Law Alerts
TEXAS LAW ALERT — WINTER 2003/2004 ISSUE
DAY-CARE DANGERS
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It is an unfortunate fact that those most vulnerable and least able to protect themselves are often those at the highest risk for abuse or neglect. Elderly persons confined to nursing homes, the mentally ill and the retarded, and the very ill are often targets for abuse or the victims of neglect because they are least able to protect themselves. To this list, we can add one more group: children in day care. While the vast majority of day-care facilities and day-care providers are trustworthy and responsible, cases of abuse or neglect, while rare, do occur.
Preventive Measures
The good news is that such abuse or neglect is usually preventable. Before enrolling a child in day care, be sure to visit the facility. It can be a good idea to drop by without an appointment, so you can see how the center operates when it is not expecting outside visitors. Make sure the facility welcomes parents in all areas, and that it does not have any “no-go” areas. Ask if the center performs criminal background checks on all of its employees and volunteers, and ask if the center screens for other, noncriminal issues such as drug abuse or emotional problems.
Ask the day-care facility how it handles discipline–when children may be disciplined, by whom, and how. Make sure that the children being cared for appear to be relaxed, happy, and engaged in constructive activities such as learning or play.
You may also want to take steps to guard your child against dangers that could occur outside the facility itself. If the facility takes the children on field trips, check to see if the transportation is safe and find out how many adults will accompany the children to insure that everyone returns unharmed.
Find out what the day-care center’s policies are about having children picked up at the end of the day, and who will be allowed to claim your child. It is a good idea to identify, in writing, who is allowed to take your child from the facility. Find out what will be done if your child becomes seriously ill while at the day-care facility, and what steps will be taken if the facility cannot get in touch with you immediately.
Check for Licensing Check to see that the facility is listed with or licensed by the Texas Department of Protective and Regulatory Services (DPRS). Depending on its size, a day-care center must either be listed with, registered with, or licensed by the DPRS. Although some smaller facilities may not be subject to DPRS inspections, larger ones must be licensed and are regularly inspected to be sure that state standards are being met. Among other things, these regulations require that an appropriate number of adult day-care providers are available to take care of the children. A list of licensed day-care providers in your area is available from the DPRS (toll-free 1-800-862-5252), and you can also get information regarding complaints made against a facility.
Avoid Abuse Additional steps should be taken to insure that your child is not the victim of intentional abuse (as opposed to neglect) while he or she is at the day-care facility. When you visit, check to see that the bathrooms do not contain areas where children can be isolated, and find out how the facility handles toileting issues. Approximately two-thirds of all cases of child sexual abuse at day-care facilities occur in the bathroom. Also make sure that children are well supervised during naptime. Day-care providers will sometimes leave the room when the children are sleeping, increasing the opportunities for someone to abuse a child.
It is important that any contact between the children and those not working at the facility is strictly supervised. Abuse often is not the work of the day-care teacher but of those not directly involved in caring for the children, such as bus drivers, janitors, and relatives of those who operate the day-care center. One study suggests that as many as one-third of reported abuse occurs in the hands of the day-care provider’s family members who do not actually work for the day-care center.
Keep your eyes open for signs of abuse or neglect. If you suspect that your child has been abused or neglected at a day-care facility, it is important to act promptly. If your child is old enough, try talking with him or her to find out what happened, keeping in mind that children are sometimes not entirely reliable sources of information. You might also contact other parents who use the same day-care facility and ask if they have noticed any of the same signs of abuse or neglect in their children as you have seen in yours. If you still suspect something is wrong, contact the DPRS or, if the matter is very serious and places your child or others in immediate danger, contact the local police.
If the investigation reveals that abuse or neglect has occurred, call our office. We know how important your children are. We will go to work for you to get you everything you deserve under the law, AND to prevent the same problem from happening to someone else.
WARNING SIGNS OF DAY-CARE ABUSE
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* Unexplained bruises or other injuries, especially if they are repeated.
* Continued crying before being taken to day care.
* Unusual emotional behavior, ranging from complete emotional withdrawal to being overly “clingy” or extremely fearful.
* Bleeding or bruising around the genitals or asking to wear additional layers of unnecessary clothing to the day-care facility may be a sign of sexual abuse.
* Note that Texas law requires anyone who suspects that a child is being abused to report the suspected abuse to the proper authorities. If the report is made in good faith, the person making the report is not liable if it turns out to be false. The Texas Department of Protective and Regulatory Services’ Child Abuse Hotline to report suspected cases of abuse is 1-800-252-5400.
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HMO Pays Large Verdict Texas has a law that requires HMOs to use ordinary care and prudence in deciding what kind of medical treatment they will pay for. In one of the first cases of its kind, a jury recently returned a large verdict against an HMO because of this law.
The evidence showed that the HMO decided that the hospital care provided for an elderly HMO member was too expensive, and it refused to pay for it. In order to convince the doctor to release the patient from the hospital, the HMO said it would arrange for similar care to be provided in the patient’s home, at a much lower cost. However, the HMO never made any such arrangements and the patient died. The jury found that the cause of his death was the fact that the patient was not provided with oxygen and nursing care.
The jury awarded the family of the patient $13 million, including $10 million in punitive damages to punish the HMO for its behavior. We can only hope that this verdict will cause HMOs to review their treatment decisions more carefully.
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With the government involved more and more in our lives, there is an increased chance that you could be injured because of the government’s negligence. Since the Middle Ages, the law of England has followed the edict that the “king can do no wrong,” and, thus, if you have been hurt by the king or his agents, that is your own bad luck. Although the United States has no king, we do follow English law, including this idea of “sovereign immunity.” In its modern form, sovereign immunity prevents people from suing the government unless the government gives them permission to do so.
Because sovereign immunity can unfairly result in injured persons not being compensated for their injuries, most states and the federal government have passed laws called Tort Claims Acts. These laws give citizens advance permission to sue for certain kinds of injuries caused by the negligence of government employees. If a claim is subject to the Act, the government is liable in much the same way a private person can be liable.
However, the kinds of claims permitted by the Act are fewer than the kinds of claims that can be brought against a private person. For example, a citizen may be able to sue for injuries caused by a police officer’s negligent driving but not for the police department’s negligent failure to catch the thief who robbed him or her. Additionally, claims against the government are subject to special rules and special time limits that differ from those in a normal lawsuit.
Don’t despair because your injury was caused by the government. You do have rights, and we will help you protect them.
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The following exchange between an attorney and witness actually took place in a courtroom.
Attorney: Are you going to be generally discussing that issue?
Witness: If asked a question about it, yes.
Attorney: Have you, in your mind, thought of a question that might be asked that you’re going to offer an opinion on? I’m not going to throw stones into the wind trying to guess what you’re going to say.
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Although record-low financing rates mean that many people are choosing to buy a new car, others are still in the market for a good, reliable used car. If you are looking for a used car, keep the following tips in mind:
1. Decide what features you need and how much you can spend before you start shopping. A car that you can’t afford or does not do what you need is no bargain.
2. Whether you buy from the car’s current owner or a car dealer, be sure to take the car for a test drive and have it inspected by a trustworthy mechanic.
3. Do a little research to determine if you are paying the market value for the car. The Internet, your local library, or even the want ads in the newspaper have information to help you decide how much a car is truly worth.
4. Before signing a contract to buy a car, for an automobile loan, or for a warranty, make sure you understand all of the terms. Once you sign, you will be bound by them.
5. Take steps to have insurance in place before you buy. Lenders will usually require proof that the car is insured before you can drive it home.
6. Make sure to get title to the car. Dealers are required to file the necessary paperwork within 20 days, and you should be named on the title even if you have a car loan. The practice of “holding title,” i.e., not giving you title until the car is paid for, is not legal.
MISSING REINDEER COSTS INJURED MAN
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Preserving evidence is always an important step that you can take to help your case if you are injured by someone else’s negligence. A recent case shows the importance of this advice.
The case arose when a decorative reindeer fell on the head of a shopper in a store. The patron was stunned but did not think he was badly hurt. Later, when he began to suffer from back and neck pain, he sued the store. Although the store had investigated the incident, it had not kept the reindeer that fell on the patron’s head, and the parties could not agree about how much the reindeer weighed. The patron claimed it was made of wood and weighed about 10 pounds; the store claimed it was made of paper-mâché and weighed 8 ounces.
The judge told the jurors that, because the store knew the shopper had been hurt but had not saved the evidence, they should presume the reindeer weighed 10 pounds, and the jury returned a verdict for $76,000. The Texas Supreme Court overruled that decision and found that the store had no obligation to keep the reindeer, and that the judge’s instruction to the jury was improper. Ultimately, if the reindeer had been saved, the issue would not have come up, and the injured patron could have kept his award.
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The period of time following an accident is one of confusion and uncertainty. There are many things to take care of. Hiring a good lawyer is one of them.
Many times, people don’t know where to go when they need legal help. If you or a loved one has been injured in an accident, call us. We will vigorously represent you and make sure that you are justly compensated for your injuries. That’s our job.