Wrongful Testicle Removal Prompts Lawsuit

Having a testicle biopsy is one thing. Waking up to find the testicle surgically removed is another.

This case is a difficult one and one that the plaintiff never dreamed would ever happen. The story unfolded fairly quietly to begin with when 23-year-old Karl Ruby (names have been changed to protect the victim and their family) went to a Tucson hospital to have a biopsy on his right testicle. It was evidently his understanding that the procedure would remain a simple biopsy, unless the biopsy showed the presence of cancer.

When Ruby woke up and found out he had lost his testicle, he assumed, as he had been told earlier, that he had cancer and that was why it was removed. Just a little over a week later during a follow-up appointment he got some stunning news – he did not have cancer. This revelation prompted Ruby to take his case to a medical malpractice lawyer and sue the hospital and the doctors involved in his surgery.

The case made it to court where the jury heard that Ruby had been in an alcohol related roll over, and went to the hospital for pain, which he thought was a result of the accident. The hospital subsequently phoned him and said he had a mass in his right testicle and needed a biopsy. Ruby went to the doctor who said he has a mass on his “left” testicle and calcium buildup on his right. He later corrected the choice of testicle after an ultrasound to the right testicle showed a mass. A biopsy was talked about again with the physician indicating the testicle would only be removed if cancerous.

This is the point where things got confusing, as the doctor supposedly told Ruby he’d do an excisional biopsy – meaning do the tests after the testicle was removed. Ruby said that was not right and he was later informed the mass was a hematoma. The defendants claim Ruby knew doctors could not do a biopsy without removing the testicle to avoid spreading cancer. In addition, hospital records seem to indicate Ruby told a nurse he was there to have his testicle removed.

As you may gather, this is one of those cases where a great deal will hinge on the evidence, the documents and how the case is presented during trial. “This isn’t going to be an easy case, but the attorney obviously felt that there was a good chance Ruby would win, and had the kind of proof that should stand up in court, or the case would not have gone to trial,” indicated Austin personal injury lawyer Brooks Schuelke.

Many medical malpractice lawyers are selective in the cases they choose to take to trial that involve medical malpractice. One reason for this is that many states, including Texas, have medical malpractice damage caps. This means that no matter how serious the injury is, there is an arbitrary limit on the amount of damages that the medical malpractice victim can recover.

This flies in the face of true justice and holding the wrongdoer completely accountable for their negligence. Unfortunately, in some cases of genuine malpractice the true damages would far exceed the cap and the case isn’t accepted because of the costs involved to the client.

“The other thing many people don’t realize is that not every bad medical outcome is the result of medical malpractice. For this reason, some people who feel they have a medical negligence case don’t really have a case. This is something that is difficult to explain, as perception is a big part of any person’s relationship to what happened to them. In any situation where you think you have been the victim of medical malpractice, take the time to consult with an attorney. You will need information to make informed decisions,” added Schuelke, an Austin personal injury lawyer.

Contact Perlmutter & Schuelke PLLC at http://www.civtrial.com or (512) 476-4944.

Have A Safe Boating Weekend

Loop 360 boat rampMemorial Day Weekend traditionally kicks off Austin’s boating season, which promises to be expecially good this year since Lake Travis and other area lakes are finally full. Unfortunately, it seems like every Memorial Day weekend also brings with it at least one serious boat crash that results in serious injuries to those involved.

As you’re out on the lake this weekend, remember that the biggest culprit in boating safety is alcohol. Due to the waves, sun, wind and fatigue, 1 drink on the water is equal to about 4 drinks on land. And yet people continue to drink and boat. Please!!! Don’t do it, and watch out for those that are.

Additionally, make sure that you have enough life jackets on the boat. All kids under age 13 must be wearing life jackets, and there must be enough life jackets for each of the boat’s occupants. But not only should adults have life jackets, they should use them. Nationally, around 85% of all boating fatalities are the result of the victim not wearing a life jacket.

Finally, use your lights. I have a former client that was a lake police officer on Lake Austin, and he repeatedly told me that the second biggest problem on the lake was night time collisions. Use your lights, and look out for others.

For more information,  check out the following:

(flick photo courtesy of rutlo)

Coming To Our Offices? Get Off Your Cell Phone

In April, I had a post featuring a KXAN story about drivers illegally using cell phones in school zones.  At the time, the story focused on drivers breaking the law in front of my kids’ school.

Now, it gets even closer.  Last night, KXAN ran another story about people using cell phones in school zones, and this time, the featured school zone was the school zone next to our offices .  You can watch the story below.


So if you’re coming to our offices, pay attention.   But not just when you’re coming to our offices.  These school zones are all over town, and they’re protected for a reason.  Not only do you risk getting a ticket, but you’re risking our kids’ safety.  No phone call is worth that.

Injured? When Do You Need To Talk To A Personal Injury Lawyer?

I often have the misfortune of telling potential clients that I can’t help them because they didn’t come to us soon enough.  Clients often think they’re doing great to call us several months before a statute of limitations runs.

But that’s not always enough notice.  A number of cases require immediate attention.  For example, in a premises liability case, for best results, we need to be able to inspect the scene as close to the date of the accident as possible.  When conditions change, it’s hard, if not impossible, to go back and recreate who was at fault.  Sometimes clients can take photos and document the scene so that we do those types of investigations, but it’s safer to get the expert and attorneys out there before any changes are made.

And don’t get me started with trucking cases.  In a serious trucking case, the trucking company will have its experts at the scene, inspecting vehicles, etc within a few hours.  That’s a huge advantage.  An injured person obviously won’t be able to timely research a trucking case unless they hire an attorney early.

Even in some of the most basic car wreck cases, early investigation can be important.  Police officers investigate hundreds of accidents per year.  You don’t need to talk to them in every case, but when you do, you need to talk to them early so they remember the wreck you were in.

So that’s the answer.  Talk to a personal injury lawyer early.  Once you miss the time to do investigation, you can’t get that back.

Waiting too long to contact an attorney is only one of many mistakes that accident victims make that can hurt their claims.  If you’ve been injured in a Texas accident and you want to avoid those mistakes, order our free book HOLDING WRONGDOERS ACCOUNTABLE: Avoiding Mistakes That Can Ruin Your Texas Accident Claim.  We’re on a mission to make sure that insurance companies and other lawyers don’t take advantage of accident victims, and a lot of the advice in the book is designed to prevent that from happening.

You Should Worry While You Walk

Premises liability isn’t easy to understand. Generally speaking, owners are responsible to keep their premises safe.

Premises liability is an area of the law that holds property owners and people who legally occupy property responsible for injuries that happen on their land. As an example, let’s say you were in a grocery store and you slipped and fell on a wet patch in the produce section, or you tripped over an uneven cement block near a construction site. In both of these examples the injured party may be able to claim damages from the owner or occupier of the land by filing a personal injury lawsuit with the assistance of an Austin personal injury lawyer.

The general idea behind the law of premises liability is the property owners and occupiers must keep their property safe for anyone that uses it. They must locate dangerous conditions and repair or adequately post them as being dangerous. In other words, the warnings need to be highly visible and clear. If the particular condition is “left” unfixed and does not have a proper warning, liability may be assigned to the property owner or occupier for anyone that is hurt on their premises.

You might wonder about trespassers on another person’s property and whether or not they may sue for damages if they hurt themselves while trespassing. The answer to that is maybe. In general, the owner is only responsible for watching out for all visitors, “except” trespassers. However, if the owner also “knows” trespassers are likely to come on the land, they must still post a visible warning to prevent trespassers being injured. If this is confusing, you should talk to an Austin personal injury lawyer and find out how that is possible.

The long and short of this is that if you have been injured on someone else’s property and your injury was a direct result of hazardous conditions or negligence, you might have a good case to recover your medical expenses. Speak to a qualified Austin personal injury lawyer for the right information, to find out your rights and to know what your options are in your circumstances.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke PLLC. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

Corporations Think Litigation Is Too Lengthy & Costly? Pot Meet Kettle

According to a new study conducted for a judicial conference, corporate counsel almost unanimously agree that civil litigation is too expensive, while 90 percent say that it takes too long. 

I almost laughed when I read that.  I’m not sure what type of civil litigation they’re referring to, but in almost every case I’ve been involved in — whether business litigation or personal injury litigation — the delay and expenses have been driven by the defendant businesses or insurance companies.  Generally, plaintiffs and plaintiffs’ lawyers want to move cases.  Plaintiffs want resolution.  They want the case to be over. Additionally, cases get more expensive as the cases go on, and those expenses are deducted from the client’s recovery.  Once basic discovery has been done, then most of the time we know enough to either settle or try the case.  Extending the time just costs the client more.   Likewise, plaintiffs’ lawyers generally get paid on a contingency fee basis.  We don’t get paid until it’s over.  You can see why the lawyers might want to resolve the case sooner rather than later.

But not so with defense lawyers.  Perhaps I’m jaded, but it often seems like the defendant’s only goal is to drag a case out as long as possible.  Even a small car wreck case — which involves little discovery and 2-4 days of trial — often is met with delay.  I can’t tell you the number of times I’ve called defense lawyers lately requesting a trial date for a case to push it to resolution only to be told that the lawyer can’t agree to a trial setting more than a year out.   Ridiculous. 

So that’s why I find it laughable to have corporate counsel complain about the delays and costs of litigation.    From our perspective, let’s get the cases resolved.  Let’s get the discovery going so we can all know the basic facts.  Once we do that, let’s give it a shot at settling, and if that fails, let’s get a quick trial.  If  corporate counsel wants to reduce the cost and delay, we can do that.

Posted on: May 21, 2010 | Tagged

How Dangerous Is Dental Anesthesia In Children?

My friend Steve Lombardi, a personal injury lawyer in Des Moines, had a blog post the other day talking about Children’s Safety and Dental Anesthesia.   In the post, Steve described a recent incident in Canada where a child died during a dental visit.   I hadn’t really thought much about the problem so I took a few minutes to Google the issue.  While these types of problems appear to be rare, they do occur.  In fact, a young child died just last week at Virginia Commonwealth University’s dental clinic. 

And the problem may be increasing.  Kevin Donly, the chairman of pediatric dentistry at the University of Texas Health Science Center in San Antonio, notes that cavity rates for children ages 2 to 5 has increased for the first time since dentists have been keeping track of those statistics.  As the cavity rate increases, the need for procedures and anesthesia increases.

So what do you do to protect your kids?  Frankly, I don’t have an answer.  We all want what’s best for our kids, and that includes keeping them safe.  Screen your dentist.  If general anesthesia is being used, make sure that an anesthetist is involved.  But maybe the best way is prevention.  Make sure your kids take care of their teeth.

Other posts of interest:

A Drowsy Driving Tragedy

While we never hope for tragedy, we should learn from it.

This weekend, Bellaire High School senior Tobi Oyedeji, a high school basketball star who was planning to play at Texas A&M, was tragically killed in a car wreck.  Oyedeji was returning home from a school-sponsored after-prom party when he reportedly fell asleep, crossed the center line of the roadway, and hit another driver.  The other driver was pronounced dead at the scene, and Oyedeji died later.

As I said earlier, tragedy is always hard, but the least we can do is learn from it so that others are saved.

The first lesson from the wreck is about the dangers of drowsy driving.    That National Highway Traffic Safety Administration estimates that 100,000 police-reported crashes occur each year as a result of driver fatigue.  These result in  an estimated 1,550 deaths and 71,000 injuries.    And these estimates may be on the low-side since there are no real tests to  check for fatigued drivers.

The National Sleep Foundation’s DrowsyDriving.Org website states that specific at-risk groups are:

  • Young people — especially males under age 26
  • Shift workers and people with long work hours –working the night shift increases your risk of a drowsy driving wreck by  nearly 6 times
  • Commercial drivers — especially long-haul drivers — at least 15% of all heavy truck crashes involve fatigue

The second lesson to be learned is that drowsy driving wrecks can happen to anyone.  By all accounts, Oyedeji was a great kid.  He was not only one of the top 100 high school basketball players in the country, he was also an academic star.  If it can happen to him, it can happen to anyone. 

And it has.  The DrowsyDriving.org website has videos from such notables as Alex Trebek and actress Tyne Daly discussing their near-misses.  But they’re not alone.  The National Sleep Foundation conducted a survey that found 60% of Americans have driven while feeling sleepy and 37% admit to actually having fallen asleep at the wheel in the past year.  Those are scary and stunning numbers.

When we see these wrecks, as personal injury attorneys, they’re often horrific.  These aren’t usually rear-end accident cases.  They usually involve a fatigued driver veering across a center line or off a road or nodding off while going through an intersection, causing a high-speed collision.

Because these wrecks are so horrific, it’s important to be aware of some signs of problems.  The National Sleep Foundation suggests you stop and rest when you experience:

  • Difficulty focusing, frequent blinking, or heavy eyelids
  • Daydreaming; wandering/disconnected thoughts
  • Trouble remembering the last few miles driven, missing exits or traffic signs
  • Yawning repeatedly
  • Trouble keeping your head up
  • Drifting from your lane, tailgating, or hitting a shoulder or rumble strip
  • Feeling restless and irritable

If you find yourself experiencing any of those signs, heed the warnings. Don’t let you or your loved ones become the next tragic story.

Posted on: May 18, 2010 |

Out of Control Car and Big Rig Collide

No one knew why the car was being driven so erratically. The consequences were death by 18-wheeler.

This particular accident was not only tragic, but hard to explain. The driver of the car involved was swerving erratically all over the highway, lost control and went into a spin that swept the car across the center line right into the path of a big rig.

The impact was so catastrophic that the truck and car went careening into a bank of trees, trapping the car between the truck and the trees. Responding EMS crews arrived at the scene quickly, but unfortunately, the driver of the car, 36-year-old Eren Dalwall (names have been changed to protect the identity of the victim and their family) was pronounced dead at the scene of the crash.

The trucker was taken to a medical facility for treatment and was fortunate enough to not have serious injuries. The truck wasn’t in great shape though.

Why did this happen? Police reports indicate that Dalwall may have been speeding and playing chicken while on the highway, which may account for the rapid swerving in and out of the lanes and the eventual loss of control.

It’s not clear yet if there were other factors at play in this accident, such as alcohol, texting while driving, driving while distracted, DUI or driving under the influence of drugs – either prescription or street drugs. And no one seemed to notice if there was another vehicle that was racing with the Dalwall car in some sort of drag race scenario. The police have their work cut out for them in this investigation.

Even though the trucker was not seriously injured, he lost time off work, lost wages, incurred medical expenses and a significant amount of property damage. It may well be that the trucker and/or trucking company will elect to file a personal injury lawsuit against the Dalwall estate to recover compensation.

Car accidents that involve big rigs very rarely have a good outcome. This case is no different. Generally speaking, when a semi and car crash, it is often the fault of the trucker. This isn’t a hard and fast rule by any means, but it is what the accident statistics reveal. It is also what Austin personal injury lawyers tend to see in their practices.

If you have been involved in an 18-wheeler accident and were gravely injured, you need to speak to an Austin personal injury lawyer who has experience dealing with trucking crashes. You need to know your rights and the lawyer needs to know all the relevant details to start collecting necessary evidence. Don’t delay, as timing in cases like this is critical.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke PLLC. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

Car Safety: Do You Need To Use A Booster Seat Starting June 1?

On June 1, 2010, Texas Department of Public Safety officers will begin writing tickets for Texas’s new booster seat law.  The law requires all children under 8, unless they are already 4 foot 9 inches or taller, to ride in a booster seat.  Failure to use a booster seat may result in fines of $25 to $250. 

But don’t just use a booster seat because it’s the law.  Booster seats make a big difference to your child’s safety.  Centers for Disease Control studies show that, for children between the ages of 4 and 7,  use of a booster seat reduces the risk of injury by 59% compared to only using seat belts.

 If you think using only a seat belt is enough, watch the following crash test, and notice the child either coming out off the seat belt and the sealt belt hitting directly across the other child’s neck.  Imagine what something like that would do to your kid.

Posted on: May 13, 2010 |

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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