In the last few months, opponents of health care reform have insisted that one key to lowering health care costs is the adoption of “tort reform” by capping the damages that can be recovered in medical malpractice cases.

For some time now, I’ve been urging people to look at the Texas medical malpractice  ”experiment”  to see if those claims were right. In 2003, the Texas legislature re-wrote Texas medical malpractice laws and put in place some of the most restrictive caps in the country. And where has it gotten us?

I’ve argued in the past that the Texas experiment proves that damage caps don’t help people. For instance, since the caps were put in place, the cost of health care has increased for Texas consumers. Similarly, Texans were promised that tort reform would significantly increase the number of doctors in areas of the state that traditionally have trouble finding medical care. By and large, that hasn’t occurred.

Now, a new study by Public Citizen not only helps prove my arguments, but shows that the results are even worse than I imagined. Have health care costs gone down since the adoption of Texas’s tort reform laws? No. In fact, the contrary has occurred. Since 2004, per patient Medicare spending (one of the best indicators of health care costs) has risen in Texas at nearly twice the national average. Similarly, tort reform supporters argue that doctors continually run unnecessary tests because they are scared of being sued. But the data shows that the increase in testing expenses in Texas has grown at a much higher rate than the national average.

Surely health insurance premiums for Texas consumers have been getting better since “tort reform”? Wrong again. Texas premiums have increased 144 percent for families since the adoption of tort reform. And that increase is just about at the national average.

Maybe medical malpractice caps haven’t decreased costs, but the reforms must be allowing new doctors to come to Texas, right? Yes and no. The number of doctors has increased since 2003. But that’s misleading. The growth in number of physicians per capita has increased at a much lower rate than we were growing prior to “tort reform.” Similarly, there is little, if any, difference in the number of doctors in the rural parts of area — the areas that really need doctors. In rural areas, the number of direct care physicians per capita is almost identical to what it was in 2003. And by and large, areas that were without various specialists are still without those specialists.

So what are we getting for “tort reform”? As a Dallas news-reporter noted:

So did Texans benefit from “tort reform”?

Doctors, some.

Insurance companies? A lot.

Most Texans probably couldn’t say.

But if you lost your baby after a difficult delivery, tort reform may have taken away your ability to find answers.

 We now have over five years of data showing that medical malpractice caps don’t produce the promised benefits.  The government shouldn’t take the mistakes that we’ve made in Texas and implement them all over the country.

This weekend, one family (including three young kids) lost their mother and another family lost their mother/grandmother because of  illegal street racing.   Fifty-three year old Maria Gaona De Corona and twenty-eight year old Adriana orales-Catalan were innocently sitting at a bus stop when nineteen year old Erick Armando Nuncio-Moreno blasted towards them, possibly at speeds up to 90 miles per hour, and slammed into them and their stop.  Witnesses have reported that Nuncio-Moreno was engaging in street racing at the time.

This is not the first time innocent Austinites have been victim of this careless conduct.  Almost two years ago to the day, I wrote another blog post about the increasing number of car wrecks Austin was experiencing due to street racing.  Later that year, the Austin Police Department announced that they were going to enforce a crack-down on street racing. 

And two years before that,  another 19 year old was among two people arrested when their street racing resulted in two deaths. 

Are these incidents isolated, or is there a real problem?  I’d like to stick my head in the sand and say it’s not a real issue, but in stumbling across an Austin street racing video, I think the problem is larger than many of us would like to admit.  Even more troubling to me, reading the comments to the video, the readers are posting popular locations for street racing even as late as late 2009, and many of those locations are the same places identified by police back in 2006 as most popular street racing sites. 

I just hope that the APD can get a handle on this problem and put a stop to these needless deaths and injuries.

One of the hot topics in trucking news for the last few years has been that of sleep apnea.  Sleep apnea is a medical condition that prevents its victims from getting a good night’s sleep, ensuring that they are drowsy all day long.  You can imagine the dangers that truck drivers with sleep apnea might pose to themselves or others.  Estimates are that sleep apnea contributes to 100,000 trucking crashes and 1,500 trucking accident related deaths each year.

Yesterday, a Wilwaukee TV station had a nice little story on these sleep apnea problems.  The story cites one study that finds around 50% of all truckers suffer from sleep apnea.  (Other studies find that number closer to 70%, and at least one study found the number to be as low as 17% — about the same as the general population.)    Generally, truck drivers are at a higher risk for sleep apnea problems.  One of the  risk factors for development of sleep apnea is irregular sleep hours.  Since a large portion of truckers prefer to drive at night or at least wake up very early in the morning to beat rush hour traffic, this risk factor clearly hits truckers.  Another risk factor is obesity.  Unfortunately, if a truck driver is driving ten or eleven hours a day, he or she doesn’t leave a lot of time for exercise so a number of truck drivers are victims of this risk factor.

Fortunately, sleep apnea can be detected through medical tests, and there is some movement by the Federal Motor Carrier Safety Administration to require that truck drivers be screened for sleep apnea issues.  And, as the news story notes, some trucking companies are already screening for apnea issues.

For those interested in safe roadways, this is certainly one item to keep an eye on.

This is from another Google search that someone used to find our website.

I’d like to tell you unequivocally that the answer to the question is “No.”  But I can’t  (after all, we do a lot of legal malpractice work also so we know what lawyers are capable of doing).   In truth, it’s really rare than a personal injury lawyer tries to scam a client in a settlement, but it does happen.  (Don’t let that be an indictment of lawyers, in general, or personal injury lawyers, specifically.  Every profession has a few bad apples.  I’d like to tell you lawyers are exceptions to that rule, but we’re not. )

The more important question may be, “What can clients do to protect themselves and minimize the risk that they will be victims of a lawyer’s scam?”  And the best answer is to be informed.  Most personal injury cases are handled on a contingency basis.  In general, the attorney will receive the settlement funds or funds following a judgment and deposit the money in the attorney’s trust account.  Once the funds have cleared, the attorney will disburse the funds to all of the parties entitled to a portion of the settlement funds.  In general, the groups that generally receive part of personal injury funds are: 

1.  The lawyers (who receive their fees and reimbursement for the expenses they advanced);
2. Medical providers (who might have outstanding balances that are paid out of the funds); and 
3. Subrogation interests (paying back health insurance companies,  Medicare, Medicaid, or any other group that may have paid part of the client’s medical expenses and/or paid for any of the client’s lost wages).

After all of these items are deducted, then the remaining funds are disbursed to the client. 

So how do clients protect themselves?  Make sure the calculations are done right and ask for documentation.  Clients should make sure that they understand their fee agreement with their attorneys so that the clients understand how the fees are calculated.  Clients should also not be afraid to ask for documentation to support the deductions.  Reputable personal injury lawyers should not have have any problem providing an accounting of expenses, including showing receipts and/or canceled checks for expenses.  Similarly, for payments made to medical providers or subrogation interests, the clients should be comfortable requesting copies of the checks written to each of these entities.  If the client still doesn’t trust the lawyer, the client may also call the medical providers or the subrogation interests to make sure that the payments were actually made.

Taking these steps will help protect the client and, if the lawyer is trying to cheat the client, help the client figure that out.

From time to time, I look at the ways that people find our website, and this month, someone found the website by a Google search asking whether a personal injury lawyer could take a percentage of a PIP settlement. I don’t think I’ve answered that question on the site, so I thought I would answer it here.

First, some background. Personal Injury Protection (PIP) is a type of coverage that a customer may purchase when the customer is buying auto insurance. Unlike liability coverage (which will pay for damage to someone else if the customer causes a wreck), PIP protects the customer. Like liability coverage, the customer buys an amount of PIP. If the customer buys it, then the minimum limit of PIP is $2,500, but the customer may buy much higher amounts. If that customer is in a wreck caused by someone else, then the customer’s PIP will reimburse the customer (up to the maximum limit that the customer purchased) for medical expenses incurred as a result of the wreck and for a portion of the lost wages that the customer suffers as a result of the wreck.

Back to the question: May a personal injury attorney take a percentage of a PIP settlement? Generally, the answer to that question is “yes,” as long as the fee agreement between the attorney and the client allows for the fee to be taken on the PIP proceeds. The attorney and the client should negotiate that issue up front.

Having said that, many personal injury firms (including ours) do not take a percentage out of a Personal Injury Protection payment. While insurance companies are making claims more difficult, the process is pretty straight forward, and we just don’t feel right taking a fee for that little bit of work.

The one exception to this for us is when we have to file suit against an insurance company to recover PIP benefits. But doing that is very rare, and when we do file suit, we seek an order from the court requiring the insurance company to pay the attorneys’ fees that our clients incur in bringing that suit. (In most cases, defendants are not required to pay attorneys’ fees to plaintiffs, but payment of PIP benefits under an insurance policy is one exception.)

One of the most dangerous parts of any drive — for both motorists and for construction workers — are highway work zones.  Unfortunately, the dangers posed by construction zones do not receive a lot of publicity.   Maybe that is changing.  Yesterday’s New York Times contained a feature article:  Efforts Lag at Making Highway Work Zones Safer.    Some early take-aways from the article:

1. Work zone wrecks are a huge problem in Texas.  Many of the example accidents that the article discussed occurred here.

2. Work zone dangers come in any number of forms. Some of the more popular problems that people need to look for are  improper pavement drop-offs, barricades set up the wrong way, improper traffic stops, parking construction vehicles too close to the roadway, improper marking of construction.

3. There is no nationwide standard for work zone safety, and most regulations are left to the states.  This poses a problem.  For example, the article mentions that in one state, pavement drop-offs need to be addressed when the drop-off is three inches or more while in another state, the drop-offs only need to be address if more than five feet.

4. The problem is only going to get worse.  As a result of the Obama Administration’s stimulus plan, billions of dollars are being pumped into roadway construction projects. 

I’m convinced that this is such a problem that I’m going to devote a few posts to it over the next week or so.  In the meantime, I’d love to hear comments or suggestions from any of you that have experienced close calls in construction zones.

In the last few days, a couple of people have found our website by making Google searches asking what to do if they’re still hurt after their personal injury settlement. 

The answer in Texas is that they are probably out of luck.  We continually warn prospective clients and injured persons that one of the biggest mistakes they can make in pursuing their personal injury claim is settling too soon.   You only get one shot at your case — once you settle a case and sign a release, the case is over, and you can’t recover any additional funds from the defendant even if it turns out you’re hurt worse than you thought.  As a result, you generally shouldn’t settle your case until you know the outcome of your injuries.  In other words, don’t settle until you know that you’re completely recovered or you’ve been told by your doctor that you have made as much progress as you’re going to make and that you have permanent injuries.  (The one big exception to this rule is when there is not enough insurance to go cover all of your injuries —- then you usually might as well settle for the proceeds available.)

The one instance when the injured person might not be out of luck is when an insurance adjuster has used fraudulent or false statements to settle the case.  It seems that many adjusters are now trying to settle cases within a few days of the incident, and in some of these cases, the adjusters are making false statements to induce the injured person into settling the case and signing the release.  In that situation, the injured person may be able to have the release voided, allowing the injured person to pursue the full value of the claim.

I’ve long warned injured persons about hiring lawyers who engaged in a high-volume mill practice. Now, a Stanford law professor has taken a hard look at settlement mill law firms. Professor Nora Engstrom has authored Run-of-the-Mill Justice in the Fall 2009 issue of the Georgetown Journal of Legal Ethics.

“Over the past three decades, no development in the legal services industry has been more widely observed and less carefully scrutinized than the emergence of firms I call “settlement mills”—high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial. Settlement mills process tens of thousands of claims each year. Their ads are fixtures on late-night television and big-city billboards.”

In her article, Professor Engstrom interviewed forty-nine past and current settlement mill attorneys and non-attorneys to find out how they worked.

First, what is a settlement mill? Professor Engstrom says they generally have ten characteristics:

(1) They are high-volume personal injury practices. Conventional personal injury attorneys have around seventy cases open at any one time and serve approximately 110 clients per year. Settlement mill attorneys often triple that — juggling 200 to 300 open files on any given day. (Our firm tries to limit ourselves to twenty to twenty-five open cases at any one time.)

(2) They engage in aggressive advertising from which they obtain a high proportion of their clients. Most conventional firms rely on referrals from other attorneys or prior clients, but in settlement mills, almost all cases come from advertising. For settlement mills, obtaining a client via an attorney referral is said to be somewhere between rare and unheard of.

(3) They epitomize “entrepreneurial legal practice.” At settlement mills, it is assumed that claims will be straightforward. Standardized and routinized procedures are then designed and employed in keeping with that assumption. Efficiency trumps process and quality. Important tasks are delegated to non-lawyers. Factual investigations are short-circuited or skipped altogether. And negotiating with insurance adjusters and brokering deals is prioritized over work that draws on specialized legal education.

(4) They take few — if any — cases to trial

(5) They charge tiered contingency fees, fees that increase once cases are filed. While  this sounds good in theory, many attorneys used these increased fees to bully clients into accepting settlements.

(6) They do not engage in rigorous case screening and thus primarily represent victims with low-dollar claims.

(7) They do not prioritize meaningful attorney-client interactions. Attorney-client interaction is minimal and, when it does occur, tends to be paternalistic rather than participative. Except for agreeing to accept the ultimate offer, clients play little role in the dispute resolution process.  Clients met with their lawyers when the retainer was signed at the beginning of the representation and when the settlement check was delivered at the end.

(8) They incentivize settlements via mandatory quotas or by offering negotiators awards or fee-based compensation. These requirements and rewards put the focus on the number of files closed or the aggregate returns, as opposed to obtaining a fair value for each individual client.

(9) They resolve cases quickly, usually within two-to-eight months of the accident. Studies suggest that, even if no lawsuit is filed, around one year elapses between the accident and the settlement if a claimant is represented by counsel. At settlement mills, in comparison, cases are sometimes resolved in little as two months and usually within eight.

(10) They rarely file lawsuits.

So what’s the problem with the mills? Professor Engstrom concluded that those with meritorious claims likely get less than they would if not for settlement mills. Why? First, fast settlements depress the value of the claims. Second, settlement mills rarely file lawsuits, and the acts of not filing is correlated with lower settlements. Third, settlement mills commonly impose quotas or incentives on negotiators, which put the emphasis on turning claims over, rather than maximizing their value. Fourth, attorney reputation for going to trial affects bargaining. Because settlement mills have a reputation for avoiding trial, they have less leverage in their dealings with insurers and are less likely to obtain top-dollar.

What did the attorneys say? Professor Engstrom quoted one defense lawyer as saying that he was personally aware of cases I think were settled for $10,000, $15,000, $20,000 less because the adjuster knew the attorney handling the case was a settlement mill.

Even the settlement mill lawyers confirmed they were leaving clients’ money on the table. Former settlement mill lawyers reported that offers they received for comparable cases improved upon departing the settlement mill and joining a more conventional law firm.

You need to learn from this study.  If you or a loved one is hiring an attorney following an accident, I urge you to consider what a settlement mill firm might do to the value of your case. I also encourage you to purchase Professor Engstrom’s article for the $3.50 purchase price. If it helps you make an informed decision on hiring an attorney, it will be money well spent.

I’ll be honest.  I groaned when I saw this first question listed for our I-35 blog group.  The first reaction I had to writing about this question was that it was too similar to obnoxious billboards I’ve seen for personal injury lawyers in Dallas or Houston.

But then I thought back to some of my experiences.  Having done this a while, I’ve had numerous cases where I have been the second or third attorney to represent the client.  The client comes to me with a myriad of complaints:  their previous lawyer wouldn’t return calls; the lawyer tried to settle the case before it was ready to be settled; the lawyer wasn’t treating them fairly, etc.

And in most of those cases, I try and ask how the client found the first attorney.  And the source of the first lawyer is usually something like television or yellow pages ads.  I visibly groan at the responses.  I know that relying on those ads is a terrible way to pick an attorney.

But most of the general public doesn’t.

In hindsight, this may be the most important question we could answer for you.  If we can help you can make a good decision in hiring a lawyer — help you avoid those lawyers that are looking out for their interest and not yours, then this series is a success, in my mind.

So back to the question:  After you’ve been in a wreck or accident, how do you find a good personal injury lawyer?

I think there are two parts to this question — getting names of a lawyer and then evaluating the lawyer once you have names.

How do you get names?  The best way to get names of a lawyer is to ask for a referral.  Specifically, ask any lawyers, friends or other professionals you know for referrals.  If you know any lawyers, ask them first.  Austin is a fairly small legal community, and most lawyers will know two or three good personal injury lawyers if you ask them for a referral.

But not everyone knows a lawyer.  If you don’t know a lawyer, ask your friends or family members for suggestions.  These people are looking out for you, and if they have had an experience with a personal injury lawyer, I think you can generally trust them to give you a good name.

If you don’t know any lawyers or have any friends or family members that have used a personal injujry lawyer, then ask other professionals.  Many professionals will have worked with some attorneys and might be able to help.

Once you get a name, how do you evaluate whether the attorney will be right for you?  There are several things to consider.  First, make sure your attorney regularly practices personal injury law.  This is important for two reasons.  First, insurance adjuster keep a “book” on personal injury lawyers.  They know the attorneys in Austin that regularly practice in the personal injury area, whether the lawyers are willing to file suit and pursue a case, etc.  If you hire a lawyer that doesn’t regularly practice in the personal injury arena, or a lawyer who has a reputation for always settling early, then you are compromising your claim.

Additionally, personal injury is a tricky part of the law.  There are a number of special rules that apply to personal injury cases that don’t apply to other areas of litigation.  If the lawyer doesn’t regularly practice personal injury law, it is unlikely that the lawyer is up to date on all important areas of the law.

Next, find out who in the office will be working with you.  The number one complaint against lawyers is that lawyers don’t keep clients informed about what’s going on.  You need a strong commitment that the lawyer you retain will be accessible and not farm your case out to some staff member.

Finally, make sure you and your attorney get along.  For a successful case, you and your attorney will need to be in regular contact with one another.  A lawsuit is unpleasant enough as it is; it can be downright painful if you and your attorney don’t get along.  And it’s okay not to get along.  For various reasons, some people just don’t “click” with one another.  If you get that feeling, tell the lawyer that and ask them to provide names of other personal injury attorneys in the Austin area.  The attorney’s willingness to agree to that request may tell you a lot about that attorney too.

As I said earlier, I think this is an important question.  To read more thoughts about it from the other attorneys in the group, click the links below:

Steve Lombardi, Des Moines, Iowa:  Finding A Personal Injury Lawyer For An I-35 Car Accident

Mike Bryant, Waite Park, Minnesota:  Why Hire A Lawyer After An I-35 Collision?

Thanks for reading, and I’ll update with posts from other lawyers in the group as they are written.

Brooks Schuelke

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Many of our serious injury cases are the result of car or trucking wrecks on I-35.  Because it’s an interstate, with more cars and trucks traveling at higher rates of speed than typical roads, I-35 has more opportunities for drivers, construction workers, and others to be injured in accidents.  But it’s not a problem that’s limited to the Austin area.  The I-35 dangers start at the US-Mexico border in Laredo and continue up through the nation to the US-Canada border.  To try and bring a different perspective on these issues, I am teaming up with several other attorneys along the Interstate 35 corridor for a new blog series.  Over the next month or so, we’ll all answer typical questions that we are repeatedly asked by those injured in car or trucking wrecks, with an emphasis on issues as they relate to I-35.

The other attorneys that will be joining me on this little journey are:

Noble McIntyre and Jeremy Thurman from Oklahoma City, Oklahoma

Steve Lombardi from West Des Moines, Iowa

Mike Bryant from Waite Park, Minnesota.

One thing that excites me about this project is that it gives our clients and potential clients the opportunity to learn a lot.  Instead of getting one lawyer’s perspective on a question, you’ll have the benefit of answers from four or five different lawyers across the country.  And I always believe that the best way for personal injury victims to protect themselves from insurance adjusters and even other attorneys is to be as informed as possible.

I hope you enjoy the series.  If you have any questions you would like us to answer, please let us know.

Brooks Schuelke

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.