Personal Injury Law Round-Up #64

lasso imageThis week, Chris Robinette and Bill Childs over at Torts Prof both posted their list of blogs that they regularly read. I’m happy to be in both of their lists. And it looks like Chris has a bit of catching up to do. By my count, he’s over twenty-five blogs behind Bill (and now I wonder how he has time to teach).

We’ll start off with the tort “reform” news…

Starting with Texas, Dallas attorney Barry Barnett has an interesting opinion that the Texas Supreme Court is conducting its own tort reform by eroding the rights of juries.

After being rejected by his constituents, Joe Nixon continues to spread his gospel on tort “reform”. I’m sure most of you have seen his report from the Texas Public Policy Foundation Center for Economic Freedom but probably not everyone has seen the outstanding article from the Tyler, Texas Morning Telegraph. (The Texas Public Policy Foundation is an Austin conservative “think tank” founded and funded by James Leininger – a Texas businessman who has spent millions of his own money trying to press for school vouchers. Interestingly, it also has employed defeated Texas representative Talmadge Heflin, another tort reformer voted out of office.)

Perhaps Texas can set the example for Oregon. Oregon is seeking reform to better protect government entities. Although a state statute already caps malpractice cases at $200,000 when the state is involved, a recent supreme court ruling in the state has increased governmental liability by allowing employees of state hospitals to be sued.

While Oregon may be concerned about the government, California has its eye on the plastic surgery business. The state is looking to nip/tuck its laws regulating doctors performing cosmetic surgery after the high profile death of the mother of hip-hop star Kanye West. West’s mother died immediately after surgery while getting liposuction and a breast augmentation. Following her death, it was discovered that her surgeon was not board certified. California lawmakers hope to follow in Florida’s footsteps in making patients more aware of their physician’s credentials in order to prevent surgery related injuries and deaths.

Now, on to the litigation news…

It was a good week for Merck, as a Houston court of appeals overturned Lanier’s Ernst Vioxx verdict and a New Jersey Court struck down a Vioxx verdict there. The WSJ blog, among others discusses it.

Relating to the above mentioned plastic surgery field, a Pennsylvania doctor gets hit with a $20.5 million award against him in a case brought as a result of his teen patient’s death during liposuction. Lowell Steiger has his thoughts.

In New York, a mother was awarded $17 million after a c-section gone bad. The hospital cut the connection between her pancreas and bladder during a caesarean delivery. As a result, pancreatic acid and urine filled her cavity and burned through some of her organs. Something tells me the labor contractions were cake compared to that. has hired a new head honcho to handle its litigation. Settlements for its Celebrex and Bextra cases may be in the future.

Now that summer has arrived and we’re all having backyard barbeques and swim parties, you’ve been warned.

A Los Angeles jury awarded a Georgia man $9.7 million in an asbestos suit after he developed mesothelioma as a result of serving as a Navy machinist in Long Beach.

And on to the miscellaneous stories…

John Day has parts 19 and 20 in his How to Be A Great Trial Lawyer series.

And mediation as a reality TV show?

Thanks again for reading, and have a great weekend.

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 Justice Medina Saga Rolls On

The saga of Supreme Court Justice David Medina is almost like a soap opera.  Just when you thought the story couldn’t get more bizarre, it took another twist today.

For those not up to speed, here’s the story in a nutshell.  The home of Texas Supreme Court Justice David Medina and his wife was burned.  After the fire, it was discovered that the Judge and his wife had some financial difficulties, and an arson investigation commenced.  Although the case was presented to a grand jury, it appeared that the prosecutors office didn’t have any real interest in investigating the claim.  But the grand jury did.  And the grand jury later indicted both Judge Medina and his wife.  Almost immediately, the Harris County DA (like Judge Medina, a Republican, and also having his own political trouble) made statements that there wasn’t enough evidence to pursue charges and eventually ended up dismissing the indictment.  The grand jury was so upset that members of the grand jury filed a suit seeking permission to speak about the case and tell the facts to the public.  Then, in recent weeks, the Judge’s wife was re-indicted for arson.  And that’s where the story stood until today.

Today’s Houston Chronicle reports that Houston lawyer Frank Harmon made a call to a Houston bail bondsman and urged the bondsman to bail Justice Medina’s wife out of jail.  The problem?  The attorney just happens to be involved in a major asbestos case sitting at the Supreme Court.  Harmon’s firm helps represent Crown Cork & Seal Co., Inc., the defendant in the suit.

So where will the story go in the future?  Given its past, who knows.

To read my other posts on the story, you can click here, here, here, & here.

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Texas Debates Whether Attorneys Must Disclose Legal Malpractice Insurance Coverage

Today, a Supreme Court of Texas task force is set to vote on a proposal that would require Texas lawyers to disclose to potential clients whether the lawyers carry legal malpractice insurance.  Earlier this week, California took another step to adopting a similar requirement.

As a legal malpractice attorney, I think the proposal is a great idea.  Potential clients have the right to know whether the attorneys they are hiring have the financial ability to make them whole should the attorney make a mistake.  As attorneys, we encourage the public to make sure that their tree trimmers, contractors, mechanics, etc are bonded and insured before they’re hired.  Certainly, clients of attorneys would be interested in the same information.

I also think that the duty to disclose the lack of malpractice insurance may exist due to the Texas Deceptive Trade Practices Act.  A business (including lawyers) violates the DTPA when the business fails to disclose information concerning services which was known at the time of the transaction if the failure to disclose was intended to induce the consumer into a transaction into which the consumer would not have entered had the informaiton been disclosed.  Because insurance is important, I think there’s a potential duty to disclose the lack of insurance under this statute.

However, it is not a slam dunk.  There are several respected commentators that are against these types of rules.  For more information on those positions, you can check out the following:

Personal Injury Law Round Up # 63

The quality of the Personal Injury Law Round-Up should increase round up - 3dramatically because I have a capable law clerk that has arrived on the scene to help me out.

On to tort reform and lawyer-type issues….

Not a tort reform issue per se, but one big issue this week was whether lawyers should have to disclose whether they carry legal malpractice insurance. A task force of the Texas Supreme Court has rejected a proposal that would make it mandatory for lawyers to disclose whether they have malpractice insurance to clients. On the West Coast, California is moving the other way toward a disclosure requirement. I think Texas is going in the wrong direction, and you can read more of my thoughts here. One of the other big tort reform issues also comes out of Texas, and that’s a debate about whether med mal reform is working. Joe Nixon, the state representative most responsible for passing med mal caps, had an editorial extolling the virtues of tort reform in last Saturday’s WSJ entitled “Why Doctors Are Heading to Texas.” At the same time, the Dallas/Fort Worth Fox affiliate ran its own story finding caps didn’t work. My thoughts are in a post from earlier this week. You can find other thoughts on this story from the WSJ Health Blog, Legal Medicine, Overlawyered, and TortDeform.

On to litigation news…

In the med mal arena, Sorry Works! had a good week. For those of you not familiar with this movement, the New York Times has shed some light on a new method of dealing with medical malpractice claims. Doctors may be interested in capping their damages by just saying, “I’m sorry.” Some medical centers have changed their approach to patient claims by “promptly disclosing medical errors and offering earnest apologies and fair compensation,” instead of “deny and defend.” The key is communication rather than concealment. Apparently, the apologies have worked medical miracles as caseloads and legal defense costs have decreased. (I wonder if the hospital gives out hugs, too.) The Injury Board also has some insight on this issue. You can also find more at the ADR Prof Blog, Turkewitz, KevinMD and TortDeform. I’ve also written about it before here. This is of particular interest to Texas readers because I have heard from one state rep that a pseudo “Sorry Works” bill will be filed during the next Texas session.Something tells me that a hug and an apology might not always be sufficient. For instance, a Cincinnati woman was awarded $22.6 million by a jury for her daughter’s brain damage caused by a medical birthing mistake. Staying on the topic of medical liability, military hospitals and physicians may soon be on the hook.

A new bill will allow medical malpractice claims to be brought against the military. You can view the bill here.

Along the lines of malpractice, a Wisconsin man is awarded $3.2 million after losing his left leg. And if you haven’t heard, the family of an injured little league player has filed suit against Louisville Slugger. There are comments all over the blogosphere about this. This may belong in the lawyers behaving badly category, but a Kansas City parachutist has a dispute with her lawyers — they filed her suit and she wants it dismissed, but it’s too late say the lawyers.

Back to Texas, a family filed a lawsuit after their helicopter crashed.

And there’s no lawsuit yet, but probably will be. Prominent advertising personal injury lawyer Brian Loncar was in a wreck with a fire truck late last Friday. He is expected to recover. His Bentley? Not so much.On the pharma front, the FDA is finally stepping up and will start mining more databases for safety problems.

The Maryland Accident Blog had a stunning statistic that should trouble us all: 1 out of every 3 Maryland motorists are text messaging while driving.

The same blog had a link to a story from Today’ saying that the nation’s truckers are seeking permission to use larger trucks on the nation’s highways. Being a border state, Texas, and Austin in particular, should be concerned about this.Speaking of truckers, the GAO released a report this week that described a drug testing system that allows truck drivers to continue driving.

For miscellaneous news…

Since we have all updated from telegram to e-mail, I thought this might be interesting. While on the topic of technology influencing procedure, here are some tips when trying to conduct “e-discovery.” John Day has What It Takes to be a Great Trial Lawyer,” part 17 and part 18. All of you lawyers out there should get a subscription to

“The Jury Expert.” See Anne Reed’s consistently outstanding blog for details. Norm Pattis has a great series of posts on his personal observations of the Fieger trial. Very interesting reading, indeed.

That’s it for this week. Thanks for reading, have a great weekend, and don’t burn anything during the Memorial Day barbecue.

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

A Tale of Two Stories on Texas Medical Malpractice Reform

In the last few days, two stories have circulated about Texas medical malpractice reforms, and each of the stories has drawn wildly differing opinions about the success of the reforms.  Over the weekend, former Texas representative Joe Nixon, one of the primary backers of tort reform, wrote an editorial in the Wall Street Journal describing the unmitigated successes of tort reform.  (Interestingly, Mr. Nixon notes that in 2005, tort reform had become popular with voters.  Tort reform was apparently more popular with voters than Mr. Nixon.  Mr. Nixon resigned his house seat to run for the Texas Senate.  However, Mr. Nixon came in a distant third — receiving approximately 8% of the vote — in the Republican primary for the seat).

Just two days earlier, reporter Paul Adrian, of the Dallas/Fort Worth Fox affiliate, had run a story asking whether medical malpractice reform was necessary and whether it was benefitting Texans.  Adrian concluded that tort reform was not needed and that there wasn’t any significant benefit, unless you happened to be an insurance company.  In reaching these conclusions, Adrian had several discoveries.

In deciding that tort reform wasn’t necessary, Adrian noted several things.  First, Adrian noted that Texas’s average payout for claims was well below the national average.  He then also noted the work of University of Texas law professor Bernard Black who found that, when adjusted for inflation and population growth, there had not been any increase in the number of claims or the average amount of the claims in the years leading up to the reforms.

Adrian did note that malpractice insurance rates had increased significantly, but those increases didn’t likely have anything to do with malpractice litigation.  Adrian noted that in 1995, Texas had tort reform measures that regulated the rates that the carriers could charge.  At that time, carriers were competing fiercely for business and began undercharging.  Once that undercharging stopped, the rates skyrocketed, but not due to any litigation related expenses.

Adrian also had several interesting findings relating to his conclusion that average Texans aren’t benefitting from the reforms.  While medical malpractice claims have decreased, there is little evidence that this is increasing access to doctors.  While it may be true there are more doctors in Texas, the number of doctors in Texas was increasing prior to the reform.  In fact, Adrian quoted law professor Charlie Silver, who noted that the growth rate in doctors has actually slowed since the tort reform legislation was passed.  Adrian also noted that the reforms haven’t affected health insurance rates, another benefit promised when the reforms were debated.

For doctors, Adrian noted that medical malpractice insurance rates have decreased some, but nowhere near the 140+% increases in rates that led up to the reform.

But the real benefit was for insurance companies.  Adrian noted that medical malpractice insurance companies started making money hand over fist.  By 2006, approximately 50 cents on each dollar of premium collected was going to profit.

Adrian concludes:

So did Texans benefit from tort reform?

Doctors, some.

Insurance companies? A lot.

Most Texans probably couldn’t say.

But if you lost your baby after a difficult delivery, tort reform may have taken away your ability to find answers.

Melody Pinsukanjana said, “We’ve lost access to the courts and that’s the biggest frustration I have.”

I urge you to read and watch these two tales, and then consider the source and the data, and make your own conclusions about whether medical malpractice reform is a success.

Related Posts:

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Personal Injury Law Round-Up #62

Things are hopping here as we continue to prepare for a trial so this week’s edition is brief. On tort “reform”…….

One of the big tort “reform” stories of the week has been Dennis Quaid’s testimony on preemption before Congress. Unfortunately, in our society, causes often need celebrities to act as their champions before there is any traction to search for solutions (eg Lance Armstrong and cancer, Bono and extreme world poverty, and Michael J. Fox on Parkinson’s).  It now appears possible that Dennis Quaid is willing and able to step into that role.  You can watch the video of the testimony or read the transcript.  There are numerous posts on the story, including posts at DC Dicta, the Huffington Post, the Pop Tort, the Maryland Injury Lawyer Blog, and theInjuryboard national desk.

Along those same lines, Bill Childs reports that the plaintiff in the Six Flags Kentucky Kingdom severed feet case traveled to Washington to testify on amusement park safety.

And locally, the Texas Supreme Court continues to receive negative press.

On to the litigation news…

In Texas, a federal court holds that the rape case against Halliburton isn’t covered by an arbitration agreement (though the plaintiff’s Title VII claims are).

Staying here in Texas, an appellate court reversed the Garza/Vioxx verdict.  There’s a little more information in Don Cruse’s Supreme Court of Texas Blog, MassTorts, the WSJ law blog and How Appealing.

Staying in the drug arena, Bayer is pulling all remaining Trasylol.

In South Dakota, even Congressmen aren’t immune for causing auto accidents.

On the settlement side, there were more settlements in the Rhode Island nightclub fire. I am most impressed with Eric Turkewitz’s in-depth analysis of the Jet Blue toilet lawsuitand followup.

And for this week’s miscellaneous posts….

John Day has What It Takes To Be A Great Trial Lawyer, part 16.

Thanks for reading and have a good weekend.

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

Tort Reform By Rulemaking

I don’t have time to make a detailed post, but the Washington Post (via the AP) had a great article today about the administration’s use of administrative rulemaking authority to preempt lawsuits.  For those interested in civil justice matters, it is certainly worth a read.

I have a prior post that touches on this form of tort reform.

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Personal Injury Law Round-Up #61

This is a crazy week. We have been swamped getting ready for two jury settings in June. Thankfully one case settled Wednesday literally an hour before a key deposition so now we have adequate time to prepare for the other case. I think we’re all looking forward to trying it — it is a legal malpractice case and I doubt I will ever have a case with better liability facts than this one. But enough about me. On to the round-up.

First, our traditional look at tort “reform”……

I missed this Friday, but a Georgia judge has struck down the state’s medical malpractice caps.

Unfortunately, Tennessee is going the other way. A medical malpractice notice and certificate of merit bill has gone to the Tenn. governor.

Ken Shigley points to an April opinion from a federal judge that, according to Ken, “shells the corn” about preemption. I had to read the post to figure out what “shells the corn” means.  But then, I had never heard the supposedly key Texan phrase of “all hat and no cattle” until Hillary Clinton told me during the primaries that it was a popular Texas saying.

From me, an Austin doctor talks about the need for medical malpractice protection. Des Moines personal injury lawyer Steve Lombardi also picked up the story.

Texans For Lawsuit Reform has commissioned a study to decry the great benefits of tort “reform.” (Also at Point of Law.) The response from the Texas Trial Lawyer’s Association (disclosure — I’m an active member) focuses on the fact that the study’s author won’t disclose his methodology on how he came to these findings. And even some Republicans in the Texas legislature have expressed skepticism about the study. You can read about that from

I’m not sure it’s tort reform related, but John McCain has been talking a lot lately about his choice of judges. I have a hard time remembering when McCain is a right winger and when he’s a moderate “straight talker,”  but I don’t think I’ll forget where he stands on this issue — perhaps the most important presidential power for those of us in the legal field.

Now on to actual litigation news….

North Carolina was in the news a bit this week. Amongst the presidential hype, the North Carolina Medical Board considers transparency by making medical malpractice settlements public. Personally, I think this is a great idea. It is extremely difficult for patients to find out about their potential care givers. While some health insurance companies now provide doctor “rankings,” I have to believe that a large portion of those rankings is based on cost of care and not quality of care.

In Arizona, the family of a Border Patrol agent filed a wrongful death suit after his Tahoe rolled over.

Speaking of cars, Toyota is recalling over 90,000 Highlanders.

Moving on to pharma news, the Baxter CEO says Baxter hasn’t had a legal hit on the heparin mess.

When is a $50 million fine/plea bargain not enough? When you don’t tell the victims about the deal. The 5th US Circuit Court of Appeals rejected the BP plea bargain to pay a $50 million fine stemming from the 2005 Texas City explosion.

And there are more guilty pleas for those interested. In the shipping world, Norwegian Cruise Lines entered a guilty plea following a 2003 explosion at the Port of Miami.

The Washington Injury Attorney Blog has a disturbing post about the danger of movable soccer goals. As a parent of two kids, this was a bit of a concern.

And as the summer approaches, kids are reminded not to chase the ice cream or snow cone trucks.

And to a more grown-up concern, an associate has filed suit against Bingham McCutchen after she was (allegedly*) drugged and raped at a firm holiday party. *You need these types of disclaimers when writing about lawyers.

Virginia Beach personal injury lawyer Rick Shapiro has a post describing an older case, but I thought it deserved a link because it lays out an egregious fact pattern of medical malpractice.

UPDATE: This is the first ever update to my version of the PI round-up, but this is important. Judge Bork settled his $1 million slip and fall case for an undisclosed amount. I can’t say that I’m keeping up with personal injury news if I don’t include news on PI claims brought by from former Supreme Court nominees.

And on to the miscellaneous…..

The first post is from January, but I found it on Victoria Pynchon’s blog this week, so I think it technically qualifies. But at the Consensus Building Institute, they describe a mediator’s experience as a juror. I think trial lawyers should read about every jury experience that we can.

I also liked Victoria’s post The Biggest Lie In The Business: It’s Only About Money.

And Eric Turkewitz is not only a superb lawyer, but apparently an athlete extraordinaire.

John Day continues with his great trial lawyer series, but I’m a tad confused by his numbering system. In any event, enjoy “Part 18 What It Takes To Be A Great Trial Lawyer – Part 15.”

And finally, I hope none of us ever needs this advice. Though there is this sobering note on the possibility of Texas lawyers going to jail for pleading errors.

Thanks for reading, and have a great weekend.

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

Secrecy in the Texas Supreme Court?

Several Texas newspapers ran stories regarding a report from Texas Watch that criticizes the Texas Supreme Court for issuing a growing number of opinions anonymously. The Houston Chronicle’s article on the report notes:

The report by judicial watchdog group Texas Watch shows that 57 percent of the opinions issued in the court’s 2006-07 term were anonymous and unsigned. In contrast, 5 percent of the opinions issued by the U.S. Supreme Court were anonymous in a similar time period.

Anonymous opinions, known as per curiam, are typically used for opinions that are not controversial, brief and for relatively obvious legal answers.
“All too often, the Texas Supreme Court uses per curiam opinions as a shield to hide behind when they render decisions that are controversial, leaving them unaccountable to voters,” the group wrote in the report. “By relying too heavily on unsigned per curiam opinions, the court operates in the shadows, allowing little public scrutiny and failing to light the way for future jurists.”

Justice Wallace Jefferson responded to the allegations by saying they were a mere peculiarity of the docket, but doesn’t really give a reason for the rapid rise.  I’m not prepared to say that there’s an ill motive from the Court, but I do think it’s a trend worth watching.

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A Doctor Touting the Benefits of Texas’s Medical Malpractice System?

I was watching a local news station last night, and they had a story about medical tourism.  There is apparently a quickly growing trend of people visiting foreign countries (primarily India) to have medical procedures performed.  The procedures are suppposedly much cheaper than the same surgeries here in the US.  I really began paying attention when the reporter interviewed a doctor and asked his thoughts about the practice. The doctor said that one benefit of having services performed here was that we had medical malpractice laws to protect patients in case something went wrong.  I was shocked.  A doctor touting the benefits of medical malpractice laws?  You’re kidding me, right?  In 2003, when the medical malpractice system came under fire, I don’t remember any doctors jumping up to defend the system and the public’s rights.   I just remember doctor after doctor talking about how bad the system was and pushing for more limits that have essentially destroyed the system for most victims of medical malpractice.  But I guess it’s okay to support the system now when it’s a benefit that could help your business.

You can watch the story here.    Hopefully the station will allow us to embed stories in the future.

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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

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