Austin Personal Injury Lawyer

Costs Up, Access Down, Medical Errors Unabated. Should TX Really Be Our Health Care Model?

Alex Winslow — Tue, 06 Oct 2009 12:14:32 GMT

Health care reform has been dominating the headlines for months now. The special interests headed by the insurance industry are doing everything they can to take advantage of the confusion on Capitol Hill over the direction health care reform should take by trying to infuse anti-patient provisions that are designed to lock patients out of the courthouse into the debate.

This is a tried and true tactic for these interests. I’ve seen it happen in Texas where we have been on the front line of a decades-long struggle to preserve and restore our legal rights.

The insurance interests’ plan is to insert Texas-style, anti-patient provisions in the guise of “reform.” Regardless of the hype coming out of these special interests, policymakers should be wary of using Texas as a model.

When insurance lobbyists in my state rammed through legal changes designed to severely limit the legal rights of Texas patients, we heard high-falutin’ rhetoric promising dramatic improvements in the cost, access, and quality of health care.

What has actually happened?

Texas health care costs have increased faster than the national average
Health insurance premiums for Texas families have jumped 92% since 2000
Texas ranks near the bottom in per-capita physicians
Rural and under-served areas in Texas continue to struggle to attract new physicians
Texas has the nation’s highest rate of uninsured

Hardly a ringing endorsement of Texas as a model for the rest of the country.

Lowering costs for both the overall health system, as well as individual families, is necessary, but it won’t be accomplished by stripping patients of their rights. According to the Congressional Budget Office, the entire cost of the medical liability system accounts for only 1.36% of overall health costs – more a rounding error than a panacea. The focus should be on preventing malpractice, not sweeping it under the rug.

As for costs for families, why would we use Texas as an example when Families USA recently found that since 2000 health insurance premiums for Texas families increased 92% - more than 4.5 times faster than income? This during a period of rising deductibles and falling benefits.

As for access to care, the Census Bureau has reported that with 24.5% of our citizens without health insurance, Texas has the nation’s highest rate of uninsured. Also, the American Medical Association has found that Texas ranks 43^rd in the number of doctors per capita, and that more than half of Texas counties have an acute shortage of primary care physicians.

As proof that under-served areas continue to have trouble attracting new doctors, our Republican legislature, along with Republican governor Rick Perry, were compelled to raise taxes this year to fund projects designed to attract physicians to rural areas. This tax hike came six years after so-called tort “reform” was enacted with the promise of improving access to care.

Finally, there is no doubt that medical facilities are enjoying significant savings because patients harmed by medical negligence have had their rights severely restricted. However, there is no evidence that these savings are being used to lower overall health costs. To the contrary, in the three years after Texas imposed arbitrary restrictions on patients’ access to the courthouse, we have seen overall Medicare spending increase 16% faster than the national average, according to data compiled by the Dartmouth Atlas of Health Care. In fact, 10 of the 15 health markets with the highest Medicare spending per enrollee are in states in which the medical and insurance industries successfully lobbied for severe limits on patient rights. Four of the nation’s most expensive health markets are in Texas.

According to the highly regarded Institute of Medicine report “To Err Is Human,” 98,000 Americans die each year as a result of medical errors, and the CDC has found that another 99,000 Americans succumb to hospital-acquired infections every year. Ending the epidemic of medical errors by preventing these needless deaths is a far better way to reduce health care costs than stripping patients of their legal rights.

The reality is that none of this has been or ever will be fixed by taking away the legal rights of patients. Unless we move beyond the insurance industry’s talking points and enact real reforms that force competition in the insurance market, strengthen safety standards, and restore accountability, we will continue to be plagued by an inadequate healthcare system that does more for insurance companies than it does for patients.

Originally posted at InjuryBoard by Alex Winslow

More On Work Zone Safety

Brooks Schuelke — Wed, 05 Aug 2009 09:40:35 GMT

I missed the boat. Yesterday, I wrote about the horrific tractor trailer crash near Gainesville, Texas. The wreck, which killed a Bedford, Texas couple and a Louisiana man, occurred near a work zone where traffic was backing up.

In that post, I mentioned the Texas Transportation Institute's National Work Zone Safety Clearinghouse. I should have posted a link to the clearinghouse because it is a wealth of information. In any event, the clearinghouse can be found here.

The website is an almost limitless source of information about construction zone wrecks. For example, I was able to ascertain from the databases linked to the website that in 2007, Texas had 36 fatal trucking wrecks in work zones. That was just over 17% of the nation's total. In 2006, Texas had 41 fatal trucking wrecks in work zones, or just over 15% of the nation's total. In 2005, Texas had 40 fatal trucking wrecks in work zones, or just under 14% of the nation's total. From that, it looks like the safety in work zones is improving, but Texas is not improving as much as the rest of the country.

The website obviously has a lot of information designed to improve the safety of construction zones. For example, it contains driving tips, offers training, and has a library of videos about work zone safety issues.

If you have any interest in work zone safety issues, you should check out the website.

Originally posted at InjuryBoard by Brooks Schuelke

Lessons From A Tractor-Trailer Crash -- Be Careful In Construction Zones

Brooks Schuelke — Tue, 04 Aug 2009 12:27:15 GMT

Yesterday, a horrific tractor-trailer wreck occurred in North Texas when an eighteen wheeler slammed into the back of traffic stopped on Interstate 35 near the Texas-Oklahoma border. Tragically, three people (Anthony and Kimberly Brandon of Bedford, Texas and Darryl Hoosier of La.) were killed in the wreck. The Brandon's vehicle exploded on impact. Mr. Hoosier was killed as the eighteen wheeler, driven by James Crayton, of Dallas, pushed Mr. Hoosier's vehicle into another tractor-trailer that was in front of Mr. Hoosier.

What lessons can we learn from this? The Cooke County Sheriff investigating the case noted that this is the second fatal collision at this construction zone this month. And the wreck is not unique. Auto accidents in construction zones are becoming more and more frequent, and are killing more motorists. It is critical that people are aware of the risks and start paying attention. As the Texas Department of Transportation says:

Just why are there so many wrecks? Speeding is one reason. However, our contractors and maintenance crews say people not paying attention to their driving is probably the biggest reason for wrecks. Situations and circumstances are always changing in work zones. Lanes narrow and traffic often slows down to much lower speeds. In fact, one out of every three work zone wrecks involve rear-ended crashes. There's a good chance you'll run across a construction zone the next time you hit the highway. Remember to slow down, pay attention, and give some space to the car in front of you.

Given the facts of this wreck, it's clear to me that the driver of the tractor-trailer was distracted by something; you don't just hit someone full speed if you're paying attention to the roadway. This is speculation on my part, but from working trucking cases, I'm guessing the driver was either over-worked or using a cell phone, for talking or texting.

Whatever the cause of the wreck, I hope the families involved find some peace somewhere. These are the types of tragedies that should never occur.

Originally posted at InjuryBoard by Brooks Schuelke

Let's Avoid Any More Boat Accidents On Lake Austin

Brooks Schuelke — Mon, 03 Aug 2009 10:54:23 GMT

My wife and kids went out on Lake Austin last Thursday with some family members. When I asked my wife how it went, she told me it was crowded. With Lake Travis being so low that it is almost unusable, there are too many boaters and too many big boats now using Lake Austin, making it dangerous.

Sadly, that was evidenced this weekend. A boat wreck occurred Saturday, near Mt. Bonnell, sending two young children and others to the hospital. Cody Painter, the driver of one of the boats, has been arrested for intoxication assault.

As traffic on the lake increases, boaters need to take action to protect themselves and others. At a minimum you should:

1. Avoid drinking and driving. This should go without saying, but a significant percentage of boating accidents involve alcohol.

2. Use your lights. Austin Lake Police have indicated that one of the biggest risks of danger is night time collisions.

3. Wear your life vest. I remember when I was a kid and my dad lived on Lake Austin. I couldn't wait until I turned 14 so that I didn't have to wear a life vest in the boat. That was a bad idea. The Centers for Disease Control has even devoted its 2009 Safe Boating Campaign to encourage everyone in boats to wear a life vest at all times.

4. Look out for others. As the lake crowds increase, make sure you are cognizant of other skiiers, tubers and wakeboarders. And always remember that as you follow, they could fall in an instant. On the other hand, when you voluntarily stop to get in and out of the water, make sure that you are doing so in as safe a place as possible.

If any of you have any more tips, please feel free to share them. Everyone that uses the lake has a responsibility to help keep it safe.

UPDATE:

This wreck hits a little closer to home. I just received an email that the adult that was seriously injured was a parent of one of my son's classmates, and the two other children are neighoborhood kids. One of the children is very seriously injured so please keep all involved in your thoughts.

Originally posted at InjuryBoard by Brooks Schuelke

What Can Be Done To Protect Dallas Motorists From Wrong-Way Drivers?

Brooks Schuelke — Fri, 31 Jul 2009 10:48:21 GMT

I previously wrote that I thought the North Texas Toll Authority was not doing enough to protect motorists on the Dallas North Tollway from wrong way drivers. If that’s the case, what can be done?

First, I think the NTTA needs to take a real tough look at the design of the on-ramps and off-ramps of the tollway. I know that Sherita Coffelt, the NTTA spokeswoman, has remained steadfast that no problems exist with configuration, but it’s clear that something is wrong. I know that in several other states, the various transportation departments have been able to drastically reduce the wrong-way driver incidents by such simple tactics as adding or removing barriers to more clearly direct traffic, making it harder for drivers to get on roadways going the wrong direction and easier for drivers to get on roadways properly. The NTTA needs to have the experts at the Texas Transportation Institute look this over and see if any solutions exist.

Second, since warning drunk drivers they’re driving the wrong way is largely ineffective, the NTTA should investigate a system to warn drivers going the correct way when wrong way drivers might be present. For more than a decade, New Mexico has used an Intelligent Transportation System (ITS) to warn drivers driving the correct way of the presence of wrong way drivers. The system uses a vehicle sensor near exit ramps. When vehicles are detected driving the wrong way, the system triggers two flashing lights; one light facing the wrong way driver flashes warning him or her, and another light facing the proper flow of traffic starts flashing to warn that traffic of the presence of a wrong way driver. This gives a warning to the drivers that are actually in a position to react — drivers driving the proper direction. Since then, other states have experimented with the use of various ITS systems to warn drivers and to even automatically warn public safety officials about the presence of wrong way drivers.

Third, the NTTA should take the lead on educating the driving public on how to "defend" themselves from wrong way drivers. For instance, most wrong way wrecks occur in the left lane of traffic (because drivers going the wrong way tend to stay to their right). The public should be warned to limit their driving in the left lane after dark, the peak time for wrong way wrecks. The NTTA should take the lead on an educational campaign to provide tips such as this to motorists.

In the last bit of hope, leads may also be coming from the automotive industry. For example, BMW and Nissan are both working on systems that would use vehicles’ GPS and navigation systems to warn the car’s driver, and potentially other drivers, when the car is entering the roadway in the wrong direction.

If you want to learn more about wrong way wrecks and countermeasures, please read this technical report from Scott Cooner at the Texas Transportation Institute. I have read countless articles and reports on wrong-way drivers, and this report is the most thorough.

Originally posted at InjuryBoard by Brooks Schuelke

Learn From D Magazine’s Story of a $25,000 Fender Bender

Brooks Schuelke — Thu, 30 Jul 2009 21:33:53 GMT

A lot of my fellow trial lawyers are up in arms over a recent D magazine article purporting to tell the story of a claim and lawsuit after the author was involved in a "minor car accident." The article is the author's criticism of the civil justice system after he hit someone and was sued. While the article is completely one-sided, I think there are things that we can all take from it.

First I want to address the defendant's claims about the plaintiff’s injuries. The author mocks the plaintiff’s "soft tissue" injuries when he simply "nudged" another car and neither car had any significant damage. I don’t mind the author believing that. Insurance companies have been amazingly successful at marketing this theory to people (even creating LIST (low impact soft tissue) and MIST (minor impact soft tissue) acronyms to help people remember). I don't really have a gripe with the author for being duped by insurance company's propaganda.

But it’s just wrong. Most of the recent literature finds that there is no relationship between vehicle damage and injury. (Drs. Centeno, Freeman and Elkins, A Review of The Literature Refuting the Concept of Minor Impact Soft Tissue Injury, Pain Resource Management, Summer 2005; Robbins, Lack of Relationship Between Vehicle Damage And Occupant Injury, SAE 970494). Don't forget, a person can herniate a disc by something as simple as sneezing. And the literature also shows that these soft tissue injuries are real. Even without broken bones or something that shows up on x-rays, much of the recent literature finds that 15-40% of patients with neck pain after a car wreck develop chronic, life-long pain. (Drs. Schofferman, Bogduk, and Slosar, Chronic Whiplash and Whiplash Associated Disorders: An Evidence-Based Approach, Journal of the American Academy of Orthopaedic Surgeons, Oct. 2007.)

But I don’t want to get into a fight about the science; I want to talk about what we can learn from the process.

First, and many plaintiff's lawyer may not be happy with me saying this, but there is some truth to the story. I don’t know if the parties involved were in a scam, but there are far too many chiropractors and lawyers working together to "manufacture" claims. I’ve written on this practice numerous times, and I hope everyone can learn from the article to avoid the scheme. If you’re in a wreck, and you get a call from someone that’s going to help "refer you to medical care," then run. Do not pass Go, and do not collect $200.00. Protect yourself and avoid these types of scams. Get a reputable lawyer; get someone you can trust. Fortunately, the Texas Trial Lawyers Association lobbied hard last session to get legislation passed limiting barratry so maybe there will be relief in sight.

Having said that, the author doesn’t take any responsibility for the conduct of his insurance company or his lawyer. It appears that the plaintiff incurred $5,200 in bills for the medical care he received as a result of the wreck. At a mediation, the insurance company offered $500.00 to settle the case. This type of offer forces the case to go to trial. One of my favorite mediators in town says that as a plaintiff, the best offer you can get is $0 or the equivalent of $0 (like in this case) because then you know you have to try the case. There are no hard questions about settling.

In this case, that $500 offer from the insurance company forced the case to trial. The author concludes "my lawyer cost the insurance company $11,875 (95 hours at $125 per hour), and a couple of shady medical clinics got $5,300. The case occupied the Dallas County court and staff intermittently for two and a half years, and six jurors missed two days of work." And he is blaming the plaintiff. Take some responsibility. That $500 offer at the mediation from the insurance company forced the trial. The insurance company offer (and insurance companies systematically make offers in cases like this) cost themselves the attorneys’ fees and cost the County court and staff time.

I know you're thinking, "but with those shady medical setups, that $500 was reasonable." Well, the jury didn’t think so. The jury awarded the plaintiff the full amount of his medical expenses, plus a little more. When we evaluate settlement offers, we always evaluate them against what we think a jury would do. In this case, the jury thought the $500 was wrong. The adjuster got it wrong. If the adjuster had offered a more reasonable amount, I’m confident the lawyer would have stopped beating his chest and the case would have settled.

The author also didn’t seem to understand another of the jury’s decisions. In Texas, claims must be brought before the statute of limitations expires. In addition to filing suit before limitations expires, you need to either have the defendant served before the statute expires or show that you were diligent about serving the citation. In this case, the defendant argued (and probably rightfully so) that the plaintiff wasn’t diligent in serving the citation. But the jury found diligence. Again, the author takes no responsibility, claiming that the jury didn’t understand the issue. But again, it’s his lawyer’s job to make sure the jury understands the issue. If the lawyer didn’t properly explain the charge to the jury, he has no one but himself to blame.

And I think we can also learn about framing a story. When the author told the lawyer that they had lost, the lawyer responded, "We lost but we won...The guy wanted $25,000 and got pocket change." Notice the lawyer didn’t say, "The insurance company wanted to pay $500, but paid $5,990 (and over $11,000 to me) instead." It’s all about how you frame the story.

What I'm waiting for is to hear from D magazine (or maybe some of you) the stories where the plaintiffs were injured and they had to endure ridiculous, frivolous defenses or claims from the defendants. Unlike the sitaution in this case, those frivolous defenses seem to be prevalent in my practice.

Originally posted at InjuryBoard by Brooks Schuelke

Is The Dallas North Tollway Doing Enough To Stop Deadly Wrong-Way Wrecks?

Brooks Schuelke — Tue, 28 Jul 2009 10:58:28 GMT

If you’ve been reading this blog, you know that the Dallas North Tollway has been the site of numerous deadly wrong-way wrecks in the last few months. As I reported yesterday, earlier this month the North Texas Toll Authority announced that they were making some changes to help reduce those dangers. But are those changes enough?

The changes include the addition of raised reflective pavement markers at each of the tollway’s 47 exit ramps. The raised markers will reflect red when drivers approach from the wrong direction. The tollway is also installing 25 "wrong way" and "do not enter" signs along the tollway.

While I applaud the action, these changes don’t go far enough. The biggest cause of wrong-way wrecks appears to be intoxicated drivers, with confused, elderly drivers a distant second. While the NTTA’s modifications might help an elderly driver, they do nothing to help with wrecks caused by intoxicated drivers.

It’s my opinion that once the driver has become impaired, it’s too late to rely on warnings to try and stop the driver from driving the wrong way. You can have signs two or three feet off the ground, reflective or flashing lights, blinking signs, or whatever you want to try. Once the driver is impaired, NTTA is not going to be able to put up a warning sign of any type that’s going to be able to get the driver’s attention.

Assuming that’s true, what can be done to prevent these wrecks? We’ll look at that over the next couple of days.

Also, one criticism or question that I have heard people ask in the wake of the current rash of wrong-way drivers on the tollway is "what responsibility does NTTA have since the wrecks are being caused by these drunk drivers?" And my response is that "clearly, there is something wrong here." While drunk driving and wrong-way drivers are a problem all over the country, I’m not aware of any roadway in the country with as many deadly wrong-way wrecks as the Dallas North Tollway. Texas is a big state, and from the little reading I’ve done, there are as many, or almost as many, deadly wrong-way wrecks on the Dallas North Tollway in the last year than the rest of the state combined. Something is clearly wrong. Whether it’s poor on-ramps or some other reason, I’m not yet sure. But something is clearly wrong, and the NTTA has a responsibility to try and figure out what it is and to try and resolve it.

Originally posted at InjuryBoard by Brooks Schuelke

Wrong Way Wrecks Are Still A Problem

Brooks Schuelke — Mon, 27 Jul 2009 10:50:52 GMT

Last month, I posted about the rash of wrong-way drivers on the Dalls Parkway. Unfortunately, it's still a problem. Just this weekend, eight people were killed in a wrong-way crash in New York.

At this point, those of us that are taken aback at the problem have written about it extensively, including:

I've tried to find some tips describing ways that we might minimize the risk that we're hit by wrong-way drivers or (ghost drivers) without much luck. Perhaps the most important thing that drivers can do is to be aware that most of these accidents occur at night and involve drivers that are drunk or have been using drugs.

The best solution for these problems seems to be in the better design of roadways and signage. Fortunately, that's happening in some of the worst places. For example, the Dallas North Tollway is adding more "wrong way" and "do not enter" signs on roadways and putting more reflective material on the road to direct proper direction of traffic in an effort to minimize this problem.

Originally posted at InjuryBoard by Brooks Schuelke

Government Covers Up Research Showing Link Between Cell Phones And Auto Accidents

Brooks Schuelke — Tue, 21 Jul 2009 14:29:52 GMT

The New York Times wrote that two public interest groups had obtained documents from the National Highway Traffic Safety Administration that show the link between cell phone usage and auto accidents. The documents and a requested study of 10,000 drivers were all shelved because the NHTSA was more worried about politics than the safety of our drivers.

Shockingly, the research found that a motorist talking on a cell phone was four times as likely to be involved in a crash as other drivers, and are as likely to cause an accident as someone with a .08 blood alcohol content.

And using hands-free devices didn’t help much. . In fact, the agency had prepared a letter to the governors of each state warning them of the dangers of even using hands-free devices.

Having said all the above, there's nothing really new. People know the dangers of driving while talking on the phone, and yet people do it all the time. I just hope that more information like this gets out and that we don't have to wait for more deaths before this practice is curbed.

Kids Drowning

Brooks Schuelke — Tue, 14 Jul 2009 21:37:17 GMT

Water, Water, Everywhere

A day at the pool, a swim at the beach, a soak in the tub: these are all relaxing thoughts. However, these things all have one thing in common; they can be deadly for children. According to a 2008 Consumer Product Safety Commission press release, drowning is now the #1 cause of accidental child death. Unfortunately, it will most likely stay at top for 2009 . Already 60 children have died in Texas alone from drowning this year. The 2008 total for Texas was 82, which was the highest ever recorded. With half a year remaining on the calendar and two of those months being summer months, it’s a reality check that proves child drowning needs more attention.

Kids Can be Their Own Floatation Devices : There is a new trend on the rise that could drastically reduce the number of child-drowning accidents. While this “trend” has been around for quite sometime, many people have never even heard of it. The technique is simple, just float. Infants as young as 6 months are now being taught how to survive in water by rolling over and floating on their backs. Children that are old enough to walk can be taught how to swim and then float when needed (for air or rest) until they are able to reach safety.

Unlike the swimming lessons most of us had as kids, these lessons focus on teaching the child to instinctively roll over if they fall into the water. While knowing how to swim can help a child survive, knowing how to float can add valuable time onto their chances for survival. Floating buys more time for the child to be found and rescued.

The vast amount of online video footage that demonstrates these techniques is incredible:

http://www.youtube.com/watch?v=fwvv5IyPkXM&feature=player_embedded

http://www.youtube.com/watch?v=rWIwWpxkus0

Children and infants don’t always enjoy learning this technique but it is one that could save their lives. Parents need to give their children the ability to save their own lives in such situations, rather than expecting themselves or someone else to rescue the child before drowning occurs. To find an instructor near you, visit InfantSwim.

Teaching your child to float or teaching them the swim-float-swim sequence does not prevent drowning. It is still important to remain overly cautious when it comes to children and water. Children can drown in as little as one inch of water. Also, even children that are the best swimmers are not immune from the dangers of drowning. Keep the following points in mind to reduce your child’s chances of drowning:

Missing Child: Since time is critical, always check nearby pools, lakes, ponds, creeks, or other known areas containing water.
Bathing: Never leave a child unattended. Consider placing the phone next to the tub when bathing your child. Make sure other children in the household are nearby or being supervised so that you don’t have to attend to them during your child’s bath.
Toilets: Toddlers are curious. Toilet lids should be kept closed and childproof safety clips should be installed.
Locks: Keep doors to pools locked.
Gates: Fence your pool in or install a safety gate around the perimeter.

Exercise caution all-year long, not just during the summer months. Children are curious and cannot be expected to understand every risk associated with their behavior. Keep yourself educated and aware. For more information see: Protect Your Child From Drowning and water safety.

Originally posted at InjuryBoard by Brooks Schuelke