In Texas, No Justice For The Injured

The folks at Texas Watch have put together this great story on Texas’s medical malpractice reform.

PERSONAL INJURY: Make The Most Of Your Doctor’s Appointments

For whatever reason, people get intimidated when going to doctor’s offices and they forget to tell their doctors about all of their issues, they’re unwilling to ask follow-up questions, or they’re flustered and forget what the doctor says.  This is a threat to your health, but if you’re a personal injury victim, it also has a big affect on the value of your case.

Here are some tips to help avoid these problems.

• Identify your symptoms. If you’re feeling ill, spend some time documenting the problem in specific terms: what hurts, how much, how long you’ve felt sick, anything that might have contributed to it, and so forth. This will help your doctor make a diagnosis more efficiently.

• Bring your medical history. On your smartphone, or just a piece of paper, keep track of such health-related items as previous illnesses, vaccinations, accidents, and allergies, as well as your family’s medical history as far back as you can go. All of this gives doctors a better context for determining your condition.

• List medications. List all the medicines, vitamins, and supplements you take on a regular basis. Your doctor will need the information in case any of them might be causing unexpected side effects, and to avoid interactions if he or she prescribes any new medications for your condition.

• Prepare questions. Don’t rely on your memory alone. Write down questions as they occur to you before the appointment so you don’t forget any relevant details while talking with your doctor.

• Take notes. Again, you’re better off writing down what your doctor says so nothing slips your mind later. Ask for a printed list of instructions to ensure you’re interpreting his or her advice correctly.


Paradise Lost: Tort Reform Goes International

I love white sand and blue water. 

For example, I’m sitting in my office, and I have 11 pictures on my desk & bookshelf.  Five of those eleven pictures are of my wife and I or my kids on various white sand/blue water beaches.  A sixth is a post card that says “Peace. Love. Sandy Feet.”  

And I particularly love the Cayman Islands.  I made my first trip to Cayman as a kid, and seventeen years ago my wife and I were married on a private stretch of Seven Mile Beach.  Before kids (and while we had two incomes) we made a number of trips back to Cayman.  Now, a week doesn’t go by that I don’t long for my vision of paradise —  Seven Mile Beach, Smith Cove, Rum Point, Stingray City or some other Cayman destination.

But now, I learn that even heaven can be ruined. 

Today’s Cayman News Service has a story that even the near-perfect Cayman Islands are considering tort-reform legislation and caps on non-economic damages in medical malpractice cases.  I don’t know anything about Cayman tort or contract law (maybe I should), but I hope they’re not too quick to jump on the tort reform bandwagon.

The reasons for the sought out reform are familiar to those of us in Texas  (and those at the Lone Star Bar & Grill on West Bay Road) — medical malpractice premiums.

While tort reform has lowered medical malpractice premiums in Texas (thought not nearly as much as Texans were led to believe), at what cost?  A week doesn’t go by that our firm doesn’t have to explain to a potential client that they’re out of luck, even though wronged by a hospital or doctor, due to medical malpractice law and non-economic damage caps.

I just hope the Cayman government slows the train down to thoughtfully consider the consequences of tort reform and potential alternatives that might help alleviate concerns without taking away the rights of Caymanian consumers.

(For those wondering, the remaining five pictures are:  a picture of my family at a UT football game, one picture of my daughter with Mack Brown, two individual pictures of my kids, and one picture of my dog.  I also have an electronic picture frame with pictures of my kids, but most of those pictures are also beach pictures  — with some Disney World pictures thrown in.)

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

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

Posted on: October 8, 2010 |

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 or (512) 476-4944.

Why Should A Bad Driver, A Dangerous Doctor, Or An Unsafe Employer Get A Benefit From Your Health Insurance?

A recent Ohio Supreme Court decision allows defendants in personal injury cases to introduce evidence that the plaintiff’s medical providers “wrote off” charges for the plaintiff’s care.   Most health insurance companies have agreements with medical providers that the medical providers will accept a reduced amount as payment in full for procedures.  For example, in the Ohio case, the plaintiff was billed $21,874.80 for care.  This is the amount that the provider would have charged a patient without insurance.  However, because of the insurance contract between the patient and the provider, the insurance company paid $7,483.91 and wrote off the rest.

The Ohio trial judge said only allowed evidence of the full $21,874.80 in charges, but the Ohio Supreme Court said that the evidence of the write off should have been admitted.  The opinion is here. 

A number of other states have held the opposite.  How do we deal with it in Texas?  Frankly, no one is sure.

Historically, Texas has not allowed in evidence of the write offs.  But in the 2003 legislative session, the legislature adopted a rule that reads:

In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.

What does that mean?  Without defining “paid” or “incurred” the statute is a model of poor draftsmanship.  Despite the statute being around for seven years now, courts still haven’t come to a good conclusion of what it means.  I can tell you that in most Travis County courts the judges aren’t allowing in evidence of the write off, but they will reduce the jury’s award for medical expenses after the verdict is rendered to equal the amount that was actually paid, including insurance payments, co-pays, etc.

The result of this is that in two hypothetical cases — one where a driver runs over an employed person with insurance and one where a driver runs over the same employed person without insurance — there will be two very different results due to the existence of health insurance.

But all of this begs the question, “Why should a bad driver, a dangerous doctor, or an unsafe employer get a benefit from your health insurance?”

When there are write offs, there are two possible outcomes.  First, the plaintiff could be awarded the full amount of the medical charges even though some are never paid due to the reduction.  This would be a benefit to the plaintiff.  Second, the plaintiff could be awarded the reduced amount, which would mean the defendant gets a benefit from the health insurance reduction.

So we’re faced with deciding which of two sides gets a benefit:  the side that purchased health insurance or had an employer purchase health insurance or the side that committed the wrong that resulted in the suit.  If you’re choosing between the two, why should the wrongdoer get the benefit of the insurance?  I’ve had a discussion about this law with a number of different people, and I’ve yet to hear any good reasons why benefits of health insurance should not go to the innocent party, but should instead go to the wrongdoer.  If you have suggestions, let me know.


And a h/t to Nashville, Tennessee injury lawyer John Day & his blog Day on Torts for the link to the opinion.

Should Texas Be The Model For Medical Malpractice Reform?

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.

Texas Medical Malpractice Reform and More Docs, part 2

Last week we posted about the New York Times article on the alleged influx of doctors as a result of Texas’s medical malpractice reform.  Since then, the New York Personal Injury Blog has chimed in (with interesting stats that we wish we had thought to look for), and Bill Childs Torts Profs’ Blog has posted related to the study not once, but twice.  And then earlier this week, Professor Anthony Sebek of the Cardozo School of Law pitched in his two cents.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

Medical Malpractice: Avoid Unnecessary Surgeries

One of the byproducts of the national healthcare debate has been an increasing awareness that medical costs are high, at least in part, because of unnecessary surgeries, tests, and other procedures that have been ordered to simply line the pockets of the providers. Recently, our office has received inquiries relating to unnecessary procedures, including unnecessary back surgery, and even more frightening, unnecessary heart surgery.

For this reason, we advise all of our clients and friends to make sure to obtain second opinions before consenting to major surgeries. There is no question that surgeries improve lives and save lives when they are properly indicated, but caution is always warranted when we consent to place our bodies under the knife.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

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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