, the sheer force of .45 caliber round can still do damage even if the bullet does not penetrate.
Other critics feel that students should feel safe in school. They also say that more needs to be done at a legislative level to ensure student safety. These critics support “common-sense strategies” to ensure mass shootings in educational settings don’t occur.
For example, many critics support reinstating the federal ban on assault weapons. Between 1994-2004, gun massacres fell by 37 percent. Further, the number of people dying from gun massacres dropped by 43 percent. However, after the ban lapsed in 2004, there was a 183 percent increase in killings and a 239 percent increase in gun massacre deaths.
Bulletproof backpacks and backpack inserts aren’t the only accessories ballistics companies are outfitting with bullet-resistant materials. Schools began opting for whiteboards over chalkboards in the mid-1990s. But as gun violence on campuses across the country has increased, whiteboards can now serve as a shield to protect teachers and students from an active shooter on campus. Other bulletproof accessories available for students and parents needing a piece of mind include:
- Bulletproof classroom doors
- Bulletproof jackets
- 3-Ring binder insert
- Bulletproof binders
- Backpack armor (rifle threat protection, 8lb metal plate)
- Bulletproof seat cushions
- Bulletproof tablet cases
While bulletproof items may give parents peace of mind, they don’t address the increasing number of mass shootings in this country. A mass shooting can happen anywhere at any time. But, gun violence has no place in our schools. While there are many ideas about what should be done to protect our students from the threat of a mass shooting, there has yet to be any action on protecting students in classrooms.
We will fight tirelessly on your behalf to hold at-fault parties responsible. Our qualified attorneys can answer your questions about school safety and who is responsible in the event of a mass shooting tragedy. We offer free consultations and are available 24/7. If you lost a loved one or were injured in a mass shooting, contact the dedicated team of attorneys at The Carlson Law Firm.
As young children, we’re taught to respect our elders. So, when the car ahead of you is driving too slow in the fast lane, you might be tempted to throw an angry glance their way. That is until you realize it’s someone who looks like they could be your grandparent. If you find yourself wondering whether older folks should be allowed to drive, you’re not alone. In fact, many states have laws in place that may protect older adult drivers from themselves, as well as keep the roads safe.
In most states, getting your driver’s license requires taking a class and turning 16. From that day forward, your level of independence increases significantly. This is particularly true if you live in an area where public transportation is not a priority.
The idea of losing this freedom may seem unfair, but aging does have significant effects on reflexes and the senses that are crucial for driving. America’s population is skewing older. In fact, by 2030, the National Highway Transportation Safety Administration estimated that 25% of drivers will be an older adult. In most situations, once you get your license, you have it for life. But as more states begin to understand the effects aging on driving, more seniors will have to undergo retesting.
Alcohol isn’t the only impairment that motorists have to deal with. As people age, their reflexes, mobility, and vision begin to deteriorate. As a result, their ability to safely operate a motor vehicle declines. This isn’t just anecdotal. There is science to back up that as you age, physical changes occur in nerve fibers which slow the speed of signals traveling to the brain. Also, parts of the brain that involve motor control deteriorate and lose cells over time.
There is no upper age limit to stop an elderly driver from operating a motor vehicle. Like in most other areas of life, age is an arbitrary number when it comes to handing over the keys. Driving is about your ability to continue to do so safely.
In most families, there comes the point where children, grandchildren, nieces, and nephews start pitching in to drive their aging loved ones to different appointments or social gatherings. This usually occurs when it becomes apparent that their loved one can no longer safely operate a motor vehicle.
- Getting lost
- Failing to obey traffic signals
- Slow reaction to emergencies
- Driving slower than the posted speed or general speed of other moving vehicles
- Poor judgment
- Forgetting common safety techniques
- Deterioration in motor skills
- Poor or worsening vision
- Cognition troubles
- Difficulty navigating in the sun’s glare or oncoming headlights
- Increased close calls
- Failing to use turn signals
- Two or more traffic citations or warning in a two-year window
- Side swiping
- Making sudden lane changes
- Straddling lanes
- Backing up after a missed exit or turn
- Dents or scrapes on their car or surrounding objects
Sudden braking is another sign that a person may need to retire from driving. This often means that something is preventing them from perceiving actual hazards in the road.
Like most things, the laws which determine when a person needs to be re-tested depends on your state. Nationally, 30 states and the District of Columbia have special rules regarding older adult’s driver’s licenses.
These rules may require older drivers to renew their license:
- More often, such as every two years or every year
- Take a driver’s test for each renewal
- Pass an eye exam
- Restrictions on freeway or highway driving
- Driving only when a licensed driver (21 or older) is in the front seat
- Daytime driving only
- Hearing aids while driving
- Limit operating vehicles to those equipped with outside mirrors, automatic transmission or power steering
In some states, people can report an older adult to their state’s Department of Public Safety if they’re a concern for motorist safety. A report may require a hearing where officials will evaluate an older’s drivers licensed status.
Even when an older adult driver maintains their health, there will still come a time when they need to give up the keys. Assessing your loved one’s ability to drive may be difficult to do, especially when you don’t see them every day. One of the easiest ways to determine if there is a need to take the keys away is to listen to your loved one.
If you are, or if you have an aging loved one, there are some steps you can take to protect yourself and keep your license.
- Follow a regular exercise or activity program to increase strength and flexibility.
- Ask your doctor or pharmacist to review the side effects or interactions of both prescription and over-the-counter drugs.
- Get your eyes checked at least once a year.
- Drive during the day and in good weather.
- Plan a route with well-lit streets, intersection with protected arrows and easy parking.
- Leave a large enough distance between your vehicle and the car in front of you to allow yourself time to react.
- Avoid distractions such as the radio, cell phone, texting and eating.
- Look into public transportation or ride-sharing services.
If you begin to notice a decline in your reaction times or begin to dread or fear driving, it may be time to give up the keys. There is no longer a need to rely on family members or cab companies to get around; older adults can use ride-sharing services like Uber or Lyft.
Falls and car crashes are the leading causes of injury and death to older adults. According to the Centers for Disease Control and Prevention, there are nearly 42 million licensed older drivers in the U.S. This is up 56 percent from 1999. Crash death rates among people ages 20-24 account for 18.4% of deaths. From 25-74, these rates decline significantly and remain relatively stable. However, these rates jump to 15% for ages 75-79 and go up 17.8% for 85 and over.
This trend has been attributed more to an increase in susceptibility to injury and medical complications among older drivers rather than more crashes. Older adults are more susceptible to injuries in a collision; therefor the proper steps must be taken to reduce the likelihood of a car crash.
Older drivers are more susceptible to injuries from traumatic experiences. However, older drivers can protect themselves by doing the following:
Seat belt use
Older adults are more likely to be wearing seat belts at the time of a crash. For seniors 75 and older, the seat belt use rate is around 69%. It’s important that older adults understand that seat belt can save their lives if they are involved in a crash.
Drive when conditions are safest
When older adult drivers limit their driving during bad weather, at night, and on high-speed roads, they limit their chances of crashes. All of these conditions require drivers to react quickly to hazards.
Don’t drink and drive
While older drivers are less likely to drink and drive, alcohol is still a factor in 6% of crashes involving drivers 75 and older.
There are serious conditions that can affect your vision, hearing, and reflexes. If you begin to notice signs of a condition or illness, you must get to the doctor to get a proper diagnosis right away. This can prevent a loved one from putting themselves or others in danger.
Conditions that can prevent an older adult from operating a motor vehicle include the following:
Cataracts are a common, but treatable eye condition in which clouding caused by a protein build-up begins to occur between the iris and pupil. The condition develops slowly over the course of years until they eventually begin to interfere with a person’s vision.
Macular degeneration is another condition that leads to vision loss. However, macular degeneration is simply the worsening and loss of vision as people get older. It mostly affects people over age 60.
Dementia affects memory, thinking and social skills. The disease impairs judgment, memory and decision-making skills. Dementia worsens over time and can eventually make operating a motor vehicle too dangerous for the person suffering from it.
Epilepsy is a neurological disorder that causes unpredictable recurring seizures. The condition can affect anyone of any age and can keep people from driving because a seizure can occur while a person is operating a motor vehicle.
Several other conditions can keep a person from operating a motor vehicle. If you suspect that you or your loved one is suffering from one of these conditions, visit a doctor to have the problem evaluated.
No one wants to give up their independence; however, it’s essential to think about the safety of others when you operate a multi-ton vehicle. As we age, the risks associated with the deterioration of our reflexes and vision can put us in dangerous situations. When it’s time to give up the keys, give them up. Accidents and crashes are entirely preventable as long as the right steps are taken. While we may customarily defer respect to our elders, a driver’s senior status doesn’t shield them from laws that govern vehicle operation negligence. Seniors are still responsible for any damage or injuries they may cause.
If you’ve been injured by an older adult driver in an auto collision, contact The Carlson Law Firm.
It started with a morning cup of coffee and ended with a powerful corporation controlling the narrative. It’s the case that gave rise to attacks on personal injury attorneys. Further, it helped push a false narrative about frivolous lawsuits in America. It’s the case that many believe responsible for the comprehensive tort reform that significantly reduced the ability of victims to seek justice through civil courts. ABC News even called the case “the poster child of excessive lawsuits,” and the popular 1990s show Sienfield used a hot coffee lawsuit as the plot for one of its episodes.
It’s Liebeck v. McDonald’s Restaurants.
Despite living in the internet age with unlimited access to information and a documentary available for free, 25 years later, the case that was settled on August 18, 1994, remains the subject of speculation and misdirected outrage. The ability of a billion-dollar corporation to control public perception of the case, along with conservative lawmakers accepting billions of dollars from those corporations prompted sweeping changes in American tort law.
Once corporations gained control of the story, Stella Liebeck became a newly-minted millionaire grandmother, who got an easy payday. In reality, Stella Liebeck wasn’t looking for a major payday; she was looking for a fair settlement. She wasn’t a litigious woman who only filed the lawsuit against McDonald’s after the company disregarded the severity of her injuries.
The truth was that she was an elderly woman who endured extremely serious burn injuries to her pelvic region. Her injuries required surgery and skin grafts that cost her around $10,500 in 1994 (about $18,105.63 if adjusted for inflation in 2019).
Mrs. Liebeck never saw millions, but settled with McDonald’s for an undisclosed amount. According to her children, the undisclosed amount received by their mother went toward caring for her in her final years.
Stella Liebeck was a 79-year-old woman from Albuquerque, New Mexico. On Feb. 27, 1992, her grandson drove her to the local McDonald’s where she ordered a 49-cent cup of coffee from the drive-through window. Her grandson parked the car to allow Mrs. Liebeck to add cream and sugar to her coffee. The 1989 Ford Probe Mrs. Liebeck and her grandson were in did not have cup holders. So Mrs. Liebeck, reasonably, placed the cup between her knees to remove the lid and add her cream and sugar. As she did so, the entire cup of coffee spilled on her lap. The cotton pants she was wearing absorbed the hot liquid and held it against her skin. The 180-190° coffee scalded her thighs, buttocks, and groin. She suffered third-degree burns in her pelvic region and required skin grafts.
Initially, Mrs. Liebeck had no intention to sue. She just wanted McDonald’s to cover her medical bills. Her injuries were so severe that her medical bills amounted to about $10,500 and future medical bills were estimated at approximately $2,500. Mrs. Liebeck’s daughter also sought recovery for her lost income from driving her mother to different hospital visits of income. In total, Mrs. Liebeck sought to settle with McDonald’s for $20,000.
McDonald’s offered $800.
Liebeck sought the help of a personal injury attorney in a law office in Santa Fe, New Mexico. The firm she walked into just so happened to the be law office of an acquaintance familiar with Reed Morgan’s work on the previous hot liquid spill case.
At the time, Morgan was a plaintiff’s attorney running his law firm in Houston, Texas. Morgan’s practice emphasized assisting seaman injured as a result of working on vessels. However, he did work in other areas of personal injury law. Because he had settled a case similar to Liebeck’s, Morgan was aware of the long history of McDonald’s hot coffee spills and the related injuries.
“I thought at the time that whenever you can see a scenario like this where somebody is using a consumer product, and they’re doing something reasonable, it’s foreseeable that they’re going to spill a liquid—whether it’s a cold liquid or a hot liquid,” Morgan said. “I figured that when you wind up with deep third-degree burns and skin grafts, there’s got to be a better way for society to be functioning than buying drinks that are that scalding hot.”
He began his research by asking why Liebeck had gotten such deep burns. Through speaking with Dr. Ken Diller at the University of Texas at Austin, he discovered the science of which he based the case against McDonald’s.
“There was a lot of literature on [skin burns] dating all the way back to World War II,” Morgan said. “So, I learned that it was scientifically proven that there is a time-temperature ratio… the tables will tell you at what temperature how fast the average skin will burn.”
Once he saw the temperature the coffee was kept in the decanter at McDonald’s, he understood why Mrs. Liebeck had gotten such deep burns.
In speaking with Dr. Diller, Morgan learned that liquid with a temperature of 180-190° could lead to third-degree burns in as little as two to seven seconds, and especially so if clothing absorbs the liquid. This is the temperature that McDonald’s admitted to keeping their coffee, based on a consultant’s recommendation for optimal taste.
Morgan’s expert on thermodynamics testified that if the coffee had been served at 155°, it would’ve cooled enough to avoid injury.
According to Morgan, consumer studies put the ideal temperature for consumption of coffee between 145-155°.
“At that temperature, if you were to spill a hot liquid on your bare skin while wearing shorts, you would get a second-degree burn,” Morgan said.
McDonald’s initially claimed that its customers intended to consume the coffee after they made it to their intended destination. However, the company’s own internal research showed that most of its customers drink coffee while still in their car.
During discovery, Morgan and his team found that between 1982 and 1992, McDonald’s received more than 700 reports from consumers burned by their coffee. Reports varied in burn severity, but the company spent about $500,000 settling burn injury claims in those ten years.
This historical data strengthened Liebeck’s case because 700 complaints show that McDonald’s knew about the dangers of its coffee. Still, the business failed to address the dangerous temperature levels of its coffee.
After a weeklong trial, the 12-person jury used comparative negligence to find that McDonald’s was 80% at-fault for Mrs. Liebeck’s injuries. They awarded Mrs. Liebeck $200,000 but found her 20% at fault for her injuries thus reducing her award to $160,000. The jury then awarded Mrs. Liebeck another $2.7 million in punitive damages—or the total revenue McDonald’s makes from coffee sales in just two days. Punitive damages are a penalty to ensure that companies change their behavior. In essence, the jury said that Mrs. Liebeck did carry some blame for her injuries because she held the coffee improperly. At the end of the day, if McDonald’s served its coffee at a reasonable temperature, it would have been unlikely that Mrs. Liebeck’s injuries would’ve been so severe.
The parties eventually settled out of court, but the final figure of how much Mrs. Liebeck received is not public knowledge.
Still, it is the $2.7-million verdict that stands out in people’s minds when they think about the case.
In the mid-1990s, Stella Liebeck’s injuries were largely ignored. The media and lawmakers dismissed the facts of the case in favor of pointing to what they viewed as an outrageous jury award. There are three primary reasons the public remains so misinformed about the Liebeck case.
- The focus on the jury-awarded punitive damages
- A concerted political campaign to skew public opinion in favor of tort reform
- A failure to report the injuries distorted the case in the mind of the public.
The three elements kickstarted the move toward tort reform through capping damages and aided in the erosion of the 7th Amendment.
The thing that many people miss about personal injury cases is that they improve consumer safety. In fact, numerous reports say that the McDonald’s in Albuquerque when Liebeck was burned, now sells its coffee at 158°. At this temperature, a person who spills the liquid on themselves would suffer third-degree burns in about 60 seconds. This means that the margin of safety has increased as a direct consequence of this case.
More than tort reform, there is another reason that attorneys can learn from Liebeck v. McDonald’s. It’s a lesson in media training.
Morgan says that the one thing he would have done differently is speaking to the media.
“If I had to redo it, I would have been more accepting of anybody that wanted to do a television interview so I could get the truth about the science behind it out and what really happened,” Morgan said.
Morgan continues to practice law and is Of Counsel to The Carlson Law Firm. Since the Liebeck case, Morgan’s work has primarily emphasized assisting those who work in the maritime field dealing with life or death illnesses.
Do you want to hear more from attorney Reed Morgan on the Stella Liebeck case? Check out a bonus episode of The Verdict, our podcast where personal injury meets storytelling.
Your morning commute is taking longer than usual. You’ve finished your first cup of joe while waiting in bumper to bumper traffic, but your highway exit is finally within sight. You put your blinker on to switch lanes, but suddenly a motorcycle zips past you. Good thing you checked your side mirrors. Twice.
This exact scenario may soon be the reality for many Americans as legislatures across the nation begin debating the controversial topic of lane splitting. Even the National Highway Transportation Safety Administration (NHTSA) is suggesting more research be done to examine the pros and cons of lane splitting.
The stop-and-go of rush hour traffic may be slow and frustrating; however, slowed traffic requires careful attention. It is essential to watch for vehicles shifting lanes, abrupt stops, and, as more states adopt the law, the occasional motorcyclist lane splitting.
Lane splitting occurs when a bicyclist or a motorcyclist rides between lines of either stopped or slow-moving vehicles that are traveling in the same direction. Lane-splitting allows for the motorcyclist to move through traffic faster and bypass most traffic.
Whereas lane splitting involves riding between two lanes of traffic, lane filtering involes using the edge, or shoulder, of the roadway going forward in the same direction. Lane splitting and filtering may seem like similar maneuvers but are different in the eyes of the law. There are considerably more states that allow lane filtering.
Lane splitting is illegal in Texas, the only state that allows lane splitting explicitly is California. Traffic laws in Texas require vehicles to remain within a single lane of traffic on roads that are divided into two or more lanes.
This may not be the case for long. In December of 2018, Texas State Senator Kirk Watson introduced SB-273. This bill would allow lane splitting on certain highways in the event of heavy traffic. Lane splitting would only be permitted if:
The 86th Legislature adjourned with the bill stuck in committee. However, if reintroduced in the future, SB-273 would allow bikers in Texas to travel in between lanes when traffic conditions allow. Additionally, this bill can significantly help with Texas’s traffic congestion.
Lane splitting is a controversial topic amongst bikers and their state lawmakers. Traveling too close to other vehicles is always dangerous and can result in serious and life-threatening injuries.
Motorcyclists are smaller than other vehicles on roadways making their visibility considerably lower than their motor-vehicle counterparts. Motorcycles are automatically at a disadvantage when it comes to visibility; they are smaller than cars but can accelerate or decelerate faster, making it harder for other motorists to judge distance. It is recommended that bikers wear bright colors to increase their visibility.
Rear-end collisions account for 40% of all accidents on U.S. roadways. When vehicles are rear-ended, there is the possibility of minimal damage and minor injuries.
On the other hand, there are no minor fender benders when a motorcycle is involved. Bikers are at a higher risk of being injured in a rear-end incident. Lane splitting allows for bikers to avoid this potential collision. Bikers who lane split are less likely to suffer traumatic brain injuries, torso injuries, and even death. This is because allowing lane splitting protects bikers from potential rear ends from larger vehicles by giving them an escape route. Naturally, there is an inherent risk bikers face when moving in stopped or slowed traffic. Often, drivers may use the time to look at their phones, change the radio station, or other distractions that prevent them from paying attention to what’s up ahead.
Motorists on the highway often believe that bikers are not waiting “in line” when they lane split in traffic. This is a common misconception. On the contrary, lane splitting is beneficial for motorist in slow-moving traffic. Since the bike has moved out of the way, it allows each vehicle to be one spot closer to their final destination. The biker and the drivers both travel quicker when a biker participates in lane splitting.
For instance, a 2012 Belgian study found that if 10% of drivers switched to motorcycles that travel times would decrease by eight minutes per journey. A shorter commute not only benefits the drivers but the environment as well.
Often, when drivers watch bikers lane split from their stationary vehicles, they become green with envy. Some drivers are not keen on the idea that bikers are moving through traffic while they are at a stand-still.
There have been instances of drivers rage obstructing motorcyclists from traveling next to them. If lane splitting or filtering is allowed in your state, it is illegal to block a biker from legally doing so.
Not only will the driver be at fault if the motorcycle crashes as a result of their predatory driving, but they may also face criminal charges. Driving with the intent to cause harm or the threat of impact is illegal.
Lane splitting is a common practice across Europe. The United States seems to be following close behind. Currently, California is the only state the specifically allows this maneuver; however, there are several states considering adopting lane-splitting.
As states push towards the legalization of lane splitting, the public needs to be aware of the maneuvers guidelines.
If lane splitting is legal in your state, then it is one of the many benefits of having a motorcycle. While you’re busy helping your cities traffic congestion and cutting harmful vehicle emissions, it is important to remain safe while lane splitting. There are a few helpful tips to keep in mind:
- Avoid lane splitting while next to large vehicles such as semi-trucks and buses.
- Consider your environment. (Road conditions, lane width, weather conditions, etc..)
- Make yourself visible to other drivers, don’t travel in blind spots.
- Help other motorists see you by wearing brightly colored/reflective clothing.
- Riding on the shoulder is not considered lane splitting.
- Follow state lane-splitting speed laws.
If you or a loved one have suffered an injury resulting from a motorcycle collision, don’t hesitate to contact The Carlson Law Firm for a free consultation. We have experience advocating on behalf of motorcyclists that have been injured due to someone else’s negligence. Not only will we fight for maximum compensation, but we will use our resources to ensure you are receiving the medical treatment necessary to recover from your injuries.
Contact us today. We care, we can help.
Dogs play an important role in the lives of many Texans: They bring love, laughter, and companionship. But we have to remember; they are animals and have animal instincts, which means in certain scenarios they can lash out. That’s where Texas dog bite law comes in.
According to the American Veterinary Medical Association, about 4.5 million dog bites occur in the United States annually. Almost one in five people who have been bitten by a dog require medical attention, which is many times costly. Dog bites can happen with any breed of any size, and many attacks are the result of the dog owner’s negligence. This means that in many cases, the dog bite was preventable.
However, not all states have the same laws governing dog bites. Texas is a negligence, or one-bite-rule, state when it comes to dog bites. In order to recover damages, an injured person must show negligence on behalf of the dog owner.
A dog bite victim in Texas may recover compensation for their dog bite injuries on the grounds of negligence. So what exactly is negligence? Negligence is considered the lack of ordinary care, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. If a dog owner fails to handle their dog as a reasonable, prudent individual, a dog bite victim may initiate a negligent handling action. For example, a reasonable, prudent individual wouldn’t allow a stray dog into a yard where young children are playing.
To recover a negligent handling claim, a plaintiff must prove all of the following:
- The defendant owned or possessed an animal
- The defendant owed a duty to exercise reasonable care to prevent the animal from harming others
- The defendant failed to meet that duty
- The failure to meet the duty caused the plaintiffs injury
This type of action has an advantage because there is no need to demonstrate that the owner knew the dog’s vicious tendencies.
Texas’s negligence rule does not only apply to dog bites. It will also apply to other types of injuries caused by dogs. For example, if a large dog jumps on an older adult, knocks them down and causes a fracture, the injured person may bring a claim for damages against the dog’s owner. Once again, it must be proven that the dog’s owner knew the dog was aggressive or that the owner failed to use reasonable care to prevent the dog from causing harm to others.
Texas courts may apply a strict liability rule in cases where the dog is known to be vicious, dangerous, or mischievous, and the bite resulted from the dog’s known nature.
If a dog has bitten someone before, that dog may be classified as a dangerous dog regardless if the bite caused serious harm. In this context, strict liability means if a dangerous dog caused a person’s injury, the victim would not have to demonstrate that the dog’s owner also failed to use reasonable care to restrain the dog. The injured person would be able to recover damages by simply demonstrating that the dog was known to be dangerous before their injury.
To recover a ‘one bite rule’ a plaintiff must prove:
- The dog previously bit a person or acted like it wanted to
- The owner was aware of the dog’s previous conduct
- If neither of these conditions are met, the victim cannot recover under this doctrine
If an individual violates a law and causes an injury in which that law was designed to prevent, that individual may be presumed to have acted negligently. The negligence per se doctrine comes in to play in dog bite cases when a dog owner violates animal control laws such as requiring dogs to be on a leash.
The plaintiff must show:
- There was a violation of a statute
- The violation caused the injuries
A landlord or landowner in Texas can be held liable for failing to rid premises of a known dangerous dog. Another example, if the landlord is aware of a dog living on the premises, but does not keep common areas safe for residents or guests such as maintaining doors, gates or other barriers that would keep the dog away from people. The injury must have occurred in a common area under the control of the landlord and the landlord must have had actual or imputed knowledge of the particular dog’s vicious inclination.
The Texas law identifies a vicious dog as one that:
- Has bitten or scratched a person on three separate occasions.
- Has bitten or scratched a person and an attending physician presented an affidavit stating that the person’s life may have been endangered by the dog to the health authority on at least one occasion.
- Has killed another dog, cat, domestic pet, or livestock on at least one occasion or injured another animal so severely that the veterinarian presented an affidavit to the health authority advising the injured animal’s life was seriously endangered.
There are three ways that the law recognizes for an owner to learn that their dog is considered a dangerous dog:
- Your dog has attacked someone in the past and you are aware of it.
- The court has sent you a notice that they have found your dog to be a dangerous dog.
- Animal control has informed you that your dog is a dangerous dog.
A secure enclosure under Texas law means a fenced-in area that is:
- Prevents the dog from escaping
- Capable of preventing others from entering
- Clearly marked as containing a dangerous dog
- Inspected and approved by a local animal control authority
In Texas, dog owners are permitted to mount a defense based on the comparative negligence of the dog bite victim. Depending on the success of comparative negligence, the damages awarded are reduced by the degree of the plaintiff’s negligence. What this means is if it is found that the plaintiff’s own conduct was 20 percent responsible for causing the incident, the victim’s recovery will be reduced by 20 percent.
A Statute of Limitation is basically a deadline to file a dog bite lawsuit in Texas. Plaintiffs have two years to initiate their lawsuit or else forever lose their right to compensation.
A qualified dog bite lawyer can help victims seek compensation for:
- Past and future medical bills
- Pain and suffering
- Lost wages
- Psychological counseling to overcome emotional trauma
Texas dog bite law may not be as simple as it seems, especially if the attack caused serious injuries and lifelong emotional trauma. It is not likely to know the fair value of your injury claim without having your case evaluated by an experienced dog bite attorney. An attorney will be able to discuss your legal options and help you to navigate through the often complex legal system.
If you or someone you love has suffered a dog bite or attack, don’t hesitate to contact our seasoned Texas dog bite attorneys. We have a strong understanding of Texas dog bite law.
The Carlson Law Firm has devoted decades to protecting the rights and futures of injured victims and their families. We will advocate relentlessly until you receive the justice that you deserve. Let us navigate your situation and provide the legal guidance you require.
Contact us today for a free, no-obligation consultation. We care, we can help.
Many people are afraid of the probate process. This is often because we hear the horror stories of the process dragging out for years or even decades. But one person’s story may not actually be the story you’ll tell. This is because every probate process varies by state. Each state has its own requirements and procedures. Further, each individual case is unique. Determining whether your loved one’s will requires a simple or complex probate process is actually fairly simple.
The probate process involves paperwork and court appearances.
Probate is the formal process that takes place after someone dies. It gives recognition to the will and appoints the executor or personal representative who will administer the estate and distribute assets to the rightful heirs as established by the will. The process also involves proving that a deceased person’s will is valid and paying all necessary debts. To do so, an executor can present the will to a court on their own or hire an attorney to help them through the process.
Depending on the size and potential challenges, probate can be classified as simplified or complex.
The general process of probate is once a person dies, the individual named as the executor of the will presents it to a county judge. It is this act that triggers the probate process. Simplified and complex probate each go through a similar process. For example, all heirs and beneficiaries named will be notified by the executor once probate is opened. In addition, the personal representative must also notify all creditors in the manner required by their governing state’s law. From there, state law determines how long creditors have to file a claim against the estate.
Often called summary probate, the simplified probate procedure is typically available for small estates. Individual state laws determine an estate’s size. Further, U.S. states have different definitions of summary probate. But most states have summary probate as an option if the estate size doesn’t exceed a certain limit.
The easiest way to determine if your loved one’s estate meets your state’s limitations is to take inventory of a decedent’s assets. Once that it is done, add up the value of the estate and ensure that it does not exceed the state’s limit on summary probate.
Take note, there are some assets that don’t go through regular probate and are not counted toward the summer probate estate. Those assets include:
- Joint tenancy property
- Retirement benefits
- Payable-on-death bank accounts
Texas offers some probate shortcuts for what are considered small estates. The state has procedures that make it easy to transfer property left by a person who has died.
Texas has a procedure that allows inheritors to skip probate altogether. In Texas, if the deceased’s entire estate, not including the homestead and other exempt property, is $75,000 or less, they may be able to use an out-of-court affidavit. Further, the out-of-court affidavit is available in Texas if there is no will.
The affidavit must include the following information:
- A statement that the necessary conditions are met
- List of all known estate assets and debts
- List of assets the inheritor claims are exempt
- Names and addresses of each inheritor the relationship between the inheritors and the deceased person to establish their legal right to inherit the property
- Two witnesses and each inheritor must sign the affidavit
Once the affidavit is submitted, there is a 30-day waiting period. Furthermore, witnesses must have no legal right to inherit the property. This procedure makes it easier to transfer the deceased’s property without the normal probate court proceedings. An out-of-court affidavit typically saves time, money and the hassle.
Texas also has a simplified probate process for smaller estates. This process can be tapped when an executor files a written request with the local probate court asking to use the simplified procedure. Generally, the simple probate process can be used when the value of the property doesn’t’ exceed the value of the homestead, exempt property, and what’s needed to pay the family allowance and certain creditors, according to the Texas Estates Code.
Even in the simplified probate process, the executor must still file an inventory, the appraised value of the property and a list of creditor claims against the estate. Sometimes, the court will require the executor to pay a bond—which is a type of insurance that protects the estate from wrongful conduct by the executor.
There are real issues that can take probate from a simple process to a more complicated process. Often, probate can go from simple to complex when disputes arise in a large estate. Complex probate typically involves the following situations:
Will contests. An interested person may choose to challenge the entire Will’s validity.
Administrator appointments. In the event the deceased did not leave a will and the family cannot agree on who should serve as an executor, there may be a hearing to establish the estate’s administrator.
Executor fee disputes. Whenever there is an interested person who believes the personal representative has overcharged the estate. There are steps that can be taken to recoup the overcharged.
Formal accountings. This occurs when an interested party believes the executor is not providing all of the relevant information.
Spousal elective share. If a surviving spouse exercises the right to claim a portion of the estate.
Guardianship disputes. Disputes over the guardianship of minors aren’t technically a probate matter; however, the court hears these matter just the same.
Trustee removals. If a will forms a trust, a dispute over the Trustee’s appointment may result in probate litigation.
Not all assets are required to go through the probate process. However, there are some property items that are always subject to probate. These items are typically called the “probate estate” and require probate court proceedings. Essentially, probate proceedings are only necessary for a property that was:
- Owned solely in the name of the deceased person (example: real estate or a car title in that person’s name alone.)
- A share of property owned as “tenants in common” (example: investments)
Typically, it’s the responsibility of the executor named in the will to open a case in probate court and follow the probate process through to its conclusion. With this in mind, if there is no will or the will doesn’t name an executor, the court will appoint someone to serve in the role.
Customarily, most assets don’t need to go through probate. Probate may not be necessary if the deceased person was married, co-owned most of their possessions or did some planning to avoid probate.
The assets that don’t typically need to go through probate include the following:
- Retirement accounts (IRAs or 401ks)
- Pension plan distribution
- Wages, salary or commissions owed to the deceased (up to a certain amount)
- Household goods and other items
- Vehicles that go to immediate family members under state law
- Life insurance proceeds
- Property in a living trust
- Funds in a payable-on-death bank account
- Securities registered in a transfer-on-death form
- The U.S. savings bonds registered in the pay-on-death form
- Co-owned U.S. savings bonds
- Property held in joint tenancy with right of survivorship
- Property owned as tenants by the entirety with a spouse (not available in all states)
Some states allow for real estate, cars, boats to be transferred after a person dies. These are called transfer-on-death (TOD) deeds. A qualified estate planning attorney would be able to help you determine if this is an option for you in your state.
The executor’s responsibility extends far beyond than handing out money to the heirs and beneficiaries of a will. The executor will then need to prepare an inventory of the deceased’s assets. The inventory must include the following two things:
- A list of the deceased’s possessions
- The value of those possessions
Once the inventory is completed, the law may require the executor to post a bond—an insurance-like policy. The bonding company will reimburse beneficiaries or heirs for assets stolen during the administration of the estate.
The executor must settle all outstanding balances the deceased is carrying with his, her or their various creditors. As such, during the probate process, the executor is responsible for handling the following:
- Pay any debts of the estate
- File the last tax return
- Pay required federal and state estate taxes
Lastly, the executor is required to have a final statement of all debts and taxes paid.
The Carlson Law Firm has a team of experienced and dedicated Texas Probate Attorneys. Our firm operates with a client-first mindset and will be there with you every step of the way through the probate person. Even simple probate is not as simple as it sounds. The entire process requires knowledge of what needs to be filed with the court at different points throughout the process.
Contact us today for a free case evaluation, or to schedule an appointment with a compassionate Texas probate attorney.
It’s a beautiful summer day and you are at the beach enjoying the sound of the crashing waves. Suddenly, your relaxing vacation turns into tragedy. A young man gets pulled ashore after struggling to keep afloat and he isn’t breathing. Bystanders are just watching. Your instincts tell you to try to perform CPR but you are fearful of what might happen if your good intentions don’t go as planned. Will you face liability?
Having knowledge about the Good Samaritan Law in this type of terrifying situation could play a significant factor in potentially saving someone’s life.
The Texas Good Samaritan Law states, “a person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency”. In a nutshell, this law protects those who act in good faith to help others from facing a lawsuit if something were to go wrong while rendering aid.
Texas wants to encourage bystanders at the scene of an emergency to render aid to someone in need without the fear of liability if things don’t turn out well for the victim. Some individuals who witness an emergency may hesitate to help because they question if they can be sued for any additional injuries. Unfortunately, without the Good Samaritan Law, fewer individuals would step in to help save a life.
For example, too often we hear the heartbreaking stories of children losing their lives because they are left in hot cars. Videos have surfaced of people standing by while the child is still trapped in the scorching hot vehicle waiting for emergency personnel to arrive. They are hesitant to break a window in an attempt to free the child because they fear a lawsuit. In these situations, minutes can be the difference between life and death.
Good Samaritan laws could also play a critical role in decreasing the number of fatalities on the roadways in the United States each year. According to data from the National Highway Transportation Safety Administration (NHTSA), fatal traffic collisions are on the rise.
The Good Samaritan Law protects interveners who act selflessly with good intentions to protect someone they perceive to be in danger. In general, the current Texas Good Samaritan laws will exempt those who acted in good faith of any financial liability for harm done. The following situations are examples:
- A bystander administers CPR on someone after a near drowning incident but accidentally breaks a rib during the process.
- A witness pulls a car crash victim out of a burning vehicle but dislocates the victim’s shoulder in the act.
- Someone walks by a vehicle and notices a baby suffering in a locked car on a hot day. They break the vehicle’s window to help the child in distress.
Although the Texas Good Samaritan Law is meant to protect individuals who rendered aid during an emergency from civil liability, there are exceptions to the rule.
The following are not protected by the law:
- Anyone who causes harm through purposeful acts or wanton negligence.
- Professionals who help with an expectation of payment for their services.
- Anyone who was at the scene of an emergency because they were soliciting business or a type of service.
- Anyone who regularly administers care, such as individuals working in a hospital or ER.
- The individual whose actions caused the injuries, such as a drunk driver who offers emergency help to the crash victim.
Any bystander can step in and act as a Good Samaritan, with or without training. But, nobody wants to face a lawsuit when they were only trying to help. Taking a First Aid, CPR, and AED class will strengthen your ability to properly administer basic emergency services. Not only will you gain the confidence to help save a life, but also prevent injuries from worsening before emergency personnel arrives.
When it comes to facing liability, any actions a caregiver takes are judged against the reasonable person standard. In other words, what would a reasonable person do if they were in the same circumstances.
This means that if the actions the Good Samaritan took were within what the judge or jury in a civil trial considers reasonable person behavior, he or she will usually be protected. On the other hand, if the Good Samaritan makes outrageous mistakes, known as gross negligence, and harms the patient, he or she may be held liable.
Texas Good Samaritan Laws protect good people doing good things. If you witness a negligent act such as a car crash, it’s OK to help injured parties.
Encourage the injured party to seek a good lawyer who cares and can help.