Getting care for a fracture while your slip-and-fall claim is pending

Attorney Answer

Get the foot seen now: the claim does not require you to wait, and a fracture that is changing shape is a medical problem first. One common way a client with no insurance gets treatment while a claim is pending is a letter of protection, under which a doctor or surgeon agrees to treat you now and be paid out of any recovery. Ask the firm for one in writing, or for a referral to a provider closer to you who will wait for payment. If the firm does not respond, you can talk to another lawyer about the case.

Do not let the claim decide when you get care. If the pain or the change in your foot is getting worse, an emergency room is the place to start. Hospital emergency departments generally must give a medical screening exam to anyone who comes in, whether or not they can pay. Many hospitals and public health systems also have financial-assistance programs for patients without insurance, and it is worth asking about them. Getting treated helps the claim as well, because gaps in treatment are something an insurer will point to.

What a letter of protection is. It is a private arrangement, usually set up through your lawyer, in which a provider agrees to treat you now and wait to be paid from any settlement or judgment. No provider has to accept one, and the bill does not disappear: read what you sign, including what happens to the bill if the claim does not recover. Asking your lawyer for one, or for the name of a provider who works this way, is a reasonable request.

The hospital bill you already have. Tex. Prop. Code § 55.002(a):

(a) A hospital has a lien on a cause of action or claim of an individual who receives hospital services for injuries caused by an accident that is attributed to the negligence of another person. For the lien to attach, the individual must be admitted to a hospital not later than 72 hours after the accident.

If you were admitted within 72 hours of the fall, the hospital may claim part of any recovery for that care, and Tex. Prop. Code § 55.004(b) limits the lien to the lesser of the charges for the first 100 days of hospitalization, half of what you recover, or, where the court or jury states an amount awarded for the hospital charges, that award less a share of the fees and expenses of pursuing the claim. The lien concerns care you have already received. It does not arrange or pay for treatment from here on.

Your claim against the store. A store owes a customer reasonable care against unreasonable risks of harm it knows about or should know about: Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983). Under Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992), the claim turns on whether the store knew or should have known of the condition that made you slip, whether that condition posed an unreasonable risk, whether the store used reasonable care, and whether that failure caused your injury. What you slipped on, and how long it had been there, bear on whether the store knew or should have known.

If the firm is not responding. Lawyers have a professional duty to keep clients reasonably informed about their cases and to respond to reasonable requests for information. If calls are not being returned, put your questions in writing. You are entitled to a copy of your file. The State Bar of Texas also runs a client-attorney assistance program for problems in communication between clients and their lawyers, and contacting it does not end your case. The State Bar also has a grievance process for complaints about a lawyer's conduct.

Changing lawyers. You can hire a different lawyer, but the first firm's contract can still matter. In Mandell & Wright v. Thomas, 441 S.W.2d 841 (Tex. 1969), the Supreme Court of Texas held that when a client discharges a lawyer without good cause before the work is done, the lawyer may recover on the contract for the amount of the fee it sets. Whether a firm's conduct gives good cause depends on the facts, so have any new lawyer read your agreement and explain how the first firm's claim would be handled before you sign anything.

What you can do

1. If the pain or the change in your foot is getting worse, go to an emergency room now.

2. Send the firm a written message, by email and by mail, asking for the status of your case, whether suit has been filed, and whether they will provide a letter of protection or a referral to a provider within reach who will wait for payment. Ask for a reply by a specific date.

3. Ask in writing for a copy of your file.

4. Ask the hospital that treated you, and any public hospital or clinic near you, about financial assistance for patients without insurance.

5. Keep a dated record of every call, message and appointment, and keep every bill and medical record.

6. If the firm still does not respond, call another Texas personal injury lawyer, describe where things stand, and bring your fee agreement.

7. Even if you are handling this yourself, you would be best served by a brief phone consultation with a local Texas attorney before you act. Most lawyers offer a short initial call at no cost, and a few minutes on your specific facts — and on how your court actually handles this — is worth more than any general guidance, including this page.

⏱ Time limits apply. Tex. Civ. Prac. & Rem. Code § 16.003(a) requires a suit for personal injury to be brought “not later than two years after the day the cause of action accrues”. Having a lawyer does not stop that clock, so ask in writing whether suit has been filed, and have a Texas attorney confirm the date.