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."

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."

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."

Establish ‘loser pays' rules, in which people who sue and lose must pay court costs and legal expenses of the people they sued.

Enact ‘early dismissal' option for obviously frivolous lawsuits.

Establish expedited trials and limited discovery for lawsuits with claims between $10,000 and $100,000.

By Tony Plohetski
AMERICAN-STATESMAN STAFF

It didn't last long, but it caused plenty of trouble.

Austin shut down — and hunkered down — on the third day of an Arctic blast after a layer of freezing rain coated streets and highways. Up to 2 inches of snow followed Friday, blanketing the region.

The conditions brought the area to a crawl, leading schools to cancel and businesses to shutter and causing hundreds of wrecks as motorists ventured onto streets that in places resembled ice-skating rinks.

But by late afternoon Friday, most of the snow and ice had melted. Temperatures warmed to 40 degrees, and forecasters predict that they will rise to near 60 today — the most balmy since a strong cold front swept through the area Tuesday and plunged temperatures into the teens and 20s.

Although authorities deemed most of the more than 300 crashes in Austin minor, a North Texas teenager was killed late Thursday near Pflugerville in a collision that injured three other teens.

Hospital officials treated crash victims and people who had slipped and fallen. St. David's Medical Center reported that it had tended to two people for hypothermia.