Personal Injury Law Round-Up Number 38

Personal Injury Law Roundup Number 38

Thanks for coming back to this week’s personal injury round-up after the short Thanksgiving week. Since it was a busy week, we’ll hop right into it.

Keeping with Eric’s form, we’ll start off with tort reform.

We’ll start with a trio of Texas stories. First, the Dallas Morning News had an article featuring criticism of the Texas Supreme Court, where big business and insurance companies win over 87% of their cases.

Moving on to Houston, a columnist in the Houston Chronicle once again debunks the Stella Awards.

And for the final swing through the Lone Star State, the Boston Globe has a look at the effect of Texas medical malpractice caps. The story looks at a claimant unable to find an attorney following his father’s death and at an anesthesiologist who moved from Maine to San Antonio (a town that already had approx. 200 anesthesiologists) who says the caps were a factor in his move.

Staying with Southern damage caps in med mal cases, the South Florida Lawyers Blog has a post on whether Florida med mal caps have significantly helped decrease premiums for Florida docs.

Moving up the coast, Barry Boughton of Public Citizen writes that New York’s rising medical malpractice rates are not the result of some “medical malpractice crises,” but result from insurers’ own errors.

Also, by now, everyone knows that Mitt Romney has been calling for nationwide damage caps in med mal cases.

The Law and More blog wonders whether Dan Rather’s lawsuit against CBS will be the next poster child for tort reform. And Justinian Lane responds at CorpReform.

Moving to arbitration, Walter Olson at Overlawyered has thoughts on ADR and pre-dispute arbitration contracts. He highlights a letter to the editor in the Wall Street Journal. The letter claims that attorneys are against ADR because avoiding costly litigation means some lawyer is losing money. This is, of course, wrong. As plaintiff’s attorneys working on contingent fees, we want to settle cases early if defendants offer fair settlements, and we support any ADR measure that facilitates that. What we are against is giving up our right to a jury trial via arbitration agreements for the cases where the defendants are unwilling to make fair offers.

On a related note, Stephanie Mencimer has a new article up at Mother Jones magazine looking at mandatory arbitration agreements. And she had this lengthy blog post following it up where she details the story of an arbitrator who appears to be unwilling to abate an arbitration until one of the party returns for serving in Iraq.

And finally, it’s not really tort reform related, but former AG John Ashcroft’s consulting firm gets $52 million to monitor an implant case. (The irony of US Attorney Christopher Christie referring $52 million of work to his old boss in an underlying case involving kick backs and other unethical conduct is evident.) The fee includes a flat fee of $750,000, professional services billed at a rate of up to $895 an hour, and as much as $250,000 a month for expenses. Having been a part of several class action suits, I can’t imagine what kind of first class monitoring $52 million buys you.  Anyway, keep this story in mind the next time you hear people complain about attorneys’ fees in mass tort or class action litigation.

And on to litigation:

The trial stemming from the massive blast at the Texas City British Petroleum plant started this week. One novel issue to watch is whether the plaintiffs can prove BP fraudulently obtained air-quality permits prior to the blast. Such a finding would nullify the state’s caps on exemplary damages. The Houston Chronicle also has a short story on the first day of voir dire.

Texas billionaire Sam Wyly is suing Milberg Weiss and other firms for allegedly dropping some claims and settling others too cheaply in a 2003 settlement of a class action against Computer Associates. (Via the WSJ Law Blog.)

Speaking of class actions, Ford has agreed to settle several rollover class action claims.

Eric Turkewitz at the New York Personal Injury Law Blog posts on the widely publicized Heparin overdose of the Quaid twins. He has a great summary of the story. It also goes to show how some of these tort stories hit close to home. The Quaids are sometimes Austin residents, and the twins’ uncle is a local attorney I consider a friend (we met serving on the same non-profit board several years ago). Our thoughts and prayers are certainly with them in this tragic time.

Almost every major newspaper in the country picked up a story of a Rhode Island hospital that had its third instance this year of a doctor performing brain surgery on the wrong side of the patient’s head. Simply unbelievable. Also check out the Brain Injury News and Information Blog for their report of the story.

The FDA will recommend new warnings for flu drugs Tamiflu and Relenza. There are several sources for this, but the big cite goes to the Consumerist for the title of its story: TAMIFLU AND RELENZA TREAT FLU, BUT MIGHT MAKE YOU CRAZY. The Maryland Accident Law Blog and the DC Med Mal Blog were also on top of the story.

Relating to inappropriate prescriptions, a big story of the week was How Drug Industry Money Affected A Psychiatrist’s Judgment. Kevin MD and Pharmalot also has their views on the story.

And also Kevin MD notes that the standard of care changing every few years is a problem with governmental regulation because the regulation is too slow to keep up.  Perhaps another argument for med mal cases as a way to weed out bad doctors?

Moving away from med mal stories, Ron Miller discusses a 2003 study that addressed the impact of race and poverty on tort awards.

Also on product regulation, James Dorn of the Cato Institute writes on Toxic Toys: Congress Risks Making Things Worse. Dorn’s view is that we should simply let the market protect our children — caveat emptor.

Moving to trucking wrecks, Ken Shigley reports that Diane Feinstein has asked the Federal Motor Carrier Safety Administration to require electronic data recorder black boxes on tractor-trailers.

Also, Ron Miller highlights a potentially helpful reference item in Information That Medical Malpractice Lawyers Can Use.

It was also a big week for news re: photos at trial. Anne Reed at Deliberations points to a study that when jurors are presented with gruesome evidence they are more than five times more likely to convict than a juror not privy to such information. On a related note, USA Today had an article that Sharon Cave, whose daughter was murdered here in Austin, is pushing for juror counseling after seeing the jurors’ reactions to the gruesome photos introduced at the criminal trial that resulted from her daughter’s murder. Presumably, these same issues will apply in numerous personal injury cases.

And not specifically lawsuit related (but it may affect some of our clients), a recent study finds that mirrors can help prevent phantom limb pain.

And a new study in the New England Journal of Medicine reports that CT scans, ever present in litigation, have been linked to cancer. (Via Houston injury lawyer Bob Binstock.)

And a couple of miscellaneous notes.

San Diego lawyer Randy Walton addresses a San Diego Tribune Article that makes serious allegations about a San Diego personal injury firm being a p.i. “mill.”

I can’t turn down a link to multimillion dollar litigation related to the song “Grandma Got Run Over By A Reindeer.”

Federal judge Harold Baer has issued a 129 page decision that includes a lengthy “manifesto” on declining civility in the legal profession.

And Blawg Review 136 is up (or down under) at Australian Peter Black’s Freedom to Differ.

That’s it for this week.

Brooks Schuelke

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

The Baylor Judicial Tort Reform Survey in the News

As you may recall, Baylor Law School professors conducted a survey of the state’s district judges to get their thoughts on frivolous lawsuits, excessive verdicts, and the such.  Two Texas plaintiffs’ lawyers have recently written a commentary based on the article for the San Antonio Express News.  TLR attorney Lee Parsley had his response, and now the plaintiffs’ attorneys have responded.  To see all the action, check out Todd Smith’s Texas Appellate Law Blog.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

The Dangers of Binding Mandatory Arbitration

The brilliant Stephanie Mencimer has a new article entitled Suckers Wanted: How Car Dealers and Other Businesses Are Taking Away Your Right to Sue.  In it, she starts by outlining the problems she had in trying to buy a car without an arbitration agreement.  When she and her husband asked the dealership to remove the arbitration clause, the dealership refused and told them that it was non-negotiable and that no other dealer in the area would sell them a car without a similar provision.  The irony of that position is best set out by the following excerpt from her article:

Mandatory arbitration clauses are so insidious that car dealers actually furiously lobbied Congress to get them banned in their contracts with auto manufacturers. The National Automobile Dealers Association wrote members of Congress in 2000 that if they weren’t outlawed for the dealerships, mandatory binding arbitration clauses would allow “multinational motor vehicle manufacturers…to be able to unilaterally deny small business automobile and truck dealers rights under state laws that are designed to bring equity to the relationship between manufacturers and dealers.” Congress agreed and passed legislation protecting the dealers. Apparently, though, the car dealers didn’t see a problem in using the same sort of underhanded contracts with their own customers. (Some of them may also be forced to use the clauses whether they like it or not. Several major auto manufacturers’ credit divisions have told their dealers that they won’t provide financing to any dealerships that don’t have arbitration clauses in their sales contracts, says Paul Bland, a lawyer and expert on arbitration at the nonprofit law firm Public Justice.)

Hopefully some help is on the way.  Ms. Mencimer does outline a list of potential reforms that might minimize some of the federal arbitration requirements.

Ms. Mencimer also has an interesting blog post relating to a very unique problem with arbitration  As a dispute between a soldier and Daimler/Chrysler financing was getting under way, the soldier was deployed to Iraq.  Under federal law, any litigation between the two parties would be temporarily suspended by federal law until the soldier returned.  But not so with arbitration.  There is a real risk that the arbitration will go forward while the soldier is overseas, leaving the soldier unable to present testimony in support of his claims.

For some of our thoughts on arbitration, check out some previous posts:

  • How Arbitration Steals Your Day In Court
  • Doctors Now Requiring “No Sue” Agreements
  • Arbitration and the Godless Bloodsuckers
  • The Flight From Arbitration
  • Arbitration:  The $27,000 answer?

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

Should Physicians Disclose Gifts From Drug Manufacturers?

The Nov. 1, 2007 issue of the New England Journal of Medicine has an article encouraging federal legislation to require pharmaceutical and medical device companies with more than $100 million in revenue to disclose the amount of money and gifts they give to physicians. The bill, entitled the “Physician Payment Sunshine Act,” is “about letting the sun shine in so that the public can know” about these relationships, according to one of its sponsors, Senator Charles Grassley.

From the article:

Indeed, the nature, extent, and consequences of physicians’ relationships with industry have become one of the most fiercely debated issues in health care today. At the simplest level, such a relationship exists whenever a physician accepts anything from a company whose products or services are related to the practice of medicine. And such interactions are ubiquitous: according to a recent survey, although the frequency and intensity of the ties vary according to physicians’ personal and professional characteristics, virtually all physicians (94%) have some type of relationship with industry.

Most commonly, physicians report receiving food and beverages in the workplace (83%) or being given drug samples by a manufacturer’s representative (78%). More than one third of physicians (35%) receive reimbursement for costs associated with professional meetings or continuing medical education, and more than one quarter (28%) receive payments for consulting, speaking, or enrolling patients in trials.

From a policy perspective, the debate centers on the overall effect of these relationships on patient care. Although most physicians deny that receiving free lunches, subsidized trips, or other gifts from pharmaceutical companies has any effect on their practices, research has shown that physician–industry relationships do influence prescribing behavior.  After all, if these relationships didn’t affect physician behavior in such a way as to increase sales, companies wouldn’t spend $19 billion each year establishing and maintaining them.

Now certainly, there are benefits to these relationships (free samples, increased education, etc) and there are good arguments to be made not to ban them, but could it hurt to have a system that would allow patients to find out whether the physicians that prescribe medication are receiving substantial benefits from the manufacturers of the drugs that they’re prescribing?

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

In Support of Pakistani Lawyers

Jay Harvey, an Austin personal injury lawyer and current president of the Texas Trial Lawyer’s Association, has a letter to the editor in today’s paper supporting the Pakistani lawyers who are standing up for the rule of law.

There have been demonstrations all over the country in support of the lawyers, including demonstrations in New York and Washington D.C., but the response here has been a bit disappointing.  It is one thing for those of us in the law to pat ourselves on the back saying that we do what we do, in many instances, to help people.  But to demonstrate, knowing that you are likely to be arrested, be separated from your family, and even be tortured, is quite another commitment.  And yet, little has been heard about it from the Texas bar.  One of the few things that I have heard is a story from the Tex Parte blog talking about the personal effect this issue has had on one Dallas lawyer.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

Tort Reform in The ER

Several states, including Texas, have special laws protecting emergency room physicians from medical malpractice litigation.  These protections may include higher burden of proof on the plaintiff or a different standard of care (for example, providing only liability when there is gross negligence). Last week, the Torts Prof Blog outlined an interesting medical malpractice reform proposal being championed by law professor Jeffrey O’Connell.

Under the proposal, emergency room physicians would receive the benefit of a higher burden of proof and lower standard of care, but only after they made a qualifying early offer to the plaintiff.  The doctor would get a set number of days to offer to pay for all economic damages (but not pain and suffering damages) and a reasonable attorneys’ fees (perhaps 10% of the recovery).  If the physician makes the offer and the plaintiff does not accept it, then the physician is entitled to the higher burden of proof.  If the physician makes no offer, then traditional rules apply.

These types of limits are not without precedence.  Under the Texas Deceptive Trade Practices Act, defendants are given a set period of time to make a reasonable offer, and if that offer is rejected then the defendant is entitled to statutory protections.  Similarly, under the  Texas Residential Construction Liability Act, homebuilders and remodelers are afforded statutory protections (such as caps on recovery) if they make a reasonable offer within a set timeframe and that offer is rejected.

If you are at all interested in this concept, we really encourage you to click on the link to the post on the Torts Prof Blog, because the post there has links to other articles with more information.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

Personal Injury Subrogation In The News

We’ve previously written about the problems of personal injury subrogation and ERISA subrogation. Now, a Minneapolis television station has run a story outlining the problems that a husband has encountered surrounding subrogation in the medical malpractice context.

There are two things that are interesting about the story. First, it’s a good background on subgrogation. The story gives the uninformed a good idea for the flavor of the issues surrounding subrogation claims. But the case itself may not be a great example of subrogation abuse. The story says that the insurance company substantially reduced its subrogation interest. But, because the individual is not allowed to disclose the terms of the settlement, we don’t know what percent of the recovery the insurance company is seeking.

I do know, in Texas, there are certainly good examples of insurance companies attempting to take entire recoveries leaving personal injury victims with nothing. Unfortunately, it seems with each passing decision from the Texas Supreme Court or the U.S. Fifth Circuit Court of Appeals it’s easier and easier for insurance companies to keep your money.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

Be Careful What You Ask For

There is a long line of politicians who vote for various tort reform measures only to need to turn to the tort system themselves.  The latest is Florida Republican Stephen Wise, a strong supporter of reform of medical malpractice and nursing home litigation.  According to the Florida Times Union:

As a state representative and senator representing North Florida since 1998, he consistently has fought against trial lawyers and for medical malpractice reform. He repeatedly has voted for measures that make it tougher for people to take medical institutions to court – and to limit the amount of potential damages if they end up there. In particular, he has focused on nursing homes. In 2004, the Times-Union asked all the local candidates to name their top three issues. Wise said his were education, constitutional amendment reform and nursing home reform.

Now comes word that Senator Wise’s wife has filed suit against a Jacksonville, Florida nursing home following the death of her father.  And apparently, the perspective of plaintiff has changed Senator Wise’s outlook:

You don’t want people suing for goofy things,” Stephen Wise said. “But if a loved one isn’t taken care of, then I think there should be consequences. … There has to be a balance.”

I reminded Wise that in 2003 Jim King, then the state Senate president, was skewered by fellow Republicans for trying to find a balance. At the time, Wise disagreed with King and pushed for lower caps. Today?

“You go back and say he probably had a lot of wisdom,” Wise said. “It’s tough.”

While we don’t wish ill will on anyone, we do believe that any time a tort reform supporter has the opportunity to look through the eyes of a plaintiff, then it increases the chance that a just tort system can continue.

Thanks to Orlando personal injury lawyer Ed Normand for the link.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

Progressive Gainsharing

We recently received a link to the Progressive Gainsharing program.  Under the program, Progressive Insurance employees receive bonuses based on how well the company does.  That’s not a problem for many industries, but it is a problem in insurance if adjusters receive monetary incentives to deny claims.

Perhaps we should give Progressive some credit for making this information public.  It’s not really a surprise that such a program exists; there has been widespread speculation that such programs exist in many insurance companies (and in some cases, the ultimate discovery and documentation of those programs has proven very helpful to establish bad faith conduct on the part of the insurance companies).  The real surprise is that Progressive would be so forthcoming in advertising the existence of the program.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

Medical Malpractice and “Defensive” Medicine

An anonymous Texas ER doc has a blog post discussing the medical malpractice story of Christopher Jones. Mr. Jones, 33, arrived at a Los Angeles area emergency room complaining of chest pains, where he was told to sit down and wait his turn. After more than three hours, he got up, walked outside, collapsed and died of a heart attack.

The post has some great thoughts on the necessity of so-called defensive medicine. However, some of the comments, apparently from other physicians, are quite chilling.

Thanks to the New York Personal Injury Law Blog for the link.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

Schuelke Law maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke

Law Firm Website by CLM Grow