Choosing Between Chapter 7 and Chapter 13 Bankruptcy in Texas

Posted by on Feb 4, 2015 in Bankruptcy | 0 comments

You have made the decision, and your family concurs. You will file for bankruptcy because you have no means of paying your debts without sacrificing your basic needs and that of your family. The next issue is choosing the best way to go about it. Would you be better off with Chapter 7 or Chapter 13?

Bankruptcy is governed by federal law, and although states have their own set of laws for it, they typically closely follow the federal statutes. Under bankruptcy law, there are two distinct types of personal bankruptcy that an individual can file classified as Chapter 7 (because it is Chapter 7 in the Bankruptcy Code) or Chapter 13.

Chapter 7 is liquidation, in which the debtor agrees to place all non-exempt assets into an estate under the management of a court-appointed trustee, who will then distribute the proceeds of the sale of assets to the creditors. A Waco bankruptcy lawyer would make sure that all exempt assets under this type of filing are excluded from the estate. In exchange, the court forgives any debt that may be remaining (with some notable exceptions such as back child support and student loans), enabling the debtor to start fresh. The whole process from filing to discharge takes about six months.

Chapter 13, on the other hand, is reorganization. The debtor agrees to work with the court to construct a repayment plan to manage debt and to negotiate with creditors for better interest rates, longer terms, and waiver of late fees. The debts are not forgiven, although in most cases only part of an unsecured debt i.e. credit card debt needs to be part of the debt management plan. In general, the court allows the debtor up to 5 years to discharge their debts. If the debtor fails to follow the plan, the court may dismiss the petition.

As you can see, Chapter 7 is resolved faster and involves less work for all parties. But because debt forgiveness is involved, the courts reserve this privilege for those who can pass a means test of income. In other words, if you actually have the means to pay, you won’t qualify for Chapter 7. That leaves Chapter 13, which is easier to qualify for. However, if you have property you want to keep that is non-exempt, then Chapter 13 is the better option for you.

Which one will be better for you at the end of the day depends on your circumstances. Consult with a bankruptcy lawyer in your state for a clear picture of your available options.

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Apples and Oranges: Disputes against Talc-Related Cancer Research Findings

Posted by on Sep 18, 2014 in Defective Products | 2 comments

There has been a recent upsurge of interest in the link between talcum powder and ovarian cancer following the results published in the journal Cancer Prevention Research (“Genital Powder Use and Risk of Ovarian Cancer: A Pooled Analysis of 8,525 Cases and 9,859 Controls” Cancer Prev Res August 2013 6; 811) . The study was a meta-analysis of 8 smaller studies, the data collected in each combined to provide a sufficiently large number of subjects to validate a common finding: talcum powder increases the risk of developing ovarian cancer.

But not all doctors agree that there is sufficient evidence for this conclusion. Some base their opinions on a technique called talc pleurodesis which is used to relieve the discomfort of lung cancer i.e. mesothelioma patients suffering from fluid buildup in the pleura (space between the chest and lung linings). Sterilized talc powder is applied to the pleura once the fluid has been drained in order to close the pleural space and prevent effusion. It does not cure the cancer, but it does make it easier for the patient to breathe.

Naysayers state that this is proof positive that talc does not cause cancer; in fact, it may just indicate the opposite. Pleurodesis is effective because the talc irritates the linings, causing inflammation and thus closing the space. Researchers reporting a link between genital powder and ovarian cancer posit a similar reaction when talc particles find their way up the reproductive tract and lodge in the tissue, which encourage the growth of cancer cells. According to talcum powder lawsuit lawyers at Williams Kherkher, these studies show that at the very least talcum powder manufacturers should have warned the public of the possibility of risk when it was first indicated (“Talc and carcinoma of the ovary and cervix” J Obstet Gynaecol Br Commonw. 1971; 78:266–272), just to be on the safe side.

If you have just been made aware that your ovarian cancer may have been caused by using talcum powder in the genital area, you should take action immediately. Contact a reputable talcum powder lawyer to find out your legal options.

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Power Morcellator Lawsuits

Posted by on Sep 3, 2014 in Medical Issues | 0 comments

Studies conducted by the National Institutes of Health tell that hysterectomy is one surgical procedure that many women in the United States (and around the world) will need to undergo in their lifetime. Presently, there are 600,000 hysterectomies performed in the US every year, making it the second most common surgery after Caesarean section.

Hysterectomy is a surgical procedure wherein a woman’s uterus or womb is removed. This is done for various reasons, such as to eliminate/remove or treat chronic pelvic pain, uterine fibroids or myomas (benign tumors growing in the uterus), tissues that cause cancer (like cervical cancer, ovarian cancer or cancer of the uterus), vaginal bleeding, uterine infections, adenomyosis, uterine prolapse and endometriosis.

There are different ways of performing hysterectomy. There is the:

  • Abdominal Hysterectomy – which is an open surgery that requires a 5-7 inches vertical or horizontal incision in the abdomen)
  • Laparoscopic Hysterectomy – also known as minimally invasive surgery wherein four minimal (0.5-1cm) incisions are made. These incisions are passage ways for the laparoscope (a small camera that will allow a doctor to see inside the body and guide him/her in cutting the uterus into small pieces), the power morcellator (a surgical device used to cut the uterus or fibroids into small pieces), and other surgical tools
  • Vaginal Hysterectomy – wherein the uterus or fibroids are cut and removed from within the vagina instead of through the abdomen)
  • Laparoscopically Assisted Vaginal Hysterectomy or LAVH – a procedure that makes use of a laparoscope to guide the cutting and removal of the uterus through the vagina.

The introduction of the power morcellator in the 1990s gave doctors a device that could enable them to perform hysterectomies or myomectomy (removal of uterine fibroid), easier, faster, with lesser chances of complications, with less pain and blood loss, and through very tiny cuts that heal much faster, compared to the 5 – 7-inch abdominal incisions required in traditional (or open surgery) hysterectomies.

A power morcellator is a device designed to mince oversized tissues into tiny pieces so that these can be removed through 0.5-1cm incisions in the abdomen. It is used in laparoscopic surgeries to remove the uterus or uterine fibroids. Despite the many advantages it could provide, however, its continued use has been discouraged by the US Food and Drug Administration in laparoscopic surgeries as studies have shown (and actual cases have been reported) that women treated with a power morcellator during fibroid removal can suffer from the possible spread of unsuspected cancerous tissues known as uterine sarcoma.

Since 1995 the FDA has approved the use of power morcellators from different manufacturing firms, including those from Ethicon, Johnson & Johnson’s power morcellator manufacturing division. Cases of women diagnosed with leiomyosarcoma, a type of deadly cancer resulting from the spread of uterine sarcoma, have already been reported and lawsuits have also been filed against manufacturers of the device used on them.

Filing a morcellator lawsuit would definitely be the right of women injured by power morcellators as these legal actions can enable them to receive compensation (from the manufacturers or other parties responsible) that will cover medical treatment, pain and suffering and other damages that the court will recognize.

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Things Employees Ought to Know about Short Term Disability Benefits

Posted by on Jan 28, 2014 in Disability Options | 0 comments

Many employees think that a serious medical condition or disability is enough reason to permanently remove their names from their company’s roster of employees. This is because many are not aware of the time off from work that the law allows them to avail of and enjoy or that even in the event of a brief period of disability, getting time off from work (without losing pay) can offer them relaxation, which can lead to improved health, better quality of life and even a longer career.

While no employers are mandated by any law to pay employees who incur absences due to temporary disability or illness, there are still employers who offer their workers “paid disability time off.” This paid disability time off includes: sick leave for those who need a few days off from work, usually due to sickness; a short-term disability period, which usually lasts for about a week or more (a usual short-term disability plan pays employee benefits for about 13 to 26 weeks); and, a long-term disability period, which employees may apply for in cases of longer or permanent disability.

Sick leaves are separate and distinct from vacation leaves and other paid time off from work. Some employers grant a 10-day sick leave to their employees, which, if not used, may either be carried over (totally or partly) to the succeeding year; there are also employees who forfeit all unused sick leaves, starting a new clean slate at the start of the year.

While some employers may also offer short-term disability benefits, they require their employees to use all of their sick leaves first before applying for disability plans. Employees who have used up all their paid sick leaves but still need longer time for recovery can avail of paid short term disability leaves (if their employers offer these). The short-term disability pays a part of the employee’s salary, usually between 50% and 75%, which may start either at the time when the sick leave has all been used up or after the employee has already been absent for about a week.

Whatever the company policy is regarding sick leave and short-term disability benefits, employees need to be aware and updated for possible changes; employers, on the other hand, ought to make sure that employees are aware of their rights regarding such paid time off.

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Dividing Assets, Properties and Debts in the Event of Divorce

Posted by on Jan 11, 2014 in Family Issues | 0 comments

One of the toughest issues to settle during the process of divorce is division of properties, assets and debts – everything that the divorcing couple has worked for or has had before deciding to part ways. The frustration becomes greater when both parties cannot come to an agreement; a situation still made worse with the absence of a prenuptial agreement, which automatically protects the assets and properties of an individual earned prior to marriage.

Division of wealth and debts is one issue that will straightforwardly affect each of the spouse’s financial future. Thus, if no terms become agreeable to both parties, it will be up to the judge to decide, under certain conditions, which property goes to whom and how much of the acquired debt is paid by each.

Since only marital assets, properties and debts (those acquired within the bond of marriage or during the union) are subject for division, the court will need to determine first which of these are marital and which are non-marital. And, when referring to assets and properties, these include vehicles, valuables (like arts and antiques), saving accounts, bonds, stocks, commissions, bonuses, mutual funds, life insurance, pension plan, retirement plan, deferred compensation and retirement savings plan (also known as employer-sponsored 401K). If a house was purchased during the union, this marital home is usually awarded to the parent who will have child custody, but only until the child reaches the age of 18 or finishes high school.

Knowing the laws (regarding divorce and property division) of the state where you reside is important since states differ in how their courts divide assets, properties and debts. Despite the differences there are factors commonly considered by courts when making decisions, such as the spouse’s income and earning capability, age, health, length of marriage, the specific property and income contributed by each into the marriage and the standard of living during the union. Consideration of these factors are true in 41 states, which make sure that division is fair and reasonable; in the other nine (Texas, Nevada, Louisiana, Wisconsin, New Mexico, California, Arizona, Texas and Washington), however, if the laws have not been changed, then the 50-50 rule division is still in effect.

On its website, the Law Office of Andrew A. Bestafka, Esq., speaks of how divorce can be both an overwhelming and demoralizing experience to go through. And while there is the need to ensure the best future for the children (if there are any), one cannot sacrifice his/her own interests. Thus, every decision, even the refusal to accept terms, is critical.

The need to arrive at a settlement fast, without having the need to bring the issues to court, is equally important. Oftentimes, issues become easier to settle with the help of lawyers who will help you and your spouse draw the conditions and terms of the agreement. Hiring a family lawyer would really be a big help in making divorce a less devastating procedure to go through.

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The Dangers of Sitagliptin or Januvia

Posted by on Jan 9, 2014 in Defective Products | 2 comments

Sitagliptin, which is marketed as Januvia in the US, has been approved by the U.S. Food and Drug Administration for use by adults suffering from type 2 diabetes mellitus. This dipeptidyl peptidase-4 (DPP-4) inhibitor or diabetic drug was intended as an addition to exercise and diet to help improve the control of blood sugar level. This oral anti-diabetic drug (anti-hyperglycemic) was introduced by Merck & Co. and earned FDA approval on October 17, 2006. The FDA, likewise, permitted Sitagliptin to be combined with metformin and to be marketed under the name Janumet.

Compared to placebo and other type 2 diabetes drugs, this enzyme-inhibiting Sitagliptin or Januvia is known to cause fewer side-effects, such as lesser gain in weight and hypoglycemia. The enzyme that Januvia specifically inhibits is dipeptidyl peptidase 4 (DPP-4), which breaks down the Gastric inhibitory polypeptide or GIP and glucagon-like peptide-1 or GLP-1 (GIP and GLP-1 are the two major incretin hormones that are discharged by the intestine upon intake of nutrients or glucose). DPP-4’s prevention of GIP and GLP-1 inactivation causes an increase in insulin secretion while suppressing the pancreas from the releasing the hormone glucagon; this, in turn, results to normalization of blood glucose level.

Despite its efficacy, Januvia has been found to cause acute pancreatitis (the sudden inflammation of the pancreas which can result to severe complication or death). In fact, eighty-eight acute pancreatitis cases were reported to the FDA between the 16th of October in 2006 and the 9th of February 2009.

Thus, on September 25, 2009, the FDA required a revision in Januvia’s prescribing information to include information that tells about the reported acute pancreatitis cases associated with the drug. The FDA also asked the drug’s manufacturer to include: reports of necrotizing or hemorrhagic pancreatitis (severe forms of acute pancreatitis) in the prescribing information; the need for healthcare professionals to closely and carefully monitor patients for any sign of pancreatitis development after the drug has been prescribed to them; and, the need to stop use of the drug if pancreatitis is suspected during its use.

An article on the website of Williams Kherkher also speaks of medical findings that prove the high risk of developing pancreatic duct metaplasia, a “pre-cancerous cellular change” that is serious and a potential threat to life, due to use of the drug.

When it involves loss of lives due to the use of drugs, no one has the right to say that the drug’s benefits outweigh the harm. Medication is supposed to provide cure, not more serious illnesses or even death. The manufacturers of harmful drugs, including Merck & Co., have a lot to answer to the individuals (and their families) for the worse illnesses, instead of cure, that these individuals have been subjected to.

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Use of Bluetooth Headset for Safer Time on the Road

Posted by on Jan 6, 2014 in Truck Accidents | 0 comments

Road safety should be the concern, especially, of truck drivers due to the huge size of their vehicles and the cargo loaded in their trucks. Despite the training a truck driver has undergone and the skills he/she has in handling his/her truck, an accident will likely occur if he/she takes traffic rules lightly or chooses not to observe such rules.

According to the National Highway Traffic Safety Administration (NHTSA), one of the most common causes of truck accidents is driver error, particularly the unrestrained use of handheld phones or cell phones, especially, while driving. Despite the ban imposed by the U.S. Department of Transportation on the use of cell phone when driving plus the higher fines and harsher punishments imposed on violators, many drivers still seem to take the law lightly. This is despite the law’s intent, which is to make roadways safer for all drivers and reduce the number of car wrecks.

The Department of Transportation‘s serious campaign in significantly reducing accidents involving trucks has, thus, led to the mandate on commercial drivers (such as truck, bus and corporate fleet drivers) to use a bluetooth headset both while driving and when idle.

A Bluetooth headset is a device that is capable of allowing a two-way connection through Bluetooth, a wireless technology. The device is designed to fit to an ear; there are also newer designs where the device is inserted into specially-designed caps that utilize bone conduction speakers to enable communication.

The mandate on the use of a bluetooth headset, to lessen distracted driving, took effect on January 1, 2013. A $2,750 fine will be imposed on violators each time they violate the mandate; repeated violation will also result to banning from further operation of any commercial vehicle. Besides these, the federal government has also allowed states to suspend the license of any commercial driver who commits two or more serious traffic violations.

No driver ought to think that imposing the use of Bluetooth headset is a limitation of their freedom to do whatever they want. On the contrary, hands-free headphones or Bluetooth headsets give them more freedom on the road as these devices allow them to communicate with anyone while driving, but without taking their full attention off the road. Beside, these will ensure the safety not only of other motorists and pedestrians, but their own safety as well.

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Overtime Pay – A Legal Right of Non-exempt Employees

Posted by on Jan 5, 2014 in Business Laws | 0 comments

Opening your own business is an exciting time, however, with all of the business laws that come along with starting your own business, it can be a bit discouraging. When planning to start a business, a business lawyer would be the best person to assist you due to his or her knowledge of all the local and federal procedures and legal requirements that you will need to prepare and submit. Your lawyer will also be able to help you plan the course your business will take, as well as help you take care of the many different business essentials, including compliance with federal and state laws on safety in the workplace, company taxes and liabilities, company debts, workers’ insurance benefits, business deal contracts, employment contracts, hiring new employees, company policies and employee compensation and benefits.

Compensation or salary is a very important element in the growth of a business. Competitive pay will enable you to hire the best people and when these people see and feel that you value them by giving them what they believe is their due, you will never worry about their loyalty. This includes incentives and pay for overtime work.

Sadly, many employers deny their workers payment to work rendered beyond their regular working schedule. This is why overtime disputes are very common even in big companies in the U.S. As far back as 1938 the federal government has already addressed this issue by passing into law the Fair Labor Standards Act (FLSA) to ensure that, besides getting just wages, employees eligible for overtime work are paid justly.

Not all employees, though, are eligible to render overtime work and, thus, receive overtime pay; only non-exempt employees are. Workers who are considered to be exempt, or not eligible to do overtime work are professional, administrative and executive, employees, some skilled computer professionals, employees in certain recreational establishments, outside sales employees, switchboard operators in small telephone firms, seamen in foreign vessels, fishermen, farm workers in small farms, casual babysitters and care-takers, among so many others.

Those who are non-exempt and can render overtime work include both full-time and part-time employees, hourly or salaried workers and temporary employees. Non-payment of overtime pay is a violation of federal laws. Employees who are denied the pay that is due them are given the legal right to bring erring employers to justice and to receive whatever pay the law stipulates to be their right to have.

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Social Security Disability Benefits: Making Sure that Your Application Doesn’t Get Denied

Posted by on Jan 4, 2014 in Disability Options | 1 comment

Though disability is a dreaded eventuality for many, there are research studies which still show that three out of ten new, young employees will most likely get disabled before they retire. Thanks to the Social Security Administration which provides monetary benefits to individuals who lose the ability to work for at least a year due to disabling medical condition. To qualify for Social Security disability benefits, however, one will first have to declared disable according to how SSA defines the word.

To the word “disabled” SSA associates three elements: inability of the person to continue the work he/she performed before the disability; the incapacity to do any other form of work due to medical state; and, the disability is expected to last for at least a year or may result in the person’s death. Such disability is total and permanent – the type that SSA considers eligible for the benefits applied for. This means that those suffering from partial or short-term disabilities are not covered by SSA, which has two major programs, namely, the Supplemental Security Income (SSI) and the Social Security Disability Insurance (SSDI).

The Supplemental Security Income is a benefit given to a disabled individual who has limited income and resources. The Social Security Disability Insurance (SSDI), on the other hand, is given to insured workers 65 years old and below. “Insured worker” refers to any employee who has earned work credits through payment of SS taxes; such employee should also have worked just recently and long enough to qualify for the SS disability benefit.

To help SSA determine fast if a claimant’s disability qualifies him/her to receive benefits, it has drawn up a list of severe medical conditions; illnesses or disabilities found in this list can automatically render a claimant eligible to the benefit applied for.

Oftentimes, even if a person is qualified to receive benefits, his/her application gets denied due to technical errors and/or lack of the required documents.

To help the SSA expedite the evaluation and processing of your claim application, it is important that you make sure that all the required documents (original or certified true copies) and all information about yourself plus proofs of your disability are submitted with the correctly filled out claim form.

Hiring a lawyer to help you acquire, prepare and submit all needed forms and documents can be a good move to help you get over the worry of probably having missed anything that can result to denial of your application.

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Cerebral Palsy and Its Known Causes

Posted by on Jan 3, 2014 in Birth Injury | 1 comment

Cerebral palsy (CP) is an injury that is most common to children. It is caused by the abnormal development of the brain or injury to the brain, resulting to impairment in muscle coordination or loss of motor function. This injury, which is usually sustained during pregnancy, birth or soon after birth, has and continues to impair children’s ability to play, eat, walk and do all other things common to them.

Before 1980, the belief that asphyxia, or the lack of supply of oxygen to the baby’s brain during labor or birth, was held by scientists as the major cause of cerebral palsy. It is true that the time spent by the unborn child in his/her mother’s womb, as well as the time of birth, is critical, as mistakes (like wrong medication during pregnancy and wrong dose of anesthesia during delivery) may be committed; but these mistakes may not directly cause brain damage that results to cerebral palsy.

Newer studies have led scientists to discover that damage to the brain of the unborn usually happens up to the second trimester (6 months) of pregnancy and that the damage is frequently due to:

  • Periventricular leukomalacia (PVL) – a condition wherein death of small areas of brain tissues around the ventricles occurs. PVL is usually caused by rupturing or infection of the uterus, decrease in blood flow (or ischemia) and low blood pressure (or hypotension) due to caesarean birth.
  • Abnormality in the development of the brain – from the first to the sixth month of pregnancy, the unborn child is most vulnerable to abnormal growth/development of the brain. Head trauma, parasite infection or toxoplasmosis and other forms of viruses can cause these abnormal growths which, in turn, can lead to changes in the way the brain communicates with the different muscles inside the body.
  • Intracranial hemorrhage or internal bleeding – An intracranial hemorrhage stops the flow of blood to the vital tissues of the brain, resulting to damage or death of such tissues.

Birth injuries, specifically cerebral palsy, can cause demoralizing consequences to the lives of both parent and child; its effect on the child, however, is much heavier as it is sure to impair the affected child’s cognitive and physical development, which will require rehabilitative care and costly medical treatment for life.

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