Austin Personal Injury Lawyer - Miscellaneous

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

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

Why Are Unprotected Pool Drains Still Threatening Our Children?

Brooks Schuelke — Tue, 14 Jul 2009 21:33:47 GMT

Why Are Unprotected Pool Drains Still Threatening Our Children?

Swimming pools across the country continue to house a silent killer, illegal pool drains. Since 1990, the U.S. Consumer Product Safety Commission has reported 83 entrapment incidents. The Virginia Graham Baker Pool and Spa Safety Act took effect December 19, 2007. The law requires all public pools and spas, including those in hotels, apartments, and residential communities, to be fitted with domed drain covers. Older drains generate a strong suction that can result in body entrapment and leads to scarring, limb damage, paralysis, or even worse, death. It is now 2009 and despite these risks many pools that are subject to the law still don't comply. You can watch one of many videos about this at CNN.

The excuses for non-compliance are wide ranging but none of them outweigh the dangers. Two public pools in the Tampa, Florida area have closed indefinitely because they are unable to pay for the changes that would be required to accommodate the new drains. Others pass the buck, blaming manufacturers because the models they requested are on back order.

http://www.youtube.com/watch?v=QmaOUwg-d6Y

So, how are these pools getting through the drain when it comes to abiding the law? There are several factors that contribute to this problem:

1-Enforcement Problems: Each state enforces the federal law differently. While the Consumer Product and Safety Commission is the agency that oversees the law, it is very small and thus relies on the state to carry out enforcement. Some state public health and safety departments are more lenient than others. For example, in Florida there are still approximately 7,000 public pools that don’t comply with the law. A National Pool Safety Council spokesperson stated that his understanding is that Florida officials are not even enforcing the federal law. For a state that has more pools than most, this is a scary realization. State health department inspectors usually only enforce state code and in Florida, they have never shut down a pool due to a federal violation.

2-Lack of Funding: State health departments criticize the creators of the law b/c there is practically no federal enforcement. Also, in light of recent state budget cuts and salary reductions, there is not much leverage for requiring employees to enforce more and more federal regulations.

3-No Penalty: The penalty for failing to comply with the law has yet to be determined. Perhaps this is why many state departments are not motivated to enforce the law. Without punishment, penalties, or consequences there will be no reason for compliance aside from morality.

How to Protect Your Kids:

Don't swim at pools that fail to meet the federal requirements.
Before becoming a member of a pool, find out if the drain(s) has been changed and whether safety measures for the new drain have been met
Educate yourself as to whether the drain on your own home pool or hot tub is safe. It is important to change drain covers every few years. If your kids swim at a friend's house, ask them about their drain. See examples of safe and unsafe drain covers.
PTO/PTA meetings are a great way to reach many families and to inform other parents about potential dangers lurking in their. Bring an example of the type drain pools and spas should have.

You can learn more about the Federal Pool and Spa Safety Act here.

Originally posted at InjuryBoard by Brooks Schuelke

What Do You Mean Medicare Is Holding Up My Car Wreck Settlement?

Brooks Schuelke — Tue, 09 Jun 2009 12:21:06 GMT

All too often, I have to tell a client, "yes, your case has settled, but don't expect the money for several months." Why? Because of Medicare.

Medicare has a subrogation interest, meaning that clients have to use settlement funds to reimburse Medicare for the payments (or a portion of the payments) that Medicare made for the clients' medical care. That's not that unusual; most insurance companies have similar provisions. But Medicare is especially difficult to deal with. They are underfunded and understaffed, and it can literally take months (and sometimes even years) to get them to tell us how much the client owes. Then we have to spend more time going over the claim to make sure the amount Medicare requests only includes care related to the wreck or accident, and then we have to spend more time negotiating a final payment amount. And while you would think that Medicare and the federal government would want to rush to take our payments, that's not the case.

So if you are a potential client and have Medicare, please understand that we'll work hard to get your case resolved (whether through settlement or trial), but that won't be the end of the waiting game.

And for the record, this entire post has been done while I was on hold with Medicare.

Originally posted at InjuryBoard by Brooks Schuelke

More Tort Reform Heroes

Brooks Schuelke — Fri, 08 May 2009 17:12:17 GMT

Yesterday I wrote about the exploits of Dr. Robert Zaleksi, one of the faces of the famous West Virginia doctor strike. But Dr. Zaleski is not alone in his hypocrisy. A lot of the hyprocisy was present during Dr. Zaleski's walkout.

After the Bush Administration kicked off its war on trial lawyers, Congressional Republicans started holding hearings on the medical malpractice crises. West Viriginia Representative Shelley Moore Capito proudly introduced Dr. Samuel Roberts to testify that the problems he was having with excessive malpractice insurance might force him to leave the practice. Somehow, Dr. Roberts forgot to tell the committee that in 1987 he had pleaded guilty to five counts of cocaine possession and was sentenced to five years' probation.

During the same strike, Dr. Rajai Khoury was quoted on television as saying "we're hurting, our patients are hurting, the community is suffering." Dr. Khoury forgot to mention that, despite being sued several times, he lived in a 12,000 square foot, five car garage home. I'm not sure of Dr. Khoury's definition of "hurting," but that doesn't meet mine.

Even the organizers of the strike weren't immune to the lies and half-truths. The West Virginia Medical Society held a rally and set out 37 chairs to represent doctors who supposedly were forced out of practice because of insurance costs. A local reporter, however, actually did an investigation of the allegations and found that at least two of the doctors weren't practicing, not because of insurance, but because they were dead.

These stories rarely come to light in the popular press, but they're well-chronicled in Stephanie Mencimer's book, Blocking the Courthouse Door, which I encourage everyone to read. It's one of the few books that really looks into the stories and shows the real truth (or lack thereof) behind tort reform.

Originally posted at InjuryBoard by Brooks Schuelke

Tort Reform Heroes: Dr. Robert Zaleski

Brooks Schuelke — Thu, 07 May 2009 18:21:12 GMT

One of my favorite books is Stephanie Mencimer's Blocking the Courthouse Door --- How the Republican Party and Its Corporate Allies Are Taking Away Your Right To Sue. It's not one of my favorites just because Stephanie features one of our cases in the book; instead, it's one of my favorites because she does what few who write on tort reform actually do --- research the subject. Too often, we see journalists who are all too willing to write about cases that don't actually exist or are taken out of context. But Stephanie does a great job of actually looking at the substance of the issues.

In one chapter of her book, Stephanie writes about today's "tort reform hero," Dr. Robert Zaleski.

If you have watched the tort reform debate, you might remember an uproar in 2003 when West Virginia doctors walked off the job to protest high malpractice insurance rates. One of the key doctors was Dr. Robert Zaleski. Dr. Zaleski became one of the stars of the movement, showing up on talk shows, CNN, and in the New York Times Magazine. Dr. Zaleski was even invited to attend a speech that President Bush gave in Scranton, Pennsylvania, where he talked about out of control lawsuits threatening patient care.

But Stephanie thinks she found why Dr. Zaleski's malpractice premiums might have been so high. It turns out that in a six year period, Dr. Zaleski had been sued fourteen times, with eight of the cases settling for total payouts of $1.7 million. And in one deposition, Dr. Zaleski admitted that he was addicted to pain medication for a substantial part of the time he was operating on people in the early 1980s. There were also allegations that in order to feed his drug habit, Dr. Zaleski wrote prescriptions for other drug addicts, who allegedly filled them and then kicked back some of the profits to the doctor.

Unfortunately, at the time, no journalists were willing to do the research on the Dr. Zaleskis of the world, and these tort reform heroes and their half-truth stories were able to start the tort reform train running.

Over the next few weeks, I'll look at other issues of tort reform and the half-truths behind them.

Originally posted at InjuryBoard by Brooks Schuelke

The NYT Slams Insurance Company "Independent" Medical Exams

Brooks Schuelke — Thu, 02 Apr 2009 13:47:05 GMT

An increasing issue in personal injury litigation is insurance companies' use of hired guns to give opinions that our clients aren't hurt. Sometimes the hired guns simply review the medical records and then give opinions that despite the evidence in the records our clients aren't hurt as bad as the clients say, and sometimes the insurance companies ask for an opportunity to have our clients examined by their own hired gun doctors so the hired guns can then testify that our clients aren't really hurt. Insurance companies and defense lawyers try to hide the nature of these exams by calling them "independent medical exams." But that name borders on fraud; there's nothing independent about these exams. Unlike treating physicians, whose primary responsibility is trying to make sure the patient heals, the sole purpose of these hired guns is to minimize payments to injured persons.

For a long time, those of us that practice personal injury law have known the true nature of these exams, but the exams haven't received a lot of press. Maybe the tide is turning. Monday's issue of the New York Times had a great expose on the use of "independent" medical exams to reduce payments due New York worker's compensation claimants. The Times reviewed several cases and interviewed doctors involved in the process, and the results would probably shock people not used to dealing with this on an everyday basis.

While I won't set out the full article, part of the Times' research compared videotapes of the exams with the eventual reports that were created. They noted time and time again where "independent" doctors noted on the videotapes that the victims were injured only to have reports show up saying the victim's injuries were exaggerated.

The practice was criticized by all involved. The new interim medical director for the NY worker's compensation board, a respected physician at Mt Sinai Medical Center, stated:

You go in and sit there for a few minutes -- and out comes a six-page detailed exam that he never did. There are some noble things you can do in medicine without treating. This ain't one of them.

Another doctor involved in the process used to certify these physicians noted:

Basically, if you haven't murdered anyone and you have a medical license, you get certified. It's clearly a nice way to semiretire.

And clearly, if the physicians provide opinions adverse to the insurance companies, they know that they won't be hired again. It's part of the game. Dr. Hershel Samuels, one of the physicians the subject of the expose, stated:

If you did a truly pure report, you'd be out on your ears and the insurers wouldn't pay for it. You have to give them what they want, or you're in Florida. That's the game, baby.

While the article focused on the New York worker's comp system, the same problems exist here in Texas personal injury circles. The doctors are hired, and they all know the rules of the game. Too many findings that victims are injured, and they're not hired again.

Sometimes, the problem goes even further. I recently deposed a doctor who was hired by a defendant through a third party firm. The defendant hired the third party and then the third party hired the doc. The doc prepared a long report after a quick review of my client's records, and a major part of the report was a criticism of the charges from each of my client's medical providers. At the deposition, the doctor admitted that he didn't have a clue about the charges, but that the company that hired him had filled in that part of the report for him.

So what's the remedy? First, the New York Times article noted that the best defense is attempting to videotape the exams. When our clients are referred to these defense exams, we push to have them videotaped. The video is the best way to keep the doctors honest in these situations.

The next remedy is collaboration. One of the biggest benefits of the Texas Trial Lawyer's Association, our state-wide group of lawyers who regularly represent plaintiffs, is the ability to collaborate with one another. If my client is referred to an IME doc, I can request information from lawyers around the state. We may be able to get copies of other reports, depositions, etc. You'd be surprised how many docs prepare reports for different patients that are identical to one another. When you hire a personal injury attorney, I strongly urge you to ask the attorney whether they're active members of TTLA. That collaboration is important.

I encourage you to read the article and leave your thoughts.

Originally posted at InjuryBoard by Brooks Schuelke

New Methods For Jurors To Avoid Judges' Instructions

Brooks Schuelke — Thu, 19 Mar 2009 11:56:40 GMT

While I was in law school, I received a call from my mom, and she started asking me about the elements of a criminal assault case in Texas. I don’t know about all of you, but this was not the question I expected from my mom (I might expect the call from some other family members, but not my mom). I asked her why she wanted to know, and she replied, "I have jury duty, and we’re trying to decide whether to convict the defendant."

"Didn’t you get an instruction not to talk to anyone about the case?" "Yeah," she replied, "but I didn’t think that applied to you."

And that’s how it goes. Despite judges’ best attempts to instruct jurors not to look to evidence outside the case, jurors have always found a way to do it. But now, with the internet and smart phones, it seems that ignoring judicial instructions is becoming too easy. Yesterday’s New York Times discussed the trend of "Google mistrials" that are sweeping the nation, creating a firestorm in the last two weeks.

Last week, a mistrial was granted during the middle of an eight week federal drug trial in Florida after nine of the twelve jurors admitted to using the internet to do research on the case. Also last week, a defendant in a lawsuit said it plans to appeal a $12.6 million verdict rendered against it after a juror used Twitter to send updates during the trial. And this week, defense lawyers for former Pennsylvania state senator Vincent Fumo asked that a guilty verdict be thrown out after one of the jurors in that case used Twitter and Facebook to send updates.

So the question is, "where do we go from here?" In my opinion, there are two separate issues. The jurors using Twittering and the Facebook don’t really concern me that much. In most cases, we’re talking about 6 or 12 jurors on the eventual jury. It shouldn’t be difficult for the court or the lawyers involved with cases to monitor the Facebook or Twitter pages of 6-12 people during the course of the trial. And I suspect that if the judge gives the jurors an instruction not to use Facebook or Twitter and also tells the jurors that court personnel will be monitoring their accounts to make sure the jurors are following the instruction, that the number of posts or tweets will drop off dramatically. Now, there might be some jurors with anonymous accounts that are hard to find, but I think those would be a very small minority.

The bigger concern for me is the potential for jurors to perform internet research. There’s just no way to police jurors and stop internet research. I think the best judges can do is to instruct the jurors about the problems and then just hope for the best.

On the other side of the ball, the lawyers involved have to know that the jurors could potentially be researching the case via Google. That probably means we’ll have to have some other considerations in the way we try the cases. I’m not sure what form that would take, but at a minimum, we need to have staff members perform popular searches about the parties and the case so that at least we know what’s available to the prospective jurors.

I'd love to hear your thoughts on the matter. You can leave a long comment here, or send a short note to me via Twitter (@bschuelke).

Originally posted at InjuryBoard by Brooks Schuelke

Maybe Personal Injury Victims Shouldn't Try To Settle Their Own Claims

Brooks Schuelke — Mon, 09 Mar 2009 18:19:18 GMT

It's not unusual for an injured person to try and settle his own claim before hiring a lawyer. Perhaps this will make them think twice. Today I received a two letters from an acquaintance of mine, another lawyer in town. The first letter was dated Nov. 12, 2007 from a Farmers adjuster directly to the client. In that letter, Farmers offered to settle the claim for $3,378.57. The second was a letter to the lawyer, dated March 3, 2009, confirming that the claim settled, after the victim hired a lawyer, for $200,000.00.

Now obviously, lawyers can't make a difference like that in every case, but in most cases, it's well worth the time and expense to hire a lawyer. And if it isn't worth it, I'll be the first one to tell a potential client that they could probably do better without me by settling it on their own.

But by and large, insurance companies need to know that the injured person has a lawyer and that the lawyer is willing to take the case forward. I have my own example of this from last month. I had a client that was represented by a lawyer from out-of-state. Apparently the adjuster didn't think the lawyer was serious about pursuing the claim, and the adjuster wouldn't offer a fair value. As the statute of limitations approached, the out-of-state lawyer referred the case to me, and I filed suit. On the Friday before the trial, the case settled for about four times the amount the adjuster had offered the first lawyer.

If you have a claim, it's important that the insurance companies know that you're willing to take the time to pursue it fully. If you're trying to represent yourself or you have a lawyer that the insurance company doesn't think will pursue the claim, you probably won't get a fair recovery.

Originally posted at InjuryBoard by Brooks Schuelke

George Will and "Litigation Nation" Got It Wrong

Brooks Schuelke — Tue, 13 Jan 2009 09:41:00 GMT

Even though he and I don’t agree politically, I generally like George Will. In fact, I even did a school report on his book, The Morning After. But his agreement in Sunday’s piece Litigation Nation, agreeing with Phillip Howard’s Life Without Lawyers: Liberating Americans From Too Much Law, is wrong.

In a utopian society, maybe those of us that represent plaintiffs in personal injury or commercial litigation cases might not be needed. But this isn’t a utopian society. This is a country where:

1. 100,000 Americans die each year from medical errors, and we lose $100 billion due to prescription errors;

2. Tens of thousands of Americans die annually in alcohol-impaired driving crashes and drivers engage in other dangerous activities such as texting while driving;

3. Accountants, trust officers, attorneys and other fiduciaries continue to steal money from their clients; and

4. Pharmaceutical companies continue to commit fraud.

I would think that in the age of Enron, Worldcom, stories of widespread mortgage fraud, and Bernie Madoff, people would be running away from a system of caveat emptor; not running toward it. The sad fact is that this country needs lawyers and the civil justice system. It is no coincidence that James Madison said, "Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."

Now, are there frivolous lawsuits that shouldn’t be brought? Sure. But there are also frivolous defense — when defendants or their insurers assert ridiculous defenses to try and avoid paying legitimate claims. Both are byproducts of a critical system, and the system allows judges to sanction those claims if the judges hearing the cases are willing to do so.

And are there overreactions with ridiculous warnings or rules trying to limit suits? Sure (who doesn't think that a products claim brought by someone swallowing a fishhook wouldn't be thrown out?). But don't throw the baby out with the bathwater. Fault doesn't necessarily lie with the civil justice system, but with those assigned with trying to figure out how to respond to claims. While the school officials at Broward County chose to ban running at recess (as Will mentions), there are thousands of schools across the country where children are allowed to run free and play on fully functioning playgrounds during recess. Is a bone-headed decision by a school district an indictment of the civil justice system or of the school district making the decision?

I’ll also add that readers should be cautious about reading stories, such as Will's, based on anecdotes alone. In my experience, there are always two sides to an anecdote or even instances where the anecdote never happened (see the common Stella Awards). For instance, Will mentions a seemingly frivolous lawsuit that was settled for $90,000.00. I don’t find a lot of defendants throwing $90,000.00 at frivolous claims. Will also mentions a claim by a child that broke his leg sliding down a slide head-first. Frankly, I’m not sure how that could happen absent some additional facts that might explain why a claim was made.

For an in depth look at Will's anecdote of a supposed run-a-way jury, read Maxwell Kennerly's blog post.

Originally posted at InjuryBoard by Brooks Schuelke