Botox May Cause Brain Injury

There is nothing wrong with wanting to look younger, unless the Botox migrates and causes brain damage.

In this case, a jury handed down a $212 million award to a plaintiff who stated that Botox side effects left him with brain damage. The plaintiff used to have a normal life, up until he got Botox injections for writer’s cramp in his right hand. It seemed like a simple enough procedure, but while the injection process was fairly easy, he was left with permanent brain damage, brought on by the Botox triggering an autoimmune reaction.

The 67-year-old plaintiff filed a lawsuit accusing the Botox manufacturer of failing to warn users about the risk of brain damage as a result of using their product. The jury evidently agreed and awarded $12 million in compensatory damages and $200 million in punitive damages. Unfortunately, the state the man lives in has a medical malpractice cap, and his award will be reduced to $350,000 despite his life-altering injuries. The manufacturer, Allergan, pled guilty to illegally marketing Botox.

It really should be no surprise that Botox tends to affect people in different ways, and that it has the potential to cause grave harm to those who use it. Botox itself is comprised of small amounts of bacteria that are part and parcel of botulism poisoning. That is what is injected to smooth out wrinkles, treat people with crossed-eyes, and assist people with involuntary eye blinking and involuntary neck muscle contractions, as well as excessive sweating. It has also found an off-label use to treat children with cerebral palsy, to help them with their stiff, jerky movements.

The off-label usage of this drug was called into question at trial, when the plaintiff revealed the company trained doctors on how to bill for unapproved uses of Botox. They also set up a reimbursement hotline that advised doctors on how to get paid for using Botox in procedures that had not been sanctioned by the FDA.

On the surface, the use of Botox to help medical conditions sounds wonderful. But, what a lot of people do not understand or perhaps do not realize is that the medication tends to spread, or migrate, from the injection site to other parts of the body. This can cause paralysis, impaired breathing and difficulty swallowing – complications that may lead to death.

Medical malpractice? While the circumstances of the case will dictate whether or not it is medical malpractice, there is a good chance a jury would find for the plaintiff in a case like this. There are some juries who do not like trying cases of cosmetic surgeons who have made mistakes, or injected drugs like Botox, largely because, although it should not be an issue, they feel if the plaintiff chose freely to go for treatments, then whatever happens, happens. Not all cosmetic medical malpractice cases are successful.

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

Fireworks Safety — Fireworks Causing More Personal Injuries

Today, the Consumer Product Safety Commission had a fireworks safety conference on the National Mall in Washington, DC.

According to the CPSC, in 2010, approximately 8,600 Americans ended up in hospital rooms because of fireworks injuries.  Most of these injuries involved burns to the hands or the face.  Sadly, about 40 percent of the injuries were to children younger than 15.

There are several key components of firework safety.

PREVENT FIREWORKS INJURIES.  Don’t let you, your children, or your friends become victims.  Follow these recommendations from the CPSC:

  • Never allow young children to play with or ignite fireworks.
  • Avoid buying fireworks that are packaged in brown paper because this is often a sign that the fireworks were made for professional displays and that they could pose a danger to consumers.
  • Always have an adult supervise fireworks activities. Parents don’t realize that young children suffer injuries from sparklers. Sparklers burn at temperatures of about 2,000 degrees – hot enough to melt some metals. (I highlighted this one.  Too often we think of sparklers as harmless toys, and we let kids use them.  This was truly shocking to me.  Brooks)
  • Never place any part of your body directly over a fireworks device when lighting the fuse. Back up to a safe distance immediately after lighting fireworks.
  • Never try to re-light or pick up fireworks that have not ignited fully.
  • Never point or throw fireworks at another person.
  • Keep a bucket of water or a garden hose handy in case of fire or other mishap.
  • Light fireworks one at a time, then move back quickly.
  • Never carry fireworks in a pocket or shoot them off in metal or glass containers.
  • After fireworks complete their burning, douse the spent device with plenty of water from a bucket or hose before discarding it to prevent a trash fire.
  • Make sure fireworks are legal in your area before buying or using them.

Injuries to friends and families often result in lawsuits.  Obviously, people that are messing around and doing ridiculous things like shooting fireworks at others can be sued for any injuries they cause.  But the potential claims go beyond that.  For example, if parents are negligent and either give their children (or other children) fireworks or if the parents fail to properly supervise the kids, then the parents could be sued for any injuries the children sustain or cause.

Obviously, the most important part of this warning is avoiding the injuries altogether.  None of us want the holiday season ruined by a hospital visit.

PREVENT FIRES.  In addition to the typical injuries, we face additional problems in Austin and Central Texas (really, all of  Texas).  Even after last night’s rain, we’re still in a drought, and the area is still dry.  A huge risk this year is that fireworks spark serious fires. 

Not only would these be devestating, but lighting fireworks that result in a fire that damages someone else’s property or causes them injury could result in a lawsuit against the person shooting off the fireworks.

BEWARE OF GEL-FUELED POTS & BURNERS.  One of the new issues the CPSC is highlighting in its conference is that dangers of gel-fueled pots & burners.  You will see these as tiki torches, pots you burn to keep bugs away, etc.   There are also new fire starters for grills that are gel based.   These items are highly dangerous and causing increasing injuries. 

There are several factors that make these so dangerous.  First, the fires are hard to put out.  Unlike most fires, the only effective way to put out a significant gel-fueled fire is by using dry chemicals.  This means that stop, drop & roll doesn’t work; it means that trying to beat out the fire doesn’t work.  You have to use a fire extinguisher or baking soda to put these fires out. 

The second thing that is so dangerous is that you can’t see the flame.  Unlike traditional fires, when these gels are burning, they don’t produce a flame.  If you see someone whose shirt is burning, there’s no way to know where the fire actually is  (you will see char marks after the fact).  That makes it hard to put these fires out.

The key for safety is to be aware of the extreme dangers so you will be cautious when using these items. 

Below is a story from the Today show that talks about the CPSC’s demonstration.

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Posted on: June 22, 2011 |

Car Wrecks: Rick Perry Puts Politics Over Safety With Veto of Texting-While Driving Ban

I try not to talk too much about politics here, but the I do have an exception for tort reform issues and safety issues.  Last Friday, Governor Perry made what I think is a dangerous decision on a safety issue.

One of the good things to come out of this legislative session was HB 242, which imposed a state-wide ban on texting while driving, among other things.  This was a huge step in making the roadways safer for all Texas motorists.  It also received bi-partisan support in both the House and the Senate, where it passed almost unanimously.

Unfortunately, last Friday, Governor Perry vetoed the texting-while driving bill.

What almost offends me more than the veto is Perry’s “reasoning” for the veto.  In vetoing, he stated that the bill was an “overreach” that attempts to “micromanage the behavior of adults.”   He then added that a more appropriate measure may be more education of drivers. 


Is the speed limit an overreach?  Or laws against driving while intoxicated?  Because study after study finds that texting while driving is more dangerous than both.  From the cases we see on a regular basis, texting while driving is perhaps the biggest roadway danger out there.  And with Governor Perry’s assistance, the state refuses to do much about it.

I’m also upset about his suggestion that education might be the answer.  That’ obviously wrong.  People know about the dangers of texting while driving, but they do it anyway.  And more importantly, as far as I can tell, Governor Perry hasn’t proposed any new education effort to help spread the dangers of texting while driving.  He’s not even helping push what he claims is the solution to the problem.

I thought I might be in the minority on my view because I see the dangers of texting while driving on a daily basis, but I was happy to see that a West Texas news station found that even typically conservative West Texans disagreed with the veto.  KWES News9 has a great article/story with reactions from their part of the state, and I urge you to read their article.  

So for now, politics again gets in the way of safety.  While the texting while driving ban wouldn’t prevent all people from texting while driving, but it would have helped.  But for now, the carnage continues.

Motorcycle Helmets Are Not Foolproof When It Comes To Traumatic Brain Injury

While motorcycle helmets do help to reduce the severity of traumatic brain injury, they are not foolproof.

When it comes to all but the most minor motorcycle accidents, it is virtually a given that the biker will suffer some form of traumatic brain injury. The same thing is usually true with car crashes. The head is highly vulnerable. Once it is rudely jostled around inside the skull, traumatic brain injury is inevitable.

Did you know that just about one out of every five biker accidents end up with neck or head injuries? Many of these types of injuries are also fatal. The unfortunate thing is that most car drivers just do not see bikers and as a result, they do not yield the right of way to them. Instead, they either turn right in front of them or cut them off. Death often stalks accidents like that. Statistics also show that per mile ridden, a biker is, on average, 32 times more likely to die in an accident than a passenger in a car.

Even bikers who choose to wear their safety helmets may sustain blunt force injuries to the front of the head. This usually ends up damaging the parts of the brain that deal with speech and other higher functions. Those who have chosen to not wear safety gear may run the higher risk of a penetrating head injury, causing direct soft tissue damage to the brain. In either case, the results are not pretty.

It is quite evident that the best way to prevent or, with luck, reduce the severity of a traumatic brain injury is to wear the helmet, whether you like it or not. The U.S. Department of Transportation has approved helmets that have been proven to make a difference in motorcycle crashes. No one said they were foolproof, but they do give the biker a better chance of not becoming a brain-impaired vegetable.

Did you know that in some states, a biker’s failure to provide a passenger with a helmet may be considered to be negligence, particularly if the passenger is under the age of 21? Additionally, if the helmet used is not up to state or federal guidelines, had been in an accident before or does not fit properly, it may be considered to be illegal and will not offer the right kind of protection against traumatic brain injuries.

If you ride, ride with your safety and a passenger’s safety in mind. Quite literally, your life depends on it. If you need legal assistance as the result of being in a motorcycle crash, make your first call to an experienced Austin injury lawyer. Find out what the rules are in your state and how to move forward with a lawsuit.

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

Is Your Personal Injury Lawyer A Member Of The Texas Trial Lawyers Association And The Capital Area Trial Lawyers Association?

A problem for potential clients is knowing what to look for in a potential personal injury lawyer. One thing I always advise is to find out whether your lawyer is a member of the Texas Trial Lawyers Association and, if in Austin, the Capital Area Trial Lawyers Association.

The Texas Trial Lawyers Association is the largest collection of plaintiff’s personal injury lawyers in the state. The Capital Area Trial Lawyers Association (of which I am secretary and on the executive committee) is our local chapter of Austin personal injury lawyers.

The great thing about these organizations is the attorneys’ willingness to share and help each other out. The continuing education courses are among the best I’ve ever attended. But the jewel of each may be the listserves that each operate. Hundreds of lawyers around the state are continually willing to share their knowledge and experience to help others. The listserves of each are among the best ways I know to stay abreast of changing issues of law, trial techniques, etc.

Yesterday was a prime example of the potential value of TTLA/CATLA membership and the listserves.

I had a hearing in a North Texas county involving an uninsured/underinsured motorist case. The issue at the hearing was whether I was entitled to take a deposition of a representative of the insurance company.  I had requested the deposition, and the insurance company had filed a motion with the Court arguing that it was not required to provide the deposition.

When we arrived for the hearing, the Court informed me that he had read the motion and that it was his understanding from his practice that the insurance company was not required to provide the deposition.  I argued that the case was identical to the case of In Re Garcia, a 2007 opinion from the San Antonio Court of Appeals, where the Court held that the trial judge had made an error by not allowing the deposition.  I prevailed.

The amazing thing about the hearing was that neither the Judge nor the opposing attorney, who routinely represents insurance companies in these types of cases, had heard of the In Re Garcia case.  But this is a case that is routinely discussed on both the TTLA and CATLA listserves.

What does that mean to potential clients? Even though this case is four years old, most lawyers aren’t using the case to get depositions in these uninsured/underinsured motorist cases.  But TTLA and CATLA members are.

This is just one example of many on how TTLA and CATLA benefit lawyers and their clients.  We continually collaborate on hot-button issues to give each other the opportunity to make the best arguments that can help our clients.  (For example, I have a paper on uninsured/underinsured motorist coverage I prepared for a speech to the Capital Area Trial Lawyers that I’ve probably shared 50 times with lawyers around the state to help make sure they are making the best arguments for their clients.)  The ways we help each other are too numerous to list.  We bounce ideas off of one another;  we help each other evaluate potential settlement values of cases; we help each other with suggestions of which experts might be good  (or not good); we share with one another depositions of defense experts to help each other prepare for our own depositions.  The list goes on and on.  And in the end, we provide our clients better representation because we’re members of the organizations.

While there isn’t any guarantee that a TTLA or CATLA member will be a great lawyer (certainly, I’ve fielded questions from lawyers in our organizations that puzzled me), I think the lawyers in the groups have a better opportunity, and hiring mem bers of those organizations is probably a better test for potential clients than just hiring who has the best yellow pages ad or television commercial.

Conference Seeks To Reduce Number Of Trucking Accidents and Bus Wrecks

Recently, the National Transportation Safety Board convened a two day meeting of federal regulators, safety experts, and the truck and bus industries to try and tackle the often deadly problem of trucking accidents and bus wrecks.  The conference was to examine what is being done to prevent deadly accidents and why past safety recommendations haven’t been enacted.  Some of these recommendations have been pending for decades, including a 1968 recommendation that buses come with seat belts, which wasn’t enacted until last year.

Ironically, the number of fatal trucking accidents has decreased slightly in the last few years, but most experts attribute that to fewer trucks and buses being on the road in the weakened economy.  Experts fear that as the economy recovers, the number of trucking wreck and bus accident fatalities will climb.

One of the most important areas sought to be improved by the Obama Administration is the area of driver fatigue.  As much as one-third of all commercial motor vehicle crashes are due to fatigue according to the NTSB.  There are already limits on the number of hours that truckers and bus drivers can drive, but the Obama Administration is seeking to decrease those hours a little more. 

But the limits on hours driven is meaningless if it can’t be enforced.  Currently, drivers are required to maintain log books that set out their hours behind the wheel.  Unfortunately, we’ve seen too many cases where those log books were fudged or the driver maintained two sets of log books to allow them to “beat” the regulation.  Another proposal from the Obama Administration would require equipping buses and trucks with devices that would record how many hours drivers were behind the wheel. 

The Administration also wants trucks and buses to have some of the same safety technology that buses and trucks use in other countries.  For example, buses and trucks could have electronic stability control (which helps prevent rollovers), warning systems to alert drivers they’re drifting in lanes, and warning systems that alert drivers to impending collisions.

It’s too early to know what will come of the summit, but we hope improvements are made.

Hot Coffee — The Movie

The most successful advertising campaign ever has been the tort reform movement’s propaganda campaign.  And perhaps the most well known (and most misunderstood) case in that campaign has been the McDonald’s hot coffee case.

Now, a producer has created a documentary that looks at the case, and three other cases, to tell the truth about “tort reform.”  The film was backed by HBO and will show be shown on June 24.  I urge all of you to take a couple of hours to watch it.

Until then, here’s a trailer of the film:

Texas Seeks To Ban Texting While Driving

A state-wide texting while driving ban has been passed by both the Texas House and the Texas Senate and is on its way to the governor.  Let’s hope he has the good sense to sign the bill into law.

As you know, if you read this blog, texting while driving is one of the most deadly activities you can engage in while on the road — studies even show it’s worth than driving while intoxicated.  You’d think people would be smart enough to avoid this activity without the government telling them not to do it, but you’d be wrong.  As a result, I think this it the right time for the law. 

If you’re interested in learning more about the dangers of texting and driving, you can read more posts here.

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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