Texas Equal Access To Justice Foundation — And I’m Proud Of One Of My Clients

This is National Pro Bono Week to celebrate attorneys’ providing free legal services to those in need.  The primary organization that helps fund pro bono services in Texas is the Texas Equal Access To Justice Foundation.   

Earlier this week, the Texas Equal Access To Justice Foundation hosted its annual Luncheon With The Texas Supreme Court.  At the luncheon, I was proud to help share the story of one of my clients.  Unlike me, she isn’t used to speaking to large groups so she was nervous about our portion of the luncheon.  But she did a wonderful job of getting up there and sharing how important pro bono legal services can be to those in need.  She really helped put a face on the statistics that were being bantered about the day.

We first told my client’s story in a video for Volunteer Legal Services.  That video is below:

Posted on: October 29, 2010 |

Wrong Site, Wrong Person, Wrong Procedure Problems Continue

I’m fascinated by the phenomenon of surgeons performing the wrong procedures.   It doesn’t make sense that a doctor would ever perform a surgery on the wrong site/body part, perform the wrong procedure on a patient, or perform a procedure on the wrong person.  And yet, it happens over and over again.  I’ve written extensively on it, including the following:

The problem was so bad that the Joint Commission, an international body that works to make medical care safer, adopted a protocol to help minimize the risks of these types of problems.  Unfortunately, a new study released this week shows that, despite the protocol and the additional attention to the problem, wrong site, wrong person or wrong procedure surgeries are as prevalent as ever.

The biggest culprit, according to the study, was culture.   Communication, and the pointing out of problems, is not encouraged.  In many operating rooms, the physicians and staff don’t really know one another, possibly not even knowing one another’s names.  And there is a culture of hierarchy.  Nurses or low level persons may often sense problems, but they’re unwilling to speak up because they are intimidated by the hierarchy.

Regardless of the reasons, this has to stop.  There is simply no excuse for these types of errors, and the medical profession needs to find a way to fix it.

Posted on: October 20, 2010 | Tagged

Keep detailed workplace injury records

Workers injured on the job should keep detailed records of the injury. It will help when filing a claim.

“When someone is hired for a job in construction, management doesn’t typically spend a lot of time talking about workplace injury claims or even workers’ compensation, other than to make sure the new hire gets signed up for it. Even if it’s not mentioned, keep one thing in mind for the future: if something happens to you on the job, keep very detailed records of everything that happens, including filing your accident report with management. You will also want in depth medical records that are easily accessible,” said Brooks Schuelke, an Austin accident lawyer with Perlmutter & Schuelke, L.L.P.

When a mishap does happen at a workplace, the employer is required by law to keep records of the details of the accident in an official accident report book. This is a part of the reporting procedure for disasters in a workplace. Ideally, the overall recordkeeping will indicate any inherent patterns to accidents and let management fix what’s wrong. “The crucial thing to remember is that if the accident is not recorded in the official record book, it may be more difficult to recover compensation,” Schuelke said.

Another thing workers need to know up front is that if they are going to file a workers’ compensation claim, they need to document all of their injuries at once. That, of course, means all the injuries need to be treated at the same time as well. “At this point, you need to also ensure all of your injuries and medical treatments are documented in full detail for future reference. This is so you have something to show a lawyer if you have trouble processing your workplace injury claim,” Schuelke said.

Keep every receipt for every medical test, surgery, therapy session, counseling assistance, medication, etc., because these things are needed when it comes to figuring out the amount of the claim settlement. “Ideally, if you have a witness, it certainly helps your case. That could be another worker, a supervisor or pedestrian who saw the accident,” he said.

While some workplace injury claims go well and things are settled to the satisfaction of both parties, this seems to be the exception, rather than the rule. For this reason, it’s a good strategic move to hire an Austin accident lawyer to make sure the case gets moved along promptly and that it doesn’t get bogged down in bureaucratic inertia.

Typically, compensation claims tend to come in at a lower settlement offer than one would expect. There is a reason for this. Workers’ compensation is insurance and insurance companies are famous for wanting to maintain their bottom line at the expense of those covered. This is one of the major reasons why hiring an Austin accident lawyer will, in the long run, be a benefit. That benefit will pay off in a higher claim settlement.

“Be aware that there is usually, by statute, a two year period to file on-the-job injury claims. However, having said that, don’t wait that long to do something about your claim or injury. The faster you deal with it, the quicker things get handled. Ideally, aim to process your claim within two months from the date of your accident, or sooner. Why? Because the details are still fresh in your mind. Have questions? I’m here to help you. Don’t hesitate to give me a call,” Schuelke said.

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

There’s a solution on the horizon for driving while distracted

A viable solution for driving while distracted may be about to hit the market. Early indications show that it may make a difference.

It’s no secret that one of the biggest concerns these days when it comes to automobiles is the driving while distracted issue. The driving while distracted epidemic is out of control and something needs to be done about it. The debate around this issue pits those who feel no one should tell them what do to when they drive against those who insist that what others do when they drive is of critical concern, particularly if it means they may die at the hands of someone talking or texting on a cell phone.

Another interesting question in this debate asks who caused the driving while distracted issue to arise in the first place. Some would say the cell phone industry caused it by providing the option for drivers to use cell phones in a moving vehicle. Others feel drivers caused it by ignoring the ramifications of using a cell phone while driving. In other words, drivers chose to make it an issue by not thinking about negligently causing a death.

A solution to this issue may be right around the corner if CellControl’s most recent announcement is any indication. CellControl has linked up with IronBridge Partners (insurance/risk management firm). The two intend to work together to roll out an actuarially supported premium discount program for those who use CellControl solutions.

The idea behind this partnership is that if more people would use the solutions, it would ultimately result in a significant cost savings to the insurance industry and consumers – billions of dollars. What IronBridge does is work with insurers, other insurance related service providers and agents and brokers to strive to be more efficient and be able to more precisely measure/manage risks.

The bottom line is that distracted driving has become an even bigger risk than driving while under the influence, which is disturbing. The costs of distracted driving are emotionally, physically, psychologically and financially staggering, not to mention devastating on a personal level in far too many cases to count. The whole point is that using a cell phone while driving is negligent and that negligence results in significant financial losses to businesses, families and, yes, the insurance industry. Think your insurance premiums are too high? Accidents statistics account for a good portion of your rate increases.

When all is said and done, if the partnership of these two businesses pays off by reducing the number of deaths and carnage on the highways and byways of America, perhaps more of our loved ones will come home safe. Maybe, in the process, the education involved in this program will finally hit home and people will start taking responsibility for their driving and taking responsibility for choices that may kill others.

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

Driving Safety — What Car Wreck Risks Do Your Teen Drivers Face?

It’s no secret that teens are more likely to be involved in car wrecks than others, but a new study by the University of Texas helps shed some light on the specifics of those risks.

Federal safety experts took data from nearly 7,000 serious car wrecks across the United States, and a team of researchers from the University of Texas took a detailed look at that data for drivers between the ages of 16 and 20. Their findings were startling.

First, there is a huge difference between a 16 year old driver and a 19 year old driver.  While all drivers between 16 and 20 were more likely to drive aggressively than other drivers, the 16 to 17 year olds were almost twice  more likely to drive aggressively than the the 19-20 year old. 

Additionally, 16 year olds were much more likely to be involved in serious collisions when compared to even 17 and 18 year olds.

Those couple of years of experience and maturity make a big difference in driving safety.

Second, fewer passengers isn’t always better. In an effort to help reduce collisions, many states don’t allow young drivers to have more than one other teenager in the vehicle.  But the study found that one teenage passenger in the car poses a greater risk than two or three teenage passengers. 

Third, the type of vehicle your teens drive makes a difference in whether your teen is likely to be in an accident.  This is bad news for Texas, but drivers of pick-up trucks were twice as likely to be involved in a major accident as drivers of sedans, vans and SUVs.  The safest vehicle?  Teens were less likely to be involved in an accident in the famly van  (no shocker there — who zooms around in a mini-van?), but drivers of SUVs were less likely to be severely injured than were drivers of other cars. 

What to take of this?  If you have teens, these things make a difference in their safety.  Be mindful of how these decisions can affect their safety.

UPDATED OCTOBER 29, 2010

Last night, KXAN ran a news story about the study in this post.  The story is below:

Posted on: October 13, 2010 | Tagged

If A Car Wreck Totals My New Car, Is The Insurance Company Required To Provide Another New Car?

This video discusses the question, “If A Car Wreck Totals My New Car, Am I Entitled To Another New Car?” 

If I have a new car and I’m in a collision, am I entitled to get another new car? And the answer in Texas, unfortunately, is no. Under the state of the law, the insurance company of the driver that hit you is only obligated to provide you with the value of the car, and in almost all cases that value of the car won’t be enough to buy a new car.

It will be enough to buy you a car that is two months or six months or however old your car is, but the insurance company is under no obligation to provide you with a new vehicle, for your troubles.

As always, these are based on Texas law.  If you’re injured in a Texas wreck, feel free to contact us by the box on the page or by phone at (512)476-4944.  If you’re not in Texas, feel free to contact us, and we’ll try to help you find an attorney in your state that can answer your questions.

A Huge Win For Personal Injury Victims

I don’t normally post about legal opinions because I generally think my readers don’t care about the details of claims.  But last week, personal injury victims who have Medicare won a huge victory in a federal court.

If you read this blog or follow me on Facebook or Twitter, you’ve heard my gripes about Medicare.  When our clients who have Medicare settle cases, we have to reimburse Medicare for the amounts that they paid for our clients’ treatment that was related to the wreck, defective product, on-the-job injury, etc.

This is a problem for two reasons.  First, it slows the case down.  Medicare has a huge backlog, and despite continually trying to improve things, they just can’t seem to break through.  So if we settle a case, we may not be able to finalize it for months because Medicare won’t tell us how much they think we owe.

The second issue is that sometimes Medicare tries to take all the settlement proceeds.  We often find ourselves with cases where the settlement isn’t for the full value of the case.  Most of these situations arise when the defendant doesn’t have enough insurance  to cover the losses.  While the case is worth more, we are forced to settle for the amount of what insurance is available.  In many of these cases, the amount of insurance isn’t even enough to pay back Medicare for what they’re owed, much less any provide additional funds to our clients.  And that’s what this victory remedies.

The case at hand involved a patient at a nursing home.  The patient developed a wound in the nursing home.  The wound eventually became infected because of inadequate treatment, and the patient was take to a hospital, where he died after a three month stay.  Medicare paid approximately $40,000.00 for the patient’s hospital stay.

The nursing home only had $52,500.00 in insurance (which is ridiculous, I know).  Because that was all the insurance, the case settled for the $52,500.00. 

Medicare claimed that it was entitled to its full $40,000.00 (less a pro-rata share of attorneys’ fees and expenses), which would have left the decedent’s family almost nothing from the suit.

The family argued that the suit didn’t settle for its full value.  Because it didn’t settle for its full value then the all of the parties, including Medicare, had to take their proportionate hit on the reduction.  Medicare didn’t agree.

The family eventually filed suit against Medicare.   A hearing was held, and the Court determined that the true value of the case (had there been enough insurance) was $2,538,875.08.  Thus, because of the lack of insurance, the case settled for about 2% of its actual value.

The big decision from the Court was that everyone had to bare the loss.   First, the Court said that Florida law, like Texas law, allows some survivors of a deceased to make their own claims.   Thus, the recovery for those survivors belongs to the survivors and Medicare has no claim to it.  Second, the Court said that Medicare has to bear its share of the reduction.

The long and short of it was that instead of paying Medicare the amount Medicare wanted, the Court awarded Medicare $787.50.  This is savings that will directly go to the patient’s family.   As the Court also noted, this decision will help settle claims.  When Medicare is taking all the money, injured persons don’t have much reason to settle cases.  When the insured persons get something, then they have something to lose, and settlement becomes a more distinct possibility.

The entire opinion is here.

Posted on: October 8, 2010 | Tagged

AAJ: Litigation Helps Stop Nursing Home Abuse

The American Association of Justice (AAJ) has released a new report finding that the civil justice system is the most effective means to combat abuses by nursing homes and insurance companies that target elderly Americans.  Now, as a member of the AAJ, I feel free in saying that it might have the potential to be biased, but the parts of the study that I have read are well researched and thought out.  If you want to read the entire report, it’s available for free at www.justice.org/seniors.

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Driving While Ability Impaired? Another DWI Offense In The Making?

In this morning’s Austin American Statesman, the always excellent Mike Ward (and I don’t say that just because our daughters are in the same class and Girl Scout Troop) has an article detailing a movement pushing for the adoption of a “DWI Lite” crime.   Austin police chief Art Acevedo is among those supporting a new crime of  “driving while ability impaired,” which would make it a crime to drive with a blood alcohol level between 0.05 and 0.07.  To give you an idea what that means, Department of Public Safety statistics indicate that most people would fall below that threshold with one drink, but that 2-3 drinks would cause most people to reach the 0.05 threshold.

This isn’t a completely new idea.  Colorado and New York already have similar laws on the books.

I imagine a number of people will be against the proposal.  But as someone who sees the problems of drunk driving on an almost daily basis, I have a hard time being against this.  I sure would be interested in hearing your thoughts.

Posted on: October 7, 2010 |

If You’re In A Car Wreck & Owe More Than Your Car Is Worth, What Do You Do?

This video in our auto accident property damage series answers the question, “If You’re In A Car Wreck and You Owe More Than Your Car Is Worth, What Do You Do?”

I owe more on my car loan than what my car is worth, what do I do?

Too often  a client is what we call “upside-down” on their loan  — the loan is more than what the car is worth. Unfortunately, the client may get in a collision, and then the insurance company is only obligated to pay the value of the car, and then the client still can’t pay off the note.

The question is what do you do? Unfortunately, there are no good answers in these types of situations. Your best bet is to go back to your lender and try to re-negotiate or engage in some other negotiation, where they may be able to help you out. But unfortunately, the insurance company isn’t obligated to pay you the full value of the loan and is only obligated to pay the value of the car, which doesn’t help you get out from under the note.

As always, these are based on Texas law.  If you need the name of a lawyer in another state, let us know, and we can probably help find someone for you.

Posted on: October 6, 2010 |

Perlmutter & Schuelke, PLLC 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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