What Personal Injury Victims Can Learn From The Military’s Brain Injury Debacle

The lasting legacy of the Iraq and Afghanistan wars will be the amazing number of head injuries suffered by our troops.

Yesterday, NPR released a report detailing ways that we are failing those injured.  One key component of the report was failed testing and diagnoses for the injuries. 

The United States has spent $42 million trying to adminster test to members of the military to diagnose whether they have suffered any kind of traumatic brain injury.  In theory, the program should work great.  Every member is tested before deployment and then upon return from depoloyment,  That way, the original tests can serve as a baseline to determine where the military member was before entering the conflict.

But it hasn’t worked out well.  From the report:

We have failed. We have failed soldiers,” says retired Col. Mary Lopez, who used to run the Army’s testing program. She still works with soldiers in Germany. “It is incredibly frustrating because I can see firsthand the soldiers that we’ve missed, the soldiers that have not been treated, not been identified, misdiagnosed. And then they struggle.

The story about how the military got where it is, why they chose the test they did, etc are all interesting, but not what I want to write about today.

Instead, I think personal injury victims can learn from Col. Lopez’s summation — brain injuries are difficult to diagnose and when undiagnosed, the injured don’t get the help they need and then have problems.

That is a lesson that is important for those injured in almost every type of injury claim.  Brain injuries from car wrecks or other accidents are hard to diagnose.  Most of the time, doctors aren’t looking for brain injuries, and doctors usually don’t know their patients well enough to tell if there is a difference in the patient after an incident.

And if the doctors don’t make that diagnose, then the injured don’t get help.

That’s why I always tell my clients to be on the lookout for head injuries.  Often, you or a loved one will be the only ones who notice that you have memory issues or a changed personality.  So it’s important for you to look out for the symptoms.

It’s also important to get the help you need.  When the head injury is severe, there are a number of different forms of cognitive therapies that you can undergo, but the problem has to be diagnosed first.

If I Can’t Work After A Car Wreck, Who Will Pay My Lost Wages?

I’ve been in a wreck and I can’t work. Who’s going to pay me for my lost wages?

In a normal claim, when you are in a car accident and make a claim against another driver, you’ll be able to make a claim against them for lost wages.  Unfortunately, those amounts are not paid until the case is settled or resolved at a trial.  Depending on the severity of your injuries and how unreasonable the insurance company is, that could take a long time.

The only good way to make sure that you are paid for your lost wages as you go along is by purchasing personal injury protection (PIP) coverage on your own automobile policy. Personal injury protection coverage is very inexpensive, and it protects you and your family by compensating you for lost wages and for medical expenses.

If you don’t have these coverages, I urge you to contact your insurance agent and talk to the agent about the protection PIP offers.

What Is Mediation?

The fourth stage of a typical personal injury case is mediation.

Mediation is an assisted settlement conference.  The participants in the mediation usually include the plaintiff, the plaintiff’s lawyer, the defendant’s lawyer, the insurance adjuster, and the mediator.

In many mediations, the parties gather together for an opening caucus.  During that time, the mediator gives his canned speech on mediation.  He will talk about the process, the benefits of settling the case, the uncertainties of trial, and other similar items.  He will then give each of the parties the option to talk about their cases.  Typically, the plaintiff’s lawyer will go first and talk about the plaintiff’s case, and then the defense lawyer will be second.

The opening sessions can be hard on the parties.  While both lawyers are often posturing some, their statements will still contain some truths, and often those truths are hard to hear.  Unfortunately, in some mediations, the opposing lawyer takes those issues and can become overbearing.  I tell most of my clients that they’ll come out of this opening session having heard several things that probably make them bad.  But it’s part of the process.

The opening can serve several purposes.  First, it allows the parties to say their peace.  Some parties just want to be heard.  It also allows the insurance adjusters to evaluate the plaintiff.  In most cases, the adjuster may not meet the plaintiff until the mediation.

However, the opening session also has the potential to drive the parties further apart.  As a result, more and more mediators are starting to do away with the opening.  Instead, they’ll start with the caucuses.

After the opening session, the parties are broken up into two separate rooms.  At that point, the mediator starts engaging in shuttle diplomacy.  He’ll spend time in one room with one party and then go to the other room with the other party, and he’ll continue to go back and forth.

The mediator may begin the caucuses by playing devil’s advocate in each session — asking the parties to assess their strengths and weaknesses, etc.  The mediator may also take information back and forth between the rooms.  But the mediator’s most important job is exchanging offers between the parties.

This process continues until the case settles or it becomes obvious that the case isn’t going to settle.

There are several unique things about the process.  Importantly, the process is confidential in two different ways.  If the case does not settle, then the parties can’t used what was said at mediation at the eventual trial.  For example, during the opening session, the defense lawyer may say, “We know you are hurt, but we don’t think you’re hurt as bad as you claim.”  At the trial, the plaintiff’s can’t try to use the attorney’s admission that “we know you are hurt.”  None of that is allowed in as evidence or argument at the trial, and the mediator can’t be subpoenaed to go to court to talk about those things.

It’s also confidential during the day.  The mediator should not repeat information you tell him to the other side unless you give him explicit permission to share that information.

If cases settle at mediation, it’s usually because both of the parties stretched beyond where they were comfortable.  The plaintiff accepted less than he wanted, and the insurance company paid more than it wanted.

You need to know that the process is tiring.  While you generally just sit in a chair for the day, most clients come out of a mediation worn out.  The process is emotional and takes a toll on you.  In fact, I think that is a key reason why it works.  Clients and adjusters get beaten down to the point that they’re willing to settle.  But that’s okay.  Many mediators will tell you that a good settlement is one where both parties go away upset — the plaintiff accepted less than the plaintiff wanted, and the defendant paid more than the defendant wanted.  That usually is a pretty good indication that the settlement is fair.

You should also know that most mediations work.  Most cases that go to mediation do settle.  But it’s not foolproof.  We always have multiple mediation sessions per year that are a complete waste of time.

Posted on: November 23, 2011 |

Head Injuries and Concussions Can Be Dangerous If Athletes Play Too Soon After an Injury

Brain trauma is nothing to mess with, and players with a concussion must be sidelined until they recover.

Unfortunately, with the current attitude in many sports that playing through pain is a given, too many players are placed back into risky situations despite the presence of concussions and other brain injuries.

This is a problem that occurs in many sports. It could happen in soccer, football, polo, basketball and volleyball as well as cheerleading. Lately, consistent concussions over a period of time and the consequences for athletes have been making the news, and not in a good way. National Hockey League enforcers Wade Belak, Rick Rypien, and Derek Boogaard died as a result of chronic traumatic encephalopathy (CTE).

CTE causes depression and all three enforcers, not to mention other notable players, have suffered the detrimental effects of CTE. Some are still alive to discuss how they cope with the mental and emotional issues they have. Others, like Belak, Rypien, Boogaard are dead. Their brains were examined for the presence of excess tau protein, a telltale sign of CTE.

Concussions happen all the time when kids and older adults are playing contact sports. It’s the manly thing to do, and they accept that they will get hit hard every now and then, including their head. But this is far more serious than the nonchalant reference to concussions being disorienting. It can kill, and the latest research points out that it may not even take a concussion to trigger a CTE.

It was once thought that continuing to play after sustaining a concussion was the major cause of CTE and other dementias. Now, the latest information from a Purdue University study in the Journal of Neurotrauma is that if a player sustains multiple blows to the head, every game played even without concussion symptoms, can still cause a CTE and long-term brain problems, including progressive dementia.

The word is getting out about this and you can see that in the latest court cases. For example, in July 2010, 75 former NFL players sued the league, suggesting they knew about the long-term effects of many blows to the head for at least 90 years, and it did not warn them or adequately protect them. Furthermore, the suit also suggested that it was not until 2010 that the league indicated that concussions can lead to CTE, memory loss and dementia.

You can expect to see an increase in lawsuits in this area of the law as more information becomes available on the causes and effects of CTE. If you have sustained a head injury or concussion, nothing was done about it, and you were put back into the game, talk to an Austin personal injury lawyer about your options, particularly if you are having cognitive difficulties. It is too important not to take action and find out about your legal rights.

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

AAA On The Cost Of Car Wrecks

I’m sure most of us have heard studies complaining about America’s traffic and how much it costs Americans to sit in congestion.  While that’s bad, it’s not nearly the cost of car wrecks.

Earlier this month, the American Automobile Association  (AAA) released a study, Crashes v. Congestion — What’s The Cost To Society?    The study found that the annual societal cost of car wrecks is $300 billion, more than three times the $98 billion cost of congestion.  That comes out to $1,522 annually.

Some of the more detailed findings were even more surprising, particularly the findings regarding traffic fatalities.  In 2009, traffic crashes killed 33,808 people in the US — 93 per day or nearly 4 every hour.  While we’ve made improvements, motor vehicle accidents are still the leading cause of death among ages 5-34 and, in terms of years of life lost, rank third, behind heart disease and cancer.  And based on Federal Highway Administration data, which assigns values to 11 components (including property damage, lost earnings, lost household production, medical costs, legal costs, and pain and lost quality of life), the average cost of a fatality is $6 million.  These are huge costs indeed.

But we owe thanks to AAA for going further than just making the findings.  The report is designed to bring awareness to the problem and to help advocate for increase traffic safety.  That means helping encourage drivers to be more safe, but also advocating to our legislators and other government officials to quit ignoring how big a problem this is.

Third Stage Of A Personal Injury Claim: Depositions

The third stage of the typical personal injury case is the deposition.

The first two depositions usually taken are of you and of the other party.  For your deposition, we will typically be in one of our conference rooms.  Generally, you, me, the other attorney (or attorneys, depending on the number of parties), and the court reporter will be the only ones present.  Sometimes, the defendant’s insurance adjuster will come to observe to see how you do.

In most depositions, the witness (you or the other party) is sworn under oath by the court reporter. The opposing attorney asks the witnesses questions and the court reporter compiles the questions and answers into a booklet. These days, many depositions are also videotaped.

When you are testifying in a deposition, you are sworn under oath, subject to the same penalties of perjury just as if you were testifying before a judge or a jury in a courtroom.

Similarly, your testimony maybe read to the jury or the videotape may be played to the jury, and the judge and jury are supposed to give that testimony the same weight just as if you were testifying live in the courtroom.

The deposition will probably be the most stressful event that you experience in the case up to that point. While the attorneys handle most of the work for pleadings, investigation, and written discovery, it is primarily the witnesses who do the work at the deposition.

Having said that, we’ll do all we can to help make you comfortable so you’re able to do your best.  Depending on you and your case, that may include sending you information about the deposition, meeting with you to prepare for the deposition, sending you example depositions that you can read to get an idea what you might be asked, or even playing some deposition video clips for you to see how depositions work.

This preparation is critical.  If you’re attorney isn’t spending some time with you to help get you ready for this process, you need to ask why and to make sure your attorney is doing what he or she can to protect your rights.

Posted on: November 16, 2011 |

A Lesson From The Texas Worker’s Compensation System

This month’s issue of the ABA  (American Bar Association) Journal has an in-depth look at the Texas Worker’s Compensation System   (Insult to Injury:  Texas Worker’s Comp System Denies, Delays Medical Help).  The article discusses the reforms of the worker’s comp system, the insurance industry’s heavy hand in determining how the system plays out, and the insurance compny’s scheme to deny and delay legitimate claims. 

The article starts out talking about an injured Deputy in East Texas:

As Deputy Sheriff Ed Martin sat by his squad car in a fast-growing pool of his own blood, he called his wife and woke her at 3:30 a.m. He knew he might die from the point-blank shotgun blast that greeted him moments earlier when he knocked on a door for a 911 call in a tiny east Texas town called China.

“It’s pretty bad and I don’t know how it’s gonna turn out,” Martin told his wife as he awaited a helicopter medical evacuation. “Get the kids and meet me at the hospital.”

When they arrived, Martin was on a gurney and covered with a white sheet splotched red. His wife clutched their sleepy 2-year-old daughter to her chest as their sons, 6 and 10, stood at her side.

“I know it was tough for them,” Martin says, retelling the story of that night in June 2006 in the flat monotone of cop-speak. “But I wasn’t sure if I’d make it through surgery and I wanted to at least tell them ‘Hello’ and ‘I love you.’ ”

Doctors say Martin’s life was saved by his ballistic vest and the swift trip to the hospital in Beaumont, near the Gulf Coast and the Louisiana border. But the blast vaporized the skin of his inner arm down to bare muscle and tendons, and tore out the main artery.

A couple of weeks later, Martin got a phone call from an insurance adjuster handling his workers’ compensation claim. He was told the $7,300 helicopter ride was “not medically necessary” and likely would not be covered.

From representing a number of people who have been injured on the job, I can tell you that the experiences outlined in the article are spot on.  For example, I currently represent a worker injured in an on-the-job car wreck.  He went to a surgeon recommended by the insurance carrier, and the surgeon recommended that my client needed surgery.  The insurance carrier denied the claim, and asked the client to be reviewed by another doctor for a second opinion.  That doctor agreed that surgery was necessary as a result of the on-the-job injury.  But the worker’s comp insurance company still refuses to pay the claim, instead, sending the client to another doctor.

Unfortunately, I fear that the changes to the workers comp system are only a pre-cursor to how insurance companies and the legislature treat all injured Texans.  Every legislative session we see new proposed laws that seek to limit the rights of people injured by others, and it seems that every Friday brings a new Texas Supreme Court decision that does the same.

I only hope that people realize the pendulum is swinging too far in favor of insurance companies and that we continue to protect those without a voice.

First Stage of a Personal Injury Lawsuit: The Lawsuit, Service & The Answer

There are generally five stages to a lawsuit, at least from the client’s perspective.  The first stage is the filing the lawsuit stage.  The second stage is the written discovery stage.  The third stage is the deposition stage.  The fourth is the mediation stage.  The fifth is the trial stage.

The first stage is generally the easiest for the client because they don’t typically do anything except wait.

For the lawyers, there are several steps.  We prepare the actual lawsuit to be filed, and then we file it with the relevant court.  The court issues a citation, which is a note to the defendant that the defendant is being sued.

The defendant then has to be served with the citation so a constable or some other process server has to deliver the citation to the defendant in person.  If the process server has any trouble delivering it in person, then we may be forced to look at alternative methods of service.

Once the defendant is served, then we wait for them to file an answer.  The defendant must file the answer by “10:00 a.m. on the Monday next following the expiration of twenty days” after they were served.  What does that mean, you take the day the defendant was served, count 20 days, and then go to the next Monday.  That’s when the answer is due.

Many clients are excited to see what the defendant says.  They shouldnt’ be.  It’s almost all boilerplate language that is not specific to the client’s case.  But it’s a necessary part of the process that we have to wait around for.

After we get the answer, we can start the second phase, the written discovery phase, in earnest.

Posted on: November 5, 2011 |

Second Stage Of A Personal Injury Case: Written Discovery Phase

The second stage of the typical personal injury case is the written discovery phase.  In this stage, the parties exchange requests for information.  There are four standard methods that are frequently used for this:  the request for disclosure, interrogatories, the request for production, and the request for admissions.

The request for disclosure asks each party to provide basic information.  The items requested are specifically set out in our rules of procedure so a party has to provide the requested information.

Interrogatories are questions that the parties ask one another.  Some of the questions are generic that are asked in most cases, and some are specific to your case.

Requests for production are requests that the parties send one another asking for documents relevant to the case.  Like interrogatories, some of the questions are generic, and some are specific to your case.

Requests for admissions are requests that the parties send one another asking each other to admit certain undisputed facts of the case.

You can view other pages on our websites to find more information and examples of requests for disclosure, interrogatories, and requests for production.

This stage of the case is generally easy on you because we do most of the work.  We will get with you to go over the requests and make sure we have the right answers, but by and large, we do the work in the preparation of these responses.  So this is more work than the pleading stage, but not as much work as you’ll have later.

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Stages of a Personal Injury Claim: Gathering Records & Negotiation

In most cases, the second stage of the case is the record gathering phase.  After you complete treatment (when you have healed or you have improved as much as you’re going to improve), the next step is for our office to gather all of your medical records and bills.

In many ways this is one of the most frustrating parts of the case.  Medical providers routinely take 30 days or more to provide your records to us.  And then, once we obtain the records, we often find the names of additional medical providers that you didn’t know about.  We will then have to order those bills and records, which may delay the process another 30 days or more.

Once we have the records, we’ll usually complete a settlement package on your behalf to send to the insurance company.  This package will include a letter with the facts of your incident and injuries.  It will then include a number of attachments as proof, such as the accident report, any expert reports, medical records, and lost earnings records or records.

After sending the package, we’ll usually give the insurance company 2-3 weeks to respond before we start calling them back about trying to resolve the case.  At that point, we’ll start negotiations.  If we can settle at this time, we’ll do it.  If not, the next step is to go forward with the litigation.

Not all cases go through these stages in precise order.  If we don’t think negotiation will be fruitful, we may skip that and just file suit.  Sometimes we’ll send a demand without all the records.  The orders may change, but the general idea is usually close to the same.

Posted on: November 4, 2011 |

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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