What we can learn from D Magazine’s “My $25,000 Fender Bender”

d magazineMany of my fellow plaintiff’s 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, My $25,000 Fender Bender: How a minor car accident, a high-strung Ethiopian lawyer, a sick dog, an uncommonly attractive jury, and a 2-foot-high stack of legal papers took over my life, is basically the defendant’s indictment of the civil justice system after he hit someone and was sued. I don’t know whether the article is true or not (there are several things that make me question its total veracity), but even assuming it’s true, there are several things that all of us can learn.

I want to primarily discuss the process, because that’s what the author complains about, but first I wanted to address his 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; most people do. 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).

But it’s just wrong. Most of the recent literature finds that due to the design of cars (stiffer bodies, stiffer seat backs, etc) 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). Heck, always remember 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 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 of my plaintiff lawyer friends won’t be happy to hear this, but there is a lot of truth to the story. I don’t know if the parties involved were in a scam, but I’ll admit that there are far too many chiropractors and lawyers working together to “manufacture” claims. I’ve written on this disgusting 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 solicitation 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; someone you can trust. Fortunately, the Texas Trial Lawyers Association lobbied hard last session to get new 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. As best I can tell from the article, the plaintiff had 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 seems to be blaming the plaintiff. Take some responsibility. That $500 offer at the mediation from the insurance company forced the trial. The insurance company offer (and they systematically make low offers in cases like this) cost themselves the attorneys’ fees and cost the County court and staff time.

I hear you saying, “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 pretty 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 defendant. 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 the article also doesn’t do is present the typical case.  For all the griping about those of us that are trial lawyers, most victims in our suits are hurt and have valid claims.  I’m waiting for D magazine to present the story of my clients that file suit and then are forced to endure frivolous defenses from the insurance company lawyers that are driving up the cost of the case or of the client making a claim on his own uninsured motorist policy and his own insurance company tries to take advantage of him.  Those cases are a lot more typical, at least in my practice, than the marginal claims.

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 http://www.civtrial.com/.

In Study Of Truck Drivers, Texting While Driving Proves To Increase Risks Of Wrecks By Large Margins

texting-while-driving.bmp” mce_src=”http://www.civtrial.com/wp-content/uploads/2009/10/texting-while-driving.bmp” alt=”texting while driving”>Today’s New York Times released a study finding that texting while driving greatly increased the risk of collision.   The study, performed by the Virginia Tech Transportation Institute, put video cameras in the cabs of long-haul trucks and watched the drivers and the road.  The study found that when the drivers texted, their collision risk was 23 times greater than when not texting.  (Maybe what should be surprising is that the drivers would be willing to text while driving even knowing that they were being videotaped.)

This is the first real study that has looked at actual drivers and not lab research.  But the findings are consistent with those found in labs.  The University of Utah, which has been a leader in this area, has tested teen drivers in simulators and, as mentioned by the Times, in college students, each finding that texting while driving is horribly dangerous.

But there might be a glimmer of hope in all of this.  On the same day that the texting while driving study was released, a new study, reported in the Austin American Statesman, found that Texas leads the nation in cutting teen traffic deaths.  A key component of the improvement appears to be a new education program teaching teens about the danger of texting while driving.  Instead of just talking about the problem, the program has interactive exercises, such as one that calls for a student to push another seated in the chair.  The driver is required to go around and through a series of cones while texting.  The predictable results may form a strong lesson for the teens.

If you read my blog regularly, you know that texting while driving is a constant theme, and I’m happy to see any progress, even small, in decreasing the risk that we all face on the road.  I also wanted to give kudos to the New York Times.  In addition to the facts, they created their own interactive game to show the dangers of texting while driving.  You should try it out.

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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 http://www.civtrial.com/.

Car Wrecks Caused By Wrong-Way Drivers Are Causing Too Many Fatalities

This weekend, eight people in New York, including four young children, were killed when their minivan entered a highway going the wrong direction and collided with two other vehicles. It seems almost too bizarre to be true, but wrong-way drivers are more common than one would think. In fact, Sunday’s wrong-way wreck was the second of the day on that highway.

But the New York freeway is hardly alone. After doing a quick Google search, I found stories that this morning a wrong-way driver was arrested on I-164 near Evansville with a blood alcohol content almost twice the legal limit. And just last week, a woman near Pittsburgh was killed while driving the wrong-way and another fatal wrong-way crash occurred in Central Indiana.

And some of these wrecks hit close to home. Perhaps the most notorious area for wrong-way driving is the Dallas North Tollway, where at least eight people have been killed and numerous more injured in a series of wrong-way wrecks that have occurred since October 2008.

And Austin isn’t immune. In June, Austin had its own wrong-way fatality in a wreck along 290.

There is such a problem that the Texas Transportation Institute at Texas A&M did a study on the subject several years ago. For more information on the technical aspects of the wreck, you can read their proposal, Wrong-Way Driving on Freeways in Texas: Problems, Issues and Countermeasures.

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 http://www.civtrial.com/.

New Data Shows Cell Phone Use Contributing To Car Wrecks And Wrongful Deaths

Yesterday’s New York Times broke a story that two public interest groups had obtained research and studies from the National Highway Traffic Safety Administration that document the dangers of cell phone use while driving. Apparently 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.

The research was alarming, finding 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.

Overall, the documents concluded that cell phone use while driving was responsible for 955 fatalities per year and 240,000 car wrecks per year.

And using hands-free devices didn’t help much. One study conducted in conjunction with Virginia Tech found that drivers using a hand-held device were 1.3 times more likely to become involved in an auto accident and at three times the risk when dialing compared to other drivers. 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.

Despite these dangers, Texas has few regulations to minimize these risks of injuries. During the last legislative session, HB 55 was passed, and it prohibits the use of a “wireless communication device” in a school zone unless the vehicle is stopped or the device is hands-free. The law goes into effect on September 1, 2009. Section 545.424 of the Transportation Code also prohibits a driver under 18, during the first six months of having his or her license, from driving while using a “wireless communication device.” Finally, section 545.425 of the Transportation Code prevents a bus driver who is carrying a minor passenger from using a “wireless communication device.”

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 http://www.civtrial.com/.

Protect Your Children From Drowning

swimming pool gate

None of us think it will happen to us or our kids, but it does. For whatever reason, Austin is seeing an increase in child drownings the last few years. Yesterday, officials from Dell Children’s Medical Center warned about the alarming increase in child drowning injuries. In 2007, there were two child drowning deaths in Travis County. In 2008, six children drowned, and already this year there have been four drowning deaths (two swimming pool related and two in bathtubs). Non-fatal drownings, which often result in head injuries, are also on the rise.

The hospital warned that two of the issues with drowning injuries are that it happens so fast and that there is no warning. A child can drown in less than two minutes, and there is usually no screaming or splashing to warn others about the problem.

The sad thing is that most of these deaths and injuries are preventable with proper planning and oversight. To reduce pool related drownings, the Drowning Prevention Foundation of California, one of the leading organizations working to reduce drownings, has these tips:

* Never leave a child alone near water, even for a few seconds. Don’t leave to answer the phone or the doorbell, to go to the bathroom, or to attend to another child.
* Keep a constant eye on young children in or near any body of water (including pools, wading pools and bathtubs). If you are at a gathering, designate an adult to watch children. This is true even if your child has had swim lessons. Approximately 25% of all child drowning victims have had swim lessons.
* Have proper gates and protection devices around private pools.

Similarly, the Foundation has a separate set of tips to prevent bathtub drownings:

* Never rely on bath rings or seats to keep your baby safe. Three of the most common fact patterns for infant drownings are (1) the suction cups on the device release, allowing the device to tip over with the baby’s face in the water; (2) the baby slips between the legs of the bath ring and becomes trapped under water; and (3) the baby climbs out of the product and drowns.
* Never leave a child alone in the bathtub or near any toilet.
* Only fill the tub with enough water to cover the infant’s legs. A child can drown in as little as one inch of water.
* Remember that a baby can drown in two minutes or less.
* Remember that drowning is a silent killer; your child will not cry out.

Like I said earlier, none of us think it will happen to us, but it can. Child drownings are a real danger, and taking heed of the above warnings can go a long way to protecting our kids.

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 http://www.civtrial.com/.

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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