0After working 17 hours straight at a natural gas well in Ohio, Timothy Roth and three other crew members climbed into their company truck around 10 o’clock one night last July and began their four-hour drive back to their drilling service company’s shop in West Virginia.
When they were just 10 minutes from home, the driver fell asleep at the wheel. The truck veered off the highway and slammed into a sign that sheared off part of the vehicle’s side, killing Mr. Roth.
About two months before the fatal crash, Mr. Roth nearly died in a similar accident when another co-worker with the same company fell asleep at the wheel after a long shift and ran the company’s truck into a pole. In 2009, Mr. Roth’s employer was penalized in New York, Pennsylvania and Utah for violations like “requiring or permitting” its oil field truckers to drive after working for 14 hours, the legal limit.
Over the past decade, more than 300 oil and gas workers like Mr. Roth were killed in highway crashes, the largest cause of fatalities in the industry. Many of these deaths were due in part to oil field exemptions from highway safety rules that allow truckers to work longer hours than drivers in most other industries, according to safety and health experts.
Many oil field truckers say that while these exemptions help them earn more money, they are routinely used to pressure workers into driving after shifts that are 20 hours or longer.
“Just because you are on an oil field site does not make you any less vulnerable to the effects of fatigue!” Garr Farrell, an oil service driver in Ore City, Tex., wrote last year to federal highway safety regulators. In his letter, Mr. Farrell complained that his managers had used the oil field exemptions to force him to wait, without anywhere to sleep, for 36 hours at one well site before he could unload his drilling supplies and get back on the highway.
Last year, the National Transportation Safety Board said it “strongly opposed” the oil field exemptions because they raise the risk of crashes.
This threat will grow substantially in coming years, safety advocates warn. According to federal officials, more than 200,000 new oil and gas wells will be drilled nationwide over the next decade. And the drilling technique used at more than 90 percent of these wells, known as hydraulic fracturing, or fracking, leads to far more trucks on the road — roughly 500 to 1,500 truck trips per well — than traditional drilling, partly because fracking requires millions of gallons of water per well.
The new drilling has been an economic boon to the country, adding millions of dollars in local tax revenues and royalty payments and creating hundreds of thousands of jobs, many of them providing high pay to unskilled laborers in areas with double-digit unemployment.
But the jobs are also hazardous, with fatality rates that are seven times the national average across all industries. Nearly a third of the 648 deaths of oil field workers from 2003 through 2008 were in highway crashes, according to the most recent data analyzed by the federal Centers for Disease Control and Prevention. By contrast, highway crashes caused roughly a fifth of workplace fatalities across all industries in 2010.
“The growth of this industry is a big concern because it’s adding so many more trucks on the roads and its drivers don’t have to follow the same rules as others,” said Henry Jasny, a lawyer for Advocates for Highway and Auto Safety.
Bending the Rules
In 2005, as the drilling boom accelerated, federal labor officials noticed a worrisome trend: fatalities among oil and gas workers rose 15 percent from 2003 to 2004. After investigating, the C.D.C. found that with the growth of the industry, not only were more workers dying but, more surprising, the fatality rate was increasing, meaning the relative risk was rising. Shifts grew longer, more inexperienced workers were hired and older rigs were being pressed into service, the agency concluded.
“Unless changes are made to increase worker safety, the high fatality rates described in this report are likely to continue,” the agency warned, citing the growth of the industry and its trucking exemptions.
Some worker safety experts point to other factors contributing to the industry’s fatality rate. Drug use is common among workers at some sites. Few workers are unionized, meaning they are less able to complain about safety problems without fear of being fired.
Some experts have called for increased oversight. An analysis by The New York Times of more than 50,000 inspection reports indicates that as the number of drilling rigs rose by more than 22 percent in 2011 from the prior year, the number of inspections at such work sites fell by 12 percent.
David Michaels, an assistant secretary of labor with the Occupational Safety and Health Administration, said that his staff was aggressive about enforcement but that companies were not required to alert his agency when their truckers crashed on public roads. Nor do they have to inform his agency when drilling starts, making timely inspections difficult, he added.
By contrast, mining companies are required to alert the federal Mine Safety and Health Administration about new sites. While there are far fewer active oil and gas drilling sites in the country than underground and surface mining sites, more drilling industry workers than miners typically die each year.
Oil and gas workers also crash because their trucks are frequently in disrepair, the police say. For example, data from the Pennsylvania State Police indicates that 40 percent of 2,200 oil and gas industry trucks inspected from 2009 to this February were in such bad condition that they had to be taken off the roads.
Oil service companies also often circumvent highway safety rules.
For example, Mr. Roth’s employer, Energy Services, based in Grand Junction, Colo., was cited repeatedly in 2009 for allowing or requiring truckers to drive after the legal limit of 14 hours per shift. The company lost its federal transportation registration and was fined $21,700 in 2010 for various road safety violations.
But soon after losing its registration, Energy Services officials said in court papers that they had teamed up with another company, Energy Specialties, to continue operating with a new federal registration number, crossing out one company’s name and writing by hand the other’s name over it in drivers’ logs.
Mary Stacy, a lawyer for Energy Services, said the company declined to comment. Energy Specialties also declined to respond to repeated requests for comment.
In March, the Government Accountability Office criticized federal highway regulators for their failure to detect commercial truckers — widely known as “chameleon carriers” — that use shell companies to get around safety rules.
Reward and Risk
Despite the dangers of working in the drilling industry, jobs are filled quickly because they pay well, sometimes more than $2,000 a week, and many require minimal training.
After serving a six-year prison sentence on several gun and drug charges, Mr. Roth, 36, was delighted when he landed a job for nearly $14 an hour with Energy Services.
“He just kept saying, ‘Baby, this is going to change everything, I promise,’ ” said his wife, Crystal Roth, 30, adding that they were just happy to no longer have to eat day-old castoffs from a bakery for dinner.
But Ms. Roth said she knew almost immediately that her husband and his crew were working too hard because some days they were drinking five super-caffeinated energy drinks each to stay awake during shifts that lasted up to 20 hours, she said.
On the day of his fatal crash, Mr. Roth’s back was still sore from another truck accident about 10 weeks earlier. No one died in that crash, but it was also caused by a co-worker who fell asleep at the wheel, according to Ms. Roth.
In court papers, the supervisor of Mr. Roth’s crew and two other workers described how, they said, the company taught drivers to falsify their logbooks.
“All you got to do is say that you went into one of the campers and fell asleep for a couple hours, when actually you’re out there working,” Mike Lowther, one of the crew members, recalled being instructed. Mr. Lowther, who was driving, was injured in the crash that killed Mr. Roth, and he is suing the company, as is Mr. Roth’s wife.
Energy Services denied these statements in court documents, saying it had told the men to invoke the industry’s exemptions if they needed to justify their long hours in their logbooks.
The crew manager, Jestus Wade, “told them that because we work in the oil and gas field that there are exceptions to the logbook, but not to lie,” the company said in court documents.
The number of Americans killed in auto crashes has been falling, but the number of deaths from crashes involving large trucks climbed 8.7 percent from 2009 to 2010, according to federal transportation data.
Across all industries, highway crashes are a leading cause of death among workers. As a result, federal regulators set strict safety rules for commercial truckers that dictate how long they can drive.
But for almost five decades, the oil and gas industry has enjoyed several exemptions to these rules that allow many of its truckers to work longer.
For example, most commercial truckers must stop driving no later than 14 hours after their workday begins. Many oil and gas industry drivers, however, do not have to count time spent waiting at the well site while other crews finish their tasks. These wait times can sometimes stretch over 10 hours.
If most commercial truckers work 60 hours over seven consecutive days, they must take at least 34 hours off so they can get two full nights of sleep. Oil and gas truckers who work that long are required to take only 24 hours off.
The oil field exemptions were granted in the 1960s after officials in the industry argued that its drivers needed more flexibility in their schedules.
Since then, the exemptions have survived repeated attempts to remove them.
In 2000, federal highway authorities concluded that removing some of the exemptions would improve highway safety by allowing “drivers to get the restorative sleep the research suggests they need.” After the industry lobbied Congress, the exemptions were left intact.
Other industries like utilities and construction also have exemptions for some of their truckers, and Shashunga Clayton, a spokeswoman for the Federal Motor Carrier Safety Administration, emphasized that the oil field exemptions did not apply to all trucks in the oil and gas industry.
But many safety advocates say oil and gas companies routinely apply the exemptions to vehicles that are not covered by them, like the type of pickup truck that Mr. Roth was in or the large tankers that haul waste and water. Enforcing the rules is difficult, said the Commercial Vehicle Safety Alliance, an association of police and highway authorities, because federal regulators do not provide a list of trucks that qualify for the exemptions.
In 2010, federal authorities proposed revisions to highway regulations. Dozens of executives from trucking and oil and gas companies submitted comments.
Changing the rules would “require more drivers to do the same amount of work in a time when we are having difficulty recruiting enough drivers,” wrote Kenneth Aker, operations manager for Elite Transportation, which has offices in Ohio and South Dakota. Others argued that companies would have to hire more inexperienced drivers, making roads less safe.
In written comments to federal regulators, safety advocates — like the National Transportation Safety Board, the federal agency responsible for accident investigations — disagreed.
Some oil field truckers also questioned the exemptions.
“Oil field crews only work 12 hours and go home, or to a motel,” wrote Mr. Farrell, the Texas oil service driver who complained to regulators. “It is UNSAFE to expect truck drivers to work longer than that.”
In December, the Federal Motor Carrier Safety Administration declined to eliminate the oil and gas industry exemptions, explaining that the exemptions had “been in place for nearly 50 years” and were clear enough.
by By IAN URBINA - New York Times on May 15th, 2012
by Brenda Bell - Austin American Statesman on March 18th, 2012
A 61-year-old father visiting his grown children in Austin, run over on the sidewalk outside a grocery store on Guadalupe Street. Killed instantly.A kindergartner struck down before his mother's eyes when an SUV swerved in the parking lot of a Northeast Austin apartment complex. Dead at the scene.
A 53-year-old administrator at a patent law firm, dragged by a city bus after she was hit while crossing the street with the light. Died a week later.
A 22-year-old University of Texas soccer player, nearly killed by a hit-and-run driver in a crosswalk downtown. Now in rehab for brain injuries.
Three dead, one severely injured: a snapshot of the deadly encounters between cars and people on Austin streets in just the first 10 weeks of 2012.
"I'm horrified," said Annick Beaudet, project manager for the city's bicycle and pedestrian program.
Last year marked an 83 percent increase in auto-pedestrian deaths in Austin: There were 21, plus a single auto-bike fatality, compared with a dozen in 2010.
This year, eight people, including one walking his bike, have already died in collisions with motor vehicles. All but one happened after dark or at dusk. One-third were hit-and-runs.
The rash of deaths, in a city that sees itself as friendly to alternative transportation modes and at a time when overall traffic fatalities are falling, has aroused concern.
"My own personal feeling is it seems like it's going up," said Austin Police Department Detective Michael McCarter, one of the vehicular homicide officers who shut down Guadalupe Street for six hours Feb. 19 to investigate the hit-and-run that killed Dik Van Meerten, 61, and seriously injured Sarah Lee Parker, 21. The driver of the SUV that jumped the curb, 59-year-old Linda Woodman, was charged with intoxication manslaughter and intoxication assault.
"People don't get that too many people are getting killed in auto-pedestrian crashes, and almost every one can be prevented," said Austin Police Chief Art Acevedo.
None of the pedestrian deaths in 2011 occurred in downtown Austin, where the city wants to encourage a vibrant walking and biking scene. But statistics show that the likelihood of being hit by a car is higher there than in any other neighborhood, and "the potential for life-threatening injuries is always there," said Lt. Ely Reyes with the Police Department's traffic enforcement division.
Once the South by Southwest crowds are gone, Reyes said, residents can expect renewed enforcement of auto-pedestrian laws — including sting operations using plainclothes police downtown and at other high-risk intersections in the city.
Like the unpopular two-week crackdown by police last fall, the initiative is pegged to a list of more than 100 locations that have had at least three collisions between vehicles and pedestrians or bicyclists in the past three years — all told, 480 crashes. The street that appears most frequently on the list, with 19 crash-prone locations along its eight-mile length, is also the city's most prominent: Congress Avenue. But Congress is not the most deadly thoroughfare.
That distinction, according to an American-Statesman analysis of Police Department and Federal Highway Administration statistics, belongs to Interstate 35. More than one-third of auto-pedestrian fatalities in 2011 took place along I-35 and its frontage roads.
Meanwhile, fatalities from other motor vehicle collisions keep falling — from 43 in 2005 to 32 in 2011, a 25 percent reduction. That mirrors a national trend that has been under way for more than a decade.
In Austin, the statistical result is that pedestrians now account for an increasingly larger proportion of all traffic deaths. According to police records, about 25 percent of total traffic fatalities in 2009 and 2010 were pedestrians. In 2011, 40 percent were. During the first 10 weeks of 2012, 50 percent were.
Why are pedestrian fatalities resisting the downward trend?
For starters, Acevedo cites Austin's reputation "as one of the heaviest drinking cities in the country. You throw alcohol into the mix, whether it's drivers or pedestrians, and you have a problem."
But the police chief also blames local attitudes.
"Drivers think (pedestrians) don't have the right to cross the street, and pedestrians think they can jump out at the last second," he said. "It used to be ... that when a pedestrian set foot in an intersection, that people stopped. I think it's a commentary on society that we've lost that respect."
A related issue, said Acevedo, is "the huge number of hit-and-runs," which he calls both a local and statewide problem. The rate of hit-and-runs in Austin — accounting for more than one-third of auto-pedestrian deaths this year — is about 50 percent above the national rate.
In Texas, the criminal charge is "failure to stop and render aid," a third-degree felony with a maximum penalty of five years in prison. Sentences are often probated, and drivers typically keep their licenses. Acevedo said the Legislature needs to take "a really hard look" at stiffer punishment.
"We have to have penalties, whether it's revoking your license or jail time, that would encourage people to stay" at the scene instead of fleeing, Acevedo said.
Who's at fault?
Ask a cop why people get hit by cars, and the answer is quick: Almost always because they messed up.
"In most of these cases it's the pedestrian that's running across the highway, crossing against the light," Reyes said. "About 90 percent of these collisions are caused by them."
Except when they're not. None of the collisions cited at the beginning of this story was the fault of the pedestrian who was killed or injured. In one instance, the victims weren't even in the street, but standing on the sidewalk.
Those cases represent "an anomaly you can't plan for," Reyes said. "No amount of enforcement effort would have prevented that."
But police say it does make sense to map where collisions between vehicles and pedestrians or bicyclists tend to occur, and focus their resources there.
The first such enforcement initiative took place from Oct. 24 to Nov. 8, "utilized a lot of resources, a lot of motorcycle officers (who) spent their entire shift" writing tickets, Reyes said. Pedestrians got 1,336 citations and warnings, for offenses such as failure to observe traffic signals, panhandling or stepping into roadways midblock. Drivers got 174.
That lopsided scorecard is par for the course. Between 2008 and 2010, Austin police issued nearly 11,000 citations for violations of auto-pedestrian laws; only 7 percent went to drivers.
Acevedo promises that the second phase of the initiative, using police officers as decoys, will target motorists who enter crosswalks illegally — which often occurs when turning right or left without checking for pedestrian traffic. In the Los Angeles area, where Acevedo once worked in law enforcement, similar stings "had tremendous results — auto-pedestrian collisions went way down," the chief said.
That hasn't happened in Austin, where the more immediate effect of last year's crackdown was outrage.
Elana James, whose Hot Club of Cowtown band often plays the Continental Club, was stopped by an officer at 2:30 a.m. for jaywalking across South Congress Avenue after a gig.
"I didn't even know there was an ordinance against it," she said. "It's absolutely preposterous. I'm not drunk — why should I be penalized?" James said the court reduced her $210 fine to $50, and she "ran out of time" to keep fighting it.
Dale Boudreaux, owner of an energy company in Lafayette, La., was turning left onto Sixth Street from Congress when he was ticketed for failure to yield right of way to pedestrians — a group of Occupy Austin protesters.
"I didn't see anyone in the crosswalk — they were on the sidewalk," said Boudreaux. He said he paid a $167 fine and took an online defensive driving course to keep the offense off his driving record.
"It was a lot of hassle for me," Boudreaux said. "Did I ever get a ticket before? Yes. Did I ever get a ticket for a pedestrian thing? Never."
Brian Davies was working as a bike messenger downtown when he was cited for riding the wrong way on West Sixth Street. "A warning is one thing, but to instantly give a $250 ticket, no," Davies said.
"Why not crack down on people on their cellphones? How about the 3-foot rule? How many tickets have they given for that?"
A city ordinance passed in 2009 requires vehicles to keep at least 3 feet away when passing a "vulnerable user" — a bicyclist, motorcyclist, pedestrian or runner. On four-lane roads, motorists are supposed to yield the lane entirely.
Austin police have issued just eight citations — four per year — under that law.
At a recent meeting of the Austin Bicycling Coalition, Acevedo urged bikers to write down license plates of offending vehicles and file complaints at municipal court. "We are responsive," he said. "We're going to continue to hammer at it."
Transportation for America, which advocates for "transformational change" in the nation's highway-oriented transportation system, ranks the Austin-Round Rock area the 18th most dangerous in the country for pedestrians — safer than Dallas-Fort Worth and Houston but more dangerous than San Antonio. The organization's rating system generally gives better marks to cities, like San Antonio, with higher percentages of residents who walk to work.
By contrast, the Alliance for Biking and Walking ranks Austin the 15th best city in the country for biking to work — Houston, the next closest Texas city, is ranked 38th. Auto-bike fatalities have averaged one per year over the past seven years.
In 2010, the city set aside 15 percent of its $90 million transportation bond issue for projects to enhance mobility and safety for pedestrians, bikers and disabled people — including safer ways to traverse some of its most dangerous highways, such as I-35.
To increase pedestrian safety, said Gary Schatz, assistant director of transportation, enforcement of traffic laws goes hand in hand with heightened public awareness — and better hardware. An example is the new pedestrian-activated devices that activate red lights when someone is trying to cross the street, audibly instruct when it's safe to walk and count the seconds until the light changes.
"We're actually shifting our focus to look at the opportunity to use these instead of regular traffic signals," Schatz said. The city has put 21 of the devices at key intersections and plans to install 10 more, including one near Bedicheck Middle School, where two teenagers were killed last year crossing South First Street.
Said Beaudet, the project manager for the city's pedestrian and bike programs: "It is going to be a slow process, but I have to believe all the infrastructure we're putting in leads to more walking and biking. The more people we have doing it, the safer it is."A 61-year-old father visiting his grown children in Austin, run over on the sidewalk outside a grocery store on Guadalupe Street. Killed instantly.
A kindergartner struck down before his mother's eyes when an SUV swerved in the parking lot of a Northeast Austin apartment complex. Dead at the scene.
A 53-year-old administrator at a patent law firm, dragged by a city bus after she was hit while crossing the street with the light. Died a week later.
A 22-year-old University of Texas soccer player, nearly killed by a hit-and-run driver in a crosswalk downtown. Now in rehab for brain injuries.
Three dead, one severely injured: a snapshot of the deadly encounters between cars and people on Austin streets in just the first 10 weeks of 2012.
"I'm horrified," said Annick Beaudet, project manager for the city's bicycle and pedestrian program.
Last year marked an 83 percent increase in auto-pedestrian deaths in Austin: There were 21, plus a single auto-bike fatality, compared with a dozen in 2010.
This year, eight people, including one walking his bike, have already died in collisions with motor vehicles. All but one happened after dark or at dusk. One-third were hit-and-runs.
The rash of deaths, in a city that sees itself as friendly to alternative transportation modes and at a time when overall traffic fatalities are falling, has aroused concern.
"My own personal feeling is it seems like it's going up," said Austin Police Department Detective Michael McCarter, one of the vehicular homicide officers who shut down Guadalupe Street for six hours Feb. 19 to investigate the hit-and-run that killed Dik Van Meerten, 61, and seriously injured Sarah Lee Parker, 21. The driver of the SUV that jumped the curb, 59-year-old Linda Woodman, was charged with intoxication manslaughter and intoxication assault.
"People don't get that too many people are getting killed in auto-pedestrian crashes, and almost every one can be prevented," said Austin Police Chief Art Acevedo.
None of the pedestrian deaths in 2011 occurred in downtown Austin, where the city wants to encourage a vibrant walking and biking scene. But statistics show that the likelihood of being hit by a car is higher there than in any other neighborhood, and "the potential for life-threatening injuries is always there," said Lt. Ely Reyes with the Police Department's traffic enforcement division.
Once the South by Southwest crowds are gone, Reyes said, residents can expect renewed enforcement of auto-pedestrian laws — including sting operations using plainclothes police downtown and at other high-risk intersections in the city.
Like the unpopular two-week crackdown by police last fall, the initiative is pegged to a list of more than 100 locations that have had at least three collisions between vehicles and pedestrians or bicyclists in the past three years — all told, 480 crashes. The street that appears most frequently on the list, with 19 crash-prone locations along its eight-mile length, is also the city's most prominent: Congress Avenue. But Congress is not the most deadly thoroughfare.
That distinction, according to an American-Statesman analysis of Police Department and Federal Highway Administration statistics, belongs to Interstate 35. More than one-third of auto-pedestrian fatalities in 2011 took place along I-35 and its frontage roads.
Meanwhile, fatalities from other motor vehicle collisions keep falling — from 43 in 2005 to 32 in 2011, a 25 percent reduction. That mirrors a national trend that has been under way for more than a decade.
In Austin, the statistical result is that pedestrians now account for an increasingly larger proportion of all traffic deaths. According to police records, about 25 percent of total traffic fatalities in 2009 and 2010 were pedestrians. In 2011, 40 percent were. During the first 10 weeks of 2012, 50 percent were.
Why are pedestrian fatalities resisting the downward trend?
For starters, Acevedo cites Austin's reputation "as one of the heaviest drinking cities in the country. You throw alcohol into the mix, whether it's drivers or pedestrians, and you have a problem."
But the police chief also blames local attitudes.
"Drivers think (pedestrians) don't have the right to cross the street, and pedestrians think they can jump out at the last second," he said. "It used to be ... that when a pedestrian set foot in an intersection, that people stopped. I think it's a commentary on society that we've lost that respect."
A related issue, said Acevedo, is "the huge number of hit-and-runs," which he calls both a local and statewide problem. The rate of hit-and-runs in Austin — accounting for more than one-third of auto-pedestrian deaths this year — is about 50 percent above the national rate.
In Texas, the criminal charge is "failure to stop and render aid," a third-degree felony with a maximum penalty of five years in prison. Sentences are often probated, and drivers typically keep their licenses. Acevedo said the Legislature needs to take "a really hard look" at stiffer punishment.
"We have to have penalties, whether it's revoking your license or jail time, that would encourage people to stay" at the scene instead of fleeing, Acevedo said.
Who's at fault?
Ask a cop why people get hit by cars, and the answer is quick: Almost always because they messed up.
"In most of these cases it's the pedestrian that's running across the highway, crossing against the light," Reyes said. "About 90 percent of these collisions are caused by them."
Except when they're not. None of the collisions cited at the beginning of this story was the fault of the pedestrian who was killed or injured. In one instance, the victims weren't even in the street, but standing on the sidewalk.
Those cases represent "an anomaly you can't plan for," Reyes said. "No amount of enforcement effort would have prevented that."
But police say it does make sense to map where collisions between vehicles and pedestrians or bicyclists tend to occur, and focus their resources there.
The first such enforcement initiative took place from Oct. 24 to Nov. 8, "utilized a lot of resources, a lot of motorcycle officers (who) spent their entire shift" writing tickets, Reyes said. Pedestrians got 1,336 citations and warnings, for offenses such as failure to observe traffic signals, panhandling or stepping into roadways midblock. Drivers got 174.
That lopsided scorecard is par for the course. Between 2008 and 2010, Austin police issued nearly 11,000 citations for violations of auto-pedestrian laws; only 7 percent went to drivers.
Acevedo promises that the second phase of the initiative, using police officers as decoys, will target motorists who enter crosswalks illegally — which often occurs when turning right or left without checking for pedestrian traffic. In the Los Angeles area, where Acevedo once worked in law enforcement, similar stings "had tremendous results — auto-pedestrian collisions went way down," the chief said.
That hasn't happened in Austin, where the more immediate effect of last year's crackdown was outrage.
Elana James, whose Hot Club of Cowtown band often plays the Continental Club, was stopped by an officer at 2:30 a.m. for jaywalking across South Congress Avenue after a gig.
"I didn't even know there was an ordinance against it," she said. "It's absolutely preposterous. I'm not drunk — why should I be penalized?" James said the court reduced her $210 fine to $50, and she "ran out of time" to keep fighting it.
Dale Boudreaux, owner of an energy company in Lafayette, La., was turning left onto Sixth Street from Congress when he was ticketed for failure to yield right of way to pedestrians — a group of Occupy Austin protesters.
"I didn't see anyone in the crosswalk — they were on the sidewalk," said Boudreaux. He said he paid a $167 fine and took an online defensive driving course to keep the offense off his driving record.
"It was a lot of hassle for me," Boudreaux said. "Did I ever get a ticket before? Yes. Did I ever get a ticket for a pedestrian thing? Never."
Brian Davies was working as a bike messenger downtown when he was cited for riding the wrong way on West Sixth Street. "A warning is one thing, but to instantly give a $250 ticket, no," Davies said.
"Why not crack down on people on their cellphones? How about the 3-foot rule? How many tickets have they given for that?"
A city ordinance passed in 2009 requires vehicles to keep at least 3 feet away when passing a "vulnerable user" — a bicyclist, motorcyclist, pedestrian or runner. On four-lane roads, motorists are supposed to yield the lane entirely.
Austin police have issued just eight citations — four per year — under that law.
At a recent meeting of the Austin Bicycling Coalition, Acevedo urged bikers to write down license plates of offending vehicles and file complaints at municipal court. "We are responsive," he said. "We're going to continue to hammer at it."
Transportation for America, which advocates for "transformational change" in the nation's highway-oriented transportation system, ranks the Austin-Round Rock area the 18th most dangerous in the country for pedestrians — safer than Dallas-Fort Worth and Houston but more dangerous than San Antonio. The organization's rating system generally gives better marks to cities, like San Antonio, with higher percentages of residents who walk to work.
By contrast, the Alliance for Biking and Walking ranks Austin the 15th best city in the country for biking to work — Houston, the next closest Texas city, is ranked 38th. Auto-bike fatalities have averaged one per year over the past seven years.
In 2010, the city set aside 15 percent of its $90 million transportation bond issue for projects to enhance mobility and safety for pedestrians, bikers and disabled people — including safer ways to traverse some of its most dangerous highways, such as I-35.
To increase pedestrian safety, said Gary Schatz, assistant director of transportation, enforcement of traffic laws goes hand in hand with heightened public awareness — and better hardware. An example is the new pedestrian-activated devices that activate red lights when someone is trying to cross the street, audibly instruct when it's safe to walk and count the seconds until the light changes.
"We're actually shifting our focus to look at the opportunity to use these instead of regular traffic signals," Schatz said. The city has put 21 of the devices at key intersections and plans to install 10 more, including one near Bedicheck Middle School, where two teenagers were killed last year crossing South First Street.
Said Beaudet, the project manager for the city's pedestrian and bike programs: "It is going to be a slow process, but I have to believe all the infrastructure we're putting in leads to more walking and biking. The more people we have doing it, the safer it is."A 61-year-old father visiting his grown children in Austin, run over on the sidewalk outside a grocery store on Guadalupe Street. Killed instantly.
A kindergartner struck down before his mother's eyes when an SUV swerved in the parking lot of a Northeast Austin apartment complex. Dead at the scene.
A 53-year-old administrator at a patent law firm, dragged by a city bus after she was hit while crossing the street with the light. Died a week later.
A 22-year-old University of Texas soccer player, nearly killed by a hit-and-run driver in a crosswalk downtown. Now in rehab for brain injuries.
Three dead, one severely injured: a snapshot of the deadly encounters between cars and people on Austin streets in just the first 10 weeks of 2012.
"I'm horrified," said Annick Beaudet, project manager for the city's bicycle and pedestrian program.
Last year marked an 83 percent increase in auto-pedestrian deaths in Austin: There were 21, plus a single auto-bike fatality, compared with a dozen in 2010.
This year, eight people, including one walking his bike, have already died in collisions with motor vehicles. All but one happened after dark or at dusk. One-third were hit-and-runs.
The rash of deaths, in a city that sees itself as friendly to alternative transportation modes and at a time when overall traffic fatalities are falling, has aroused concern.
"My own personal feeling is it seems like it's going up," said Austin Police Department Detective Michael McCarter, one of the vehicular homicide officers who shut down Guadalupe Street for six hours Feb. 19 to investigate the hit-and-run that killed Dik Van Meerten, 61, and seriously injured Sarah Lee Parker, 21. The driver of the SUV that jumped the curb, 59-year-old Linda Woodman, was charged with intoxication manslaughter and intoxication assault.
"People don't get that too many people are getting killed in auto-pedestrian crashes, and almost every one can be prevented," said Austin Police Chief Art Acevedo.
None of the pedestrian deaths in 2011 occurred in downtown Austin, where the city wants to encourage a vibrant walking and biking scene. But statistics show that the likelihood of being hit by a car is higher there than in any other neighborhood, and "the potential for life-threatening injuries is always there," said Lt. Ely Reyes with the Police Department's traffic enforcement division.
Once the South by Southwest crowds are gone, Reyes said, residents can expect renewed enforcement of auto-pedestrian laws — including sting operations using plainclothes police downtown and at other high-risk intersections in the city.
Like the unpopular two-week crackdown by police last fall, the initiative is pegged to a list of more than 100 locations that have had at least three collisions between vehicles and pedestrians or bicyclists in the past three years — all told, 480 crashes. The street that appears most frequently on the list, with 19 crash-prone locations along its eight-mile length, is also the city's most prominent: Congress Avenue. But Congress is not the most deadly thoroughfare.
That distinction, according to an American-Statesman analysis of Police Department and Federal Highway Administration statistics, belongs to Interstate 35. More than one-third of auto-pedestrian fatalities in 2011 took place along I-35 and its frontage roads.
Meanwhile, fatalities from other motor vehicle collisions keep falling — from 43 in 2005 to 32 in 2011, a 25 percent reduction. That mirrors a national trend that has been under way for more than a decade.
In Austin, the statistical result is that pedestrians now account for an increasingly larger proportion of all traffic deaths. According to police records, about 25 percent of total traffic fatalities in 2009 and 2010 were pedestrians. In 2011, 40 percent were. During the first 10 weeks of 2012, 50 percent were.
Why are pedestrian fatalities resisting the downward trend?
For starters, Acevedo cites Austin's reputation "as one of the heaviest drinking cities in the country. You throw alcohol into the mix, whether it's drivers or pedestrians, and you have a problem."
But the police chief also blames local attitudes.
"Drivers think (pedestrians) don't have the right to cross the street, and pedestrians think they can jump out at the last second," he said. "It used to be ... that when a pedestrian set foot in an intersection, that people stopped. I think it's a commentary on society that we've lost that respect."
A related issue, said Acevedo, is "the huge number of hit-and-runs," which he calls both a local and statewide problem. The rate of hit-and-runs in Austin — accounting for more than one-third of auto-pedestrian deaths this year — is about 50 percent above the national rate.
In Texas, the criminal charge is "failure to stop and render aid," a third-degree felony with a maximum penalty of five years in prison. Sentences are often probated, and drivers typically keep their licenses. Acevedo said the Legislature needs to take "a really hard look" at stiffer punishment.
"We have to have penalties, whether it's revoking your license or jail time, that would encourage people to stay" at the scene instead of fleeing, Acevedo said.
Who's at fault?
Ask a cop why people get hit by cars, and the answer is quick: Almost always because they messed up.
"In most of these cases it's the pedestrian that's running across the highway, crossing against the light," Reyes said. "About 90 percent of these collisions are caused by them."
Except when they're not. None of the collisions cited at the beginning of this story was the fault of the pedestrian who was killed or injured. In one instance, the victims weren't even in the street, but standing on the sidewalk.
Those cases represent "an anomaly you can't plan for," Reyes said. "No amount of enforcement effort would have prevented that."
But police say it does make sense to map where collisions between vehicles and pedestrians or bicyclists tend to occur, and focus their resources there.
The first such enforcement initiative took place from Oct. 24 to Nov. 8, "utilized a lot of resources, a lot of motorcycle officers (who) spent their entire shift" writing tickets, Reyes said. Pedestrians got 1,336 citations and warnings, for offenses such as failure to observe traffic signals, panhandling or stepping into roadways midblock. Drivers got 174.
That lopsided scorecard is par for the course. Between 2008 and 2010, Austin police issued nearly 11,000 citations for violations of auto-pedestrian laws; only 7 percent went to drivers.
Acevedo promises that the second phase of the initiative, using police officers as decoys, will target motorists who enter crosswalks illegally — which often occurs when turning right or left without checking for pedestrian traffic. In the Los Angeles area, where Acevedo once worked in law enforcement, similar stings "had tremendous results — auto-pedestrian collisions went way down," the chief said.
That hasn't happened in Austin, where the more immediate effect of last year's crackdown was outrage.
Elana James, whose Hot Club of Cowtown band often plays the Continental Club, was stopped by an officer at 2:30 a.m. for jaywalking across South Congress Avenue after a gig.
"I didn't even know there was an ordinance against it," she said. "It's absolutely preposterous. I'm not drunk — why should I be penalized?" James said the court reduced her $210 fine to $50, and she "ran out of time" to keep fighting it.
Dale Boudreaux, owner of an energy company in Lafayette, La., was turning left onto Sixth Street from Congress when he was ticketed for failure to yield right of way to pedestrians — a group of Occupy Austin protesters.
"I didn't see anyone in the crosswalk — they were on the sidewalk," said Boudreaux. He said he paid a $167 fine and took an online defensive driving course to keep the offense off his driving record.
"It was a lot of hassle for me," Boudreaux said. "Did I ever get a ticket before? Yes. Did I ever get a ticket for a pedestrian thing? Never."
Brian Davies was working as a bike messenger downtown when he was cited for riding the wrong way on West Sixth Street. "A warning is one thing, but to instantly give a $250 ticket, no," Davies said.
"Why not crack down on people on their cellphones? How about the 3-foot rule? How many tickets have they given for that?"
A city ordinance passed in 2009 requires vehicles to keep at least 3 feet away when passing a "vulnerable user" — a bicyclist, motorcyclist, pedestrian or runner. On four-lane roads, motorists are supposed to yield the lane entirely.
Austin police have issued just eight citations — four per year — under that law.
At a recent meeting of the Austin Bicycling Coalition, Acevedo urged bikers to write down license plates of offending vehicles and file complaints at municipal court. "We are responsive," he said. "We're going to continue to hammer at it."
Transportation for America, which advocates for "transformational change" in the nation's highway-oriented transportation system, ranks the Austin-Round Rock area the 18th most dangerous in the country for pedestrians — safer than Dallas-Fort Worth and Houston but more dangerous than San Antonio. The organization's rating system generally gives better marks to cities, like San Antonio, with higher percentages of residents who walk to work.
By contrast, the Alliance for Biking and Walking ranks Austin the 15th best city in the country for biking to work — Houston, the next closest Texas city, is ranked 38th. Auto-bike fatalities have averaged one per year over the past seven years.
In 2010, the city set aside 15 percent of its $90 million transportation bond issue for projects to enhance mobility and safety for pedestrians, bikers and disabled people — including safer ways to traverse some of its most dangerous highways, such as I-35.
To increase pedestrian safety, said Gary Schatz, assistant director of transportation, enforcement of traffic laws goes hand in hand with heightened public awareness — and better hardware. An example is the new pedestrian-activated devices that activate red lights when someone is trying to cross the street, audibly instruct when it's safe to walk and count the seconds until the light changes.
"We're actually shifting our focus to look at the opportunity to use these instead of regular traffic signals," Schatz said. The city has put 21 of the devices at key intersections and plans to install 10 more, including one near Bedicheck Middle School, where two teenagers were killed last year crossing South First Street.
Said Beaudet, the project manager for the city's pedestrian and bike programs: "It is going to be a slow process, but I have to believe all the infrastructure we're putting in leads to more walking and biking. The more people we have doing it, the safer it is."
by Rhett Hoestenbach P.C. on March 30th, 2011
By Mary Ann Roser
AMERICAN-STATESMAN STAFF
To this day, Jean Bogardus of Austin doesn't know what hit her.
She was walking in the parking lot of the Onion Creek Country Club on Feb. 7, 2007, when she was run over by a vehicle, leaving her right leg broken in three places.
"I think it was an SUV," Bogardus, 77, said recently, "but it all happened so fast."
At University Medical Center Brackenridge, she had surgery and went home two days later in a wheelchair with rods and pins in her leg. The hospital said her care cost $31,115. Bogardus figured Medicare, her health insurer, would pay.
But instead of billing Medicare, the hospital filed a lien against Bogardus, staking a claim to part of any settlement she might seek from the driver's insurance company. That meant, if Bogardus was awarded a settlement, the hospital would get paid first.
Personal injury lawyers and some patient advocates say hospital liens — which have been permitted by Texas law since the 1930s — by themselves are not bad. It makes sense for hospitals to try to get paid, they said. But they see hospitals abusing liens by seeking drastically higher payments from accident victims than they would otherwise get.
The lien put Bogardus in the company of thousands of other accident victims in Central Texas who become embroiled in a tug-of-war over their settlements. UMC Brackenridge, Austin's only Level I trauma center, has filed more liens than any other hospital in Central Texas: 18,300 since 1999, according to Travis County property records. Four other hospitals, also operated by the Seton Family of Hospitals, have filed hundreds of liens each.
Many states have hospital lien laws to ensure payment of bills, especially when patients have no health coverage.
But Seton officials said they routinely file liens in cases where they anticipate an insurance settlement, regardless of the person's health coverage status. Spokeswoman Adrienne Lallo said the only time they don't automatically file liens is when the hospital bill is less than $5,000.
Seton officials say they are only trying to recoup the cost of caring for the injured person. A hospital risks getting nothing, in some cases, if it doesn't file a lien, said Greg Hartman, president and CEO of UMC Brackenridge. It's especially important for a safety net hospital like UMC Brackenridge, which because of its Level I trauma center sees a large number of accident victims — many of them uninsured. That's a worsening problem, Hartman said, in a state in which 25 percent of the population lacks health insurance.
Seton officials said they were unable to calculate how much they have collected from liens in the past two years. St. David's HealthCare stopped filing liens in early 2009, except in extraordinary circumstances, Chief Financial Officer David Wilson said. The liens "often created misunderstanding, and in some cases ill will with our patients" without bringing substantial financial benefit, he said.
When a patient like Bogardus has Medicare or Medicaid, the hospital is required to first seek payment from the person or party responsible for the accident, Seton officials said. Filing a lien is the most practical way to collect, Lallo said.
"If we fail to file a lien on, say, a motor vehicle accident settlement, we would preclude our ability to file for Medicare and Medicaid," Lallo wrote in an email.
Not so, federal officials said.
"In a liability situation where the liability insurance is in dispute, a hospital may bill Medicare conditionally," said Ellen Griffith, a spokeswoman for the Centers for Medicare & Medicaid Services. "Medicare will recover its conditional payments from the ultimate settlement, if any. This enables the hospital to be paid more promptly than if it had to wait until the liability dispute is resolved."
Hartman said that because the law requires hospitals to "do whatever you can to see if there's another payer" besides Medicare or Medicaid, "we feel it's our responsibility to get dollars that are awarded by the court to pay for medical care before we spend government tax dollars on care."
But a lien can bring the hospital more money.
Hospitals generally seek the full charges, or "list price," from accident victims, rather than the discounted rates that the government and other insurers negotiate for patients with Medicare, Medicaid and private insurance. For example, Seton gives managed care companies such as HMOs discounts from 10 to 55 percent, Lallo said, and uninsured patients get discounts ranging from 21 to 35 percent, depending on whether the person pays upfront for care.
Virtually no one pays the list price, hospital officials and lawyers agreed.
In Bogardus' case, Medicare would have paid $10,866 — about 65 percent less than what the hospital actually charged her.
Under the state's lien law, hospitals may collect their "reasonable and regular rate," which personal injury lawyers say is often 60 percent less than the list price. That is why they object so strenuously when clients receive bills for the full charges, they said.
Glenda Owen, Seton's vice president of finance, said the list price is a starting point. "When we send that (bill) out the door, we're expecting to negotiate."
That's a smokescreen, said Mark Rukavina, executive director of the Access Project in Boston, a nonprofit interested in improving health and health care access.
"In a way the hospitals are shopping for the highest payer," Rukavina said. "It's excessive and unfair for them to be paid (full) charges."
Hal Bogardus, 80, Jean's husband and a retired semiconductor manager, scientist and engineer, said he had a word for it: "Egregious."
Resolution can take years
Hospitals often aren't the only lien filers after an accident. In settlement cases, it is common for the injured person's health and auto insurance carriers to file liens seeking repayment from the other party's insurance. Bogardus faced three other liens on the settlement, including one from her own auto insurance company, which was later waived, said her lawyer, Mike Davis.
Cases can take several years to resolve.
In February 2009, two years after the accident, Bogardus — whose right leg was ¾ of an inch shorter than her left after the accident, causing her to limp — sued the driver's insurance company for the maximum amount of his policy, $250,000.
Later that year, Davis also sued Seton and the company it uses to pursue its liens, Cardon Healthcare Network of The Woodlands, because the hospital "charges exceed the reasonable and regular rate for such services," the suit says.
Cardon offered to discount Bogardus' bill 15 percent, but Davis countered that the standard discount for her case at UMC Brackenridge would have been 60 percent off the list price.
Seton doesn't have a standard discount for Medicare and Medicaid but takes whatever those insurers pay, amounts that vary by diagnosis, Lallo said.
In the end, Bogardus paid Seton $21,255, including $14,255 from a medical plan that she had with Allstate, to settle the lien, about double what Seton would have gotten from Medicare. After paying her other expenses — including the other liens, medical expenses she incurred after her initial hospital stay and more than $87,000 in attorneys fees and expenses — Seton estimated she was left with about $60,000, an amount Davis would not confirm.
Bill would require notification
Often the injured person has no idea until months after their accident that a hospital has filed a lien against them. That's because Texas law doesn't require hospitals to tell them.
Because she had a lawyer, Bogardus found out about the hospital lien from him.
But Dianne Miller of Richardson said she didn't know for seven weeks that a lien had been filed after her accident. The car in which she was riding was struck head-on on her way to a Richardson City Council meeting on Nov. 19, 2007. Her leg was badly damaged in the accident, and the avid hiker, then 63, was told later she might be permanently disabled.
A few days after receiving that news, she received a letter from the hospital's lawyer informing her of the $556 lien. Miller, who was covered by Blue Cross Blue Shield, thought the lien meant the hospital was trying to take her house.
"I was already in shock," said Miller. "It was not clear a hospital lien was a non-property lien."
She was furious, but because it was a relatively small amount, she decided to pay the lien, she said.
She testified this month in favor of Senate Bill 328, filed by Sen. John Carona, R-Dallas, which would require hospitals to send a notice to the injured person within five business days and explain the lien does not involve the person's house.
There is no penalty if a hospital fails to notify, Carona said, but he believes that "could place in question the collection" of the lien.
Lawyers object to liens' size
Judy Kostura, an Austin lawyer who is an expert on hospital liens, said, "It makes perfect sense to me that rather than write it off for charity, they (hospitals) might seek to recover some costs." But she objects to the size of the liens.
Lawyers don't like liens because they cut into what the lawyers get from a settlement, Hartman said. Lawyers dispute that claim, saying they typically get a third of the settlement and what is left is between the client and the hospital.
Austin lawyer Robert W. Lee said if he had not sued Seton and Cardon on behalf of Rosa Meza Aguirre, she would have been left with nothing.
Aguirre, who has six children and cleans houses for a living, was a passenger in her purple Neon on July 21, 2009, when it was struck by a tractor trailer changing lanes. The car spun out, crossing three lanes of traffic on southbound Interstate 35 and landing in the median near Wells Branch Parkway.
The impact forced her chest down onto the dashboard. Aguirre, 38, who did not have health insurance, underwent five CT scans at UMC Brackenridge, for which she was charged between $3,097 and $5,478 each. Her bill totaled $31,368.
She had no broken bones, but two years later, her chest still hurts, and she also has pain radiating from her neck, Aguirre said.
"I don't have a quarrel with the diagnostic treatment," Lee said. "I think the real problem is when they charge a ridiculous amount \u2026 for three hours in the ER."
Doctors will reduce their fees for uninsured patients, Lee added, "but the hospital has this lien statute, and they've got all the power. You have no ability to negotiate until you file suit and go to court."
The hospital filed a lien for the full bill on Aguirre's settlement of $57,500 from the trucking company. Lee had the charges analyzed by a California company that reviews medical bills; the company concluded that his client was overcharged $22,915. Lee claimed her bill should have been $8,453 and sued Seton, UMC Brackenridge and Cardon in May 2010.
Hartman said CT scans cost more at trauma centers because the centers are costly to operate, with specialists and sophisticated equipment. "It includes all of those overhead costs," he said.
The judge in the lawsuit said the hospital filed the lien too late, which gave Lee an advantage in negotiations. In the end, Aguirre paid $10,000 to satisfy Seton's lien. After paying other bills and attorney's fees and expenses of $19,166, her share was $21,880.
"In the end, my goal is not to screw the hospital out of getting paid for their service, it's paying them what's reasonable," Lee said. "It seems like their goal is to make as much money as they can."
AMERICAN-STATESMAN STAFF
To this day, Jean Bogardus of Austin doesn't know what hit her.
She was walking in the parking lot of the Onion Creek Country Club on Feb. 7, 2007, when she was run over by a vehicle, leaving her right leg broken in three places.
"I think it was an SUV," Bogardus, 77, said recently, "but it all happened so fast."
At University Medical Center Brackenridge, she had surgery and went home two days later in a wheelchair with rods and pins in her leg. The hospital said her care cost $31,115. Bogardus figured Medicare, her health insurer, would pay.
But instead of billing Medicare, the hospital filed a lien against Bogardus, staking a claim to part of any settlement she might seek from the driver's insurance company. That meant, if Bogardus was awarded a settlement, the hospital would get paid first.
Personal injury lawyers and some patient advocates say hospital liens — which have been permitted by Texas law since the 1930s — by themselves are not bad. It makes sense for hospitals to try to get paid, they said. But they see hospitals abusing liens by seeking drastically higher payments from accident victims than they would otherwise get.
The lien put Bogardus in the company of thousands of other accident victims in Central Texas who become embroiled in a tug-of-war over their settlements. UMC Brackenridge, Austin's only Level I trauma center, has filed more liens than any other hospital in Central Texas: 18,300 since 1999, according to Travis County property records. Four other hospitals, also operated by the Seton Family of Hospitals, have filed hundreds of liens each.
Many states have hospital lien laws to ensure payment of bills, especially when patients have no health coverage.
But Seton officials said they routinely file liens in cases where they anticipate an insurance settlement, regardless of the person's health coverage status. Spokeswoman Adrienne Lallo said the only time they don't automatically file liens is when the hospital bill is less than $5,000.
Seton officials say they are only trying to recoup the cost of caring for the injured person. A hospital risks getting nothing, in some cases, if it doesn't file a lien, said Greg Hartman, president and CEO of UMC Brackenridge. It's especially important for a safety net hospital like UMC Brackenridge, which because of its Level I trauma center sees a large number of accident victims — many of them uninsured. That's a worsening problem, Hartman said, in a state in which 25 percent of the population lacks health insurance.
Seton officials said they were unable to calculate how much they have collected from liens in the past two years. St. David's HealthCare stopped filing liens in early 2009, except in extraordinary circumstances, Chief Financial Officer David Wilson said. The liens "often created misunderstanding, and in some cases ill will with our patients" without bringing substantial financial benefit, he said.
When a patient like Bogardus has Medicare or Medicaid, the hospital is required to first seek payment from the person or party responsible for the accident, Seton officials said. Filing a lien is the most practical way to collect, Lallo said.
"If we fail to file a lien on, say, a motor vehicle accident settlement, we would preclude our ability to file for Medicare and Medicaid," Lallo wrote in an email.
Not so, federal officials said.
"In a liability situation where the liability insurance is in dispute, a hospital may bill Medicare conditionally," said Ellen Griffith, a spokeswoman for the Centers for Medicare & Medicaid Services. "Medicare will recover its conditional payments from the ultimate settlement, if any. This enables the hospital to be paid more promptly than if it had to wait until the liability dispute is resolved."
Hartman said that because the law requires hospitals to "do whatever you can to see if there's another payer" besides Medicare or Medicaid, "we feel it's our responsibility to get dollars that are awarded by the court to pay for medical care before we spend government tax dollars on care."
But a lien can bring the hospital more money.
Hospitals generally seek the full charges, or "list price," from accident victims, rather than the discounted rates that the government and other insurers negotiate for patients with Medicare, Medicaid and private insurance. For example, Seton gives managed care companies such as HMOs discounts from 10 to 55 percent, Lallo said, and uninsured patients get discounts ranging from 21 to 35 percent, depending on whether the person pays upfront for care.
Virtually no one pays the list price, hospital officials and lawyers agreed.
In Bogardus' case, Medicare would have paid $10,866 — about 65 percent less than what the hospital actually charged her.
Under the state's lien law, hospitals may collect their "reasonable and regular rate," which personal injury lawyers say is often 60 percent less than the list price. That is why they object so strenuously when clients receive bills for the full charges, they said.
Glenda Owen, Seton's vice president of finance, said the list price is a starting point. "When we send that (bill) out the door, we're expecting to negotiate."
That's a smokescreen, said Mark Rukavina, executive director of the Access Project in Boston, a nonprofit interested in improving health and health care access.
"In a way the hospitals are shopping for the highest payer," Rukavina said. "It's excessive and unfair for them to be paid (full) charges."
Hal Bogardus, 80, Jean's husband and a retired semiconductor manager, scientist and engineer, said he had a word for it: "Egregious."
Resolution can take years
Hospitals often aren't the only lien filers after an accident. In settlement cases, it is common for the injured person's health and auto insurance carriers to file liens seeking repayment from the other party's insurance. Bogardus faced three other liens on the settlement, including one from her own auto insurance company, which was later waived, said her lawyer, Mike Davis.
Cases can take several years to resolve.
In February 2009, two years after the accident, Bogardus — whose right leg was ¾ of an inch shorter than her left after the accident, causing her to limp — sued the driver's insurance company for the maximum amount of his policy, $250,000.
Later that year, Davis also sued Seton and the company it uses to pursue its liens, Cardon Healthcare Network of The Woodlands, because the hospital "charges exceed the reasonable and regular rate for such services," the suit says.
Cardon offered to discount Bogardus' bill 15 percent, but Davis countered that the standard discount for her case at UMC Brackenridge would have been 60 percent off the list price.
Seton doesn't have a standard discount for Medicare and Medicaid but takes whatever those insurers pay, amounts that vary by diagnosis, Lallo said.
In the end, Bogardus paid Seton $21,255, including $14,255 from a medical plan that she had with Allstate, to settle the lien, about double what Seton would have gotten from Medicare. After paying her other expenses — including the other liens, medical expenses she incurred after her initial hospital stay and more than $87,000 in attorneys fees and expenses — Seton estimated she was left with about $60,000, an amount Davis would not confirm.
Bill would require notification
Often the injured person has no idea until months after their accident that a hospital has filed a lien against them. That's because Texas law doesn't require hospitals to tell them.
Because she had a lawyer, Bogardus found out about the hospital lien from him.
But Dianne Miller of Richardson said she didn't know for seven weeks that a lien had been filed after her accident. The car in which she was riding was struck head-on on her way to a Richardson City Council meeting on Nov. 19, 2007. Her leg was badly damaged in the accident, and the avid hiker, then 63, was told later she might be permanently disabled.
A few days after receiving that news, she received a letter from the hospital's lawyer informing her of the $556 lien. Miller, who was covered by Blue Cross Blue Shield, thought the lien meant the hospital was trying to take her house.
"I was already in shock," said Miller. "It was not clear a hospital lien was a non-property lien."
She was furious, but because it was a relatively small amount, she decided to pay the lien, she said.
She testified this month in favor of Senate Bill 328, filed by Sen. John Carona, R-Dallas, which would require hospitals to send a notice to the injured person within five business days and explain the lien does not involve the person's house.
There is no penalty if a hospital fails to notify, Carona said, but he believes that "could place in question the collection" of the lien.
Lawyers object to liens' size
Judy Kostura, an Austin lawyer who is an expert on hospital liens, said, "It makes perfect sense to me that rather than write it off for charity, they (hospitals) might seek to recover some costs." But she objects to the size of the liens.
Lawyers don't like liens because they cut into what the lawyers get from a settlement, Hartman said. Lawyers dispute that claim, saying they typically get a third of the settlement and what is left is between the client and the hospital.
Austin lawyer Robert W. Lee said if he had not sued Seton and Cardon on behalf of Rosa Meza Aguirre, she would have been left with nothing.
Aguirre, who has six children and cleans houses for a living, was a passenger in her purple Neon on July 21, 2009, when it was struck by a tractor trailer changing lanes. The car spun out, crossing three lanes of traffic on southbound Interstate 35 and landing in the median near Wells Branch Parkway.
The impact forced her chest down onto the dashboard. Aguirre, 38, who did not have health insurance, underwent five CT scans at UMC Brackenridge, for which she was charged between $3,097 and $5,478 each. Her bill totaled $31,368.
She had no broken bones, but two years later, her chest still hurts, and she also has pain radiating from her neck, Aguirre said.
"I don't have a quarrel with the diagnostic treatment," Lee said. "I think the real problem is when they charge a ridiculous amount \u2026 for three hours in the ER."
Doctors will reduce their fees for uninsured patients, Lee added, "but the hospital has this lien statute, and they've got all the power. You have no ability to negotiate until you file suit and go to court."
The hospital filed a lien for the full bill on Aguirre's settlement of $57,500 from the trucking company. Lee had the charges analyzed by a California company that reviews medical bills; the company concluded that his client was overcharged $22,915. Lee claimed her bill should have been $8,453 and sued Seton, UMC Brackenridge and Cardon in May 2010.
Hartman said CT scans cost more at trauma centers because the centers are costly to operate, with specialists and sophisticated equipment. "It includes all of those overhead costs," he said.
The judge in the lawsuit said the hospital filed the lien too late, which gave Lee an advantage in negotiations. In the end, Aguirre paid $10,000 to satisfy Seton's lien. After paying other bills and attorney's fees and expenses of $19,166, her share was $21,880.
"In the end, my goal is not to screw the hospital out of getting paid for their service, it's paying them what's reasonable," Lee said. "It seems like their goal is to make as much money as they can."
by Rhett Hoestenbach P.C. on February 21st, 2011
Greg Land
Fulton County Daily Report
A Douglas County, Ga., judge ventured into new technological and legal territory during a recent criminal trial by allowing a witness to testify from Texas via Skype, the internet-based video-phone service, after the defense attorney said his client could not afford to bring the witness to Georgia.
Douglas County Assistant District Attorney Nedal S. Shawkat opposed the use of Skype, arguing among other things that the confrontation clauses of the U.S. and Georgia constitutions require in-person testimony at trial.
Shawkat said he did not expect the motion to be granted "simply because it is a new area of the law, and because we weren't able to find any cases where it was used."
But Douglas County Superior Court Chief Judge David T. Emerson said that with the exception of a minor glitch or two when the signal went offline, the system worked quite well.
Despite the testimony of the defense witness, Juan Salazar was convicted of cocaine trafficking. Emerson sentenced Salazar, 35, to serve 30 years of a 33-year sentence.
Salazar was behind the wheel of a tractor-trailer loaded with butternut squash and headed from Texas to Montezuma, Ga., when he was pulled over for at traffic violation in Douglasville on Jan. 28, 2010. A subsequent search of the truck turned up 95 kilos of cocaine found in secret compartment in the truck's cab.
Salazar's lawyer, Arturo Corso of Gainesville's Corso, Kennedy & Campbell, said that prior to trial, prosecutors had provided a lengthy list of possible witnesses the state might call to the stand. Among them was Richard Gutierrez, a broker from San Juan, Texas, whose business involves placing trucking companies with produce suppliers. Contacted by Corso, Gutierrez said he could testify that he had been in contact with the trucking company's owner and knew that the truck was supposed to be driven by another driver, and that Salazar had only been assigned the job at the last minute, when the other driver got sick.
Corso, who was privately retained, asked Emerson to issue a certificate of materiality to compel attendance for the man's testimony, which the judge declined.
On Jan. 28, Corso filed a "Motion for Leave to Present Live Testimony via Internet Video Phone (Skype)." It noted that, under ordinary circumstances, an out-of-state witness is paid 12 cents a mile each way and $25 a day to appear in court.
"Defendant Salazar, having been imprisoned prior to trial on these charges for one year is indigent and has no money to pay for said travel costs," he wrote.
While disappointed in the verdict -- which he plans to appeal -- Corso applauded Emerson's openness to the long-distance testimony.
"Judge Emerson didn't make a snap decision," he said. "He did his own research, and as near as we can tell there is no precedent, under state or federal rules of evidence, for using this in a criminal trial. The reason I think it was proper in this case is because the state was in possession of evidence outside of the state and beyond the court's reach."
Challenges in those types of cases "always [come] back to the confrontation clause," said Shawkat. "There's a lot of dicta as to why we have that clause. ... There have been a lot [of] cases where the argument has been that the state has the right to confrontation. If the defendant has the right to confront his accuser in person, then the state should have the same right to confront that witness, too."
The jury is also not privy to witness' body language and demeanor via monitor, he added.
Corso argued that the confrontation clauses are to protect the defendant, so there was no reason to deny the motion because "we were the ones asking for it."
The defense lawyer provided Gutierrez with a Skype camera, which the witness hooked up to his own computer in Texas, and the internet-based testimony lasted about an hour.
"We had a big, flat-screen TV, and the witness was almost life-size," Corso said.
"I think this story of justice-meets-technology is important," he said, "because otherwise Mr. Salazar would have been denied his due-process right to provide testimony in his defense."
Fulton County Daily Report
A Douglas County, Ga., judge ventured into new technological and legal territory during a recent criminal trial by allowing a witness to testify from Texas via Skype, the internet-based video-phone service, after the defense attorney said his client could not afford to bring the witness to Georgia.
Douglas County Assistant District Attorney Nedal S. Shawkat opposed the use of Skype, arguing among other things that the confrontation clauses of the U.S. and Georgia constitutions require in-person testimony at trial.
Shawkat said he did not expect the motion to be granted "simply because it is a new area of the law, and because we weren't able to find any cases where it was used."
But Douglas County Superior Court Chief Judge David T. Emerson said that with the exception of a minor glitch or two when the signal went offline, the system worked quite well.
Despite the testimony of the defense witness, Juan Salazar was convicted of cocaine trafficking. Emerson sentenced Salazar, 35, to serve 30 years of a 33-year sentence.
Salazar was behind the wheel of a tractor-trailer loaded with butternut squash and headed from Texas to Montezuma, Ga., when he was pulled over for at traffic violation in Douglasville on Jan. 28, 2010. A subsequent search of the truck turned up 95 kilos of cocaine found in secret compartment in the truck's cab.
Salazar's lawyer, Arturo Corso of Gainesville's Corso, Kennedy & Campbell, said that prior to trial, prosecutors had provided a lengthy list of possible witnesses the state might call to the stand. Among them was Richard Gutierrez, a broker from San Juan, Texas, whose business involves placing trucking companies with produce suppliers. Contacted by Corso, Gutierrez said he could testify that he had been in contact with the trucking company's owner and knew that the truck was supposed to be driven by another driver, and that Salazar had only been assigned the job at the last minute, when the other driver got sick.
Corso, who was privately retained, asked Emerson to issue a certificate of materiality to compel attendance for the man's testimony, which the judge declined.
On Jan. 28, Corso filed a "Motion for Leave to Present Live Testimony via Internet Video Phone (Skype)." It noted that, under ordinary circumstances, an out-of-state witness is paid 12 cents a mile each way and $25 a day to appear in court.
"Defendant Salazar, having been imprisoned prior to trial on these charges for one year is indigent and has no money to pay for said travel costs," he wrote.
While disappointed in the verdict -- which he plans to appeal -- Corso applauded Emerson's openness to the long-distance testimony.
"Judge Emerson didn't make a snap decision," he said. "He did his own research, and as near as we can tell there is no precedent, under state or federal rules of evidence, for using this in a criminal trial. The reason I think it was proper in this case is because the state was in possession of evidence outside of the state and beyond the court's reach."
Challenges in those types of cases "always [come] back to the confrontation clause," said Shawkat. "There's a lot of dicta as to why we have that clause. ... There have been a lot [of] cases where the argument has been that the state has the right to confrontation. If the defendant has the right to confront his accuser in person, then the state should have the same right to confront that witness, too."
The jury is also not privy to witness' body language and demeanor via monitor, he added.
Corso argued that the confrontation clauses are to protect the defendant, so there was no reason to deny the motion because "we were the ones asking for it."
The defense lawyer provided Gutierrez with a Skype camera, which the witness hooked up to his own computer in Texas, and the internet-based testimony lasted about an hour.
"We had a big, flat-screen TV, and the witness was almost life-size," Corso said.
"I think this story of justice-meets-technology is important," he said, "because otherwise Mr. Salazar would have been denied his due-process right to provide testimony in his defense."
by Rhett Hoestenbach P.C. on February 15th, 2011
By Tony Plohetski
AMERICAN-STATESMAN STAFF
Marathon training partners Gerry Moreau and George Gibbons were on pace Sunday to finish their first big race together in 4 hours, 30 minutes , the goal they'd set after months of practice.
They lost 20 minutes working to save a man's life.
The two paramedics from Austin-Travis County Emergency Medical Services were nearing mile 15 of the 26.2-mile Rock 'n' Roll Mardi Gras Marathon in New Orleans when Gibbons saw that a small crowd had gathered around a collapsed runner.
Gibbons, 45, who has more than 15 years' experience as a medic, rushed over and dropped to his knees. He checked for a pulse. It was very faint.
He placed his hand on the runner's chest. He knew the man's heart was stopping.
"He was barely breathing, maybe two or three times a minute," Gibbons said.
By then, Moreau, 41, was kneeling beside him.
"What's happening?" he asked. The paramedics, who rarely team up in Austin, began working together to keep 54-year-old James McKinnon of Waterloo, Ind., alive.
For the next four minutes, the medics, tired from the race and with sweat dripping from their faces, took turns pumping McKinnon's chest. They learned his name and hometown from the bib runners are required to wear.
A nurse who was watching the race joined in, pressing a few breaths into the roadside patient.
Paramedics for New Orleans Emergency Medical Services and the agency's top doctor arrived a short time later and continued CPR. Gibbons and Moreau told them everything they'd done.
They watched as medics loaded McKinnon into the ambulance. Then they decided to resume running.
"There was nothing else we could do at that point," Gibbons said.
New Orleans EMS officials said by the time they got the man to the Interim Louisiana State University Public Hospital, he was breathing again.
"All the stars lined up for this guy," New Orleans EMS spokesman Jeb Tate said. "What happened was a passage right out of a textbook."
McKinnon remained in intensive care Monday. Family members could not be reached for comment.
Moreau and Gibbons spent the rest of the race ticking away the miles and wondering whether McKinnon had survived.
Moreau finished the marathon, his ninth, in 4 hours, 52 minutes — about 10 minutes ahead of Gibbons, who was running his first. When Moreau crossed the finish line, he got a medal draped around his neck with thousands of other runners. But he wanted to find out the fate of the man he and Gibbons had helped.
Then he saw some New Orleans paramedics a few feet away.
He told them that he was one of the runners who had tended to McKinnon.
"'We've been waiting for you guys this whole time,'" Moreau said one of them told him. "'He made it.'"
Moreau said he needed a moment to take it all in.
"It was amazing," he said. "That was best part of the whole weekend."
AMERICAN-STATESMAN STAFF
Marathon training partners Gerry Moreau and George Gibbons were on pace Sunday to finish their first big race together in 4 hours, 30 minutes , the goal they'd set after months of practice.
They lost 20 minutes working to save a man's life.
The two paramedics from Austin-Travis County Emergency Medical Services were nearing mile 15 of the 26.2-mile Rock 'n' Roll Mardi Gras Marathon in New Orleans when Gibbons saw that a small crowd had gathered around a collapsed runner.
Gibbons, 45, who has more than 15 years' experience as a medic, rushed over and dropped to his knees. He checked for a pulse. It was very faint.
He placed his hand on the runner's chest. He knew the man's heart was stopping.
"He was barely breathing, maybe two or three times a minute," Gibbons said.
By then, Moreau, 41, was kneeling beside him.
"What's happening?" he asked. The paramedics, who rarely team up in Austin, began working together to keep 54-year-old James McKinnon of Waterloo, Ind., alive.
For the next four minutes, the medics, tired from the race and with sweat dripping from their faces, took turns pumping McKinnon's chest. They learned his name and hometown from the bib runners are required to wear.
A nurse who was watching the race joined in, pressing a few breaths into the roadside patient.
Paramedics for New Orleans Emergency Medical Services and the agency's top doctor arrived a short time later and continued CPR. Gibbons and Moreau told them everything they'd done.
They watched as medics loaded McKinnon into the ambulance. Then they decided to resume running.
"There was nothing else we could do at that point," Gibbons said.
New Orleans EMS officials said by the time they got the man to the Interim Louisiana State University Public Hospital, he was breathing again.
"All the stars lined up for this guy," New Orleans EMS spokesman Jeb Tate said. "What happened was a passage right out of a textbook."
McKinnon remained in intensive care Monday. Family members could not be reached for comment.
Moreau and Gibbons spent the rest of the race ticking away the miles and wondering whether McKinnon had survived.
Moreau finished the marathon, his ninth, in 4 hours, 52 minutes — about 10 minutes ahead of Gibbons, who was running his first. When Moreau crossed the finish line, he got a medal draped around his neck with thousands of other runners. But he wanted to find out the fate of the man he and Gibbons had helped.
Then he saw some New Orleans paramedics a few feet away.
He told them that he was one of the runners who had tended to McKinnon.
"'We've been waiting for you guys this whole time,'" Moreau said one of them told him. "'He made it.'"
Moreau said he needed a moment to take it all in.
"It was amazing," he said. "That was best part of the whole weekend."
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