Three Things That Are Going To Annoy You About Your Personal Injury Case

I wish I could tell you that your personal injury case will go exactly how you like it and as smooth as you like it.  But form doing this for over twenty years, I know there are at least three things that you’re going to frustrated about at some point.

1. THE TIME IT TAKES TO GET YOUR MEDICAL RECORDS AND BILLS

Once you have finished receiving treatment from your doctors or other medical providers, the next step is for us to gather your medical records and bills.

I know what you’re thinking, “Why do you need to to that?  The doctor gave me all my records and bills, and I’m giving them to you.”  Unfortunately, you don’t have everything.  For example, if you went to the hospital, you were probably given 5-10 pages of “records”.  You think that’s all there is.  But when we order the records from the hospital, we could get 200-300 pages just for a one time visit.

So we need to get the full records and bills and get them in a format that the insurance company will use.

Unfortunately, this process takes time.  For doctors and medical providers, giving lawyers their patients’ records is way down on the list of things they want to do or spend money on. I’m not blaming them for this, but it’s just part of the process.  The result is that what seems like it should be easy takes a LONG time.

In fact, it takes so much time that lawyers who do what we do had to go to the legislature and state agencies to ask for rules to try and put time limits on how long doctors have until they turn over the records and bills and even limit the amount that they can charge for the records.

We’ve tried a number of different ways to speed this up, but the result is that the process just takes a lot of time.  You’ll be frustrated with the amount of time, but just know that we’re working hard to get them in, and we have to let the process play itself out.

2. SUBROGATION

When your health insurance, Medicare or other entities pay for benefits that relate to the wreck,  most of the time, you have an obligation at the end of the case to pay them back.

A lot of people are frustrated learning that they have to pay the insurance companies back.  But it’s a requirement set out in almost all insurance policies, and even written into law in the case of Medicare, Medicaid, and other governmental providers.

The other frustrating thing about subrogation is that it takes time.  At the end of the case, we’ll negotiate with them to try and minimize what you have to pay back.  But by its nature, we can’t start those negotiations until the case settles because all of these companies want to know the settlement amount, fees, etc. to determine the amount of reduction they will provide.  So in most cases, the case will be over and we’ll still be negotiating with the various providers.  Indeed, in the case of Medicare and some others, the negotiation with the subrogation provider can take longer than the negotiation with the actual insurance company.

3. YOU MAY BE CONTACTED BY OTHER LAWYERS

In the past, some injury lawyers would settle cases, but not pay the hospitals for the outstanding bills. So the hospital lobbyists went to the legislature and had a law passed that gives them a lien on the victim’s cases.  That means the hospital can file a notice in the county deed records, and if the hospital isn’t paid back at the end of the case, the hospitals can sue the insurance companies or the lawyers involved directly.

Some letters may try to even scare you by saying the insurance company will include the hospital on your settlement check. In theory, insurance companies can include the hospital on a check to protect themselves from being sued.  But normally, this isn’t a big deal at all. It’s standard that we’ll settle or resolve cases, negotiate with the hospital, and then pay them a fair amount. This is typically done by the insurance company writing the hospital a check for the negotiated amount (to protect themselves) and then the insurance company writing a second check to you and our firm for the rest of the settlement.  Usually this is an easy negotiation, though in rare cases I end up suing the hospital because they’re seeking an unreasonable amount. But it happens in a lot of cases.

Unfortunately, one byproduct of this system is that a number of personal injury lawyers now hire people to search the county’s  records and find cases where the hospitals file liens.  Then the lawyers write the patients letters that make the lien sound scarier than it really is because the lawyers are trying to solicit new cases for themselves.  I wish the State Bar would regulate these lawyers better because I don’t feel like they’re being completely truthful with the public and they cause people stress and anguish about things that are typical.

So that’s why you may get a rash of letters from lawyers.  They’re just trolling for new business.  They’re not bill collectors.  Your account isn’t in collections.  And this isn’t something that’s unusual or a problem.  We deal with it a lot.  Of course, these guys don’t tell you that it’s normal because they’re trying to scare people into calling them for new business.

 

Texas’s Texting While Driving Ban Goes Into Affect Today. Will It Make You Less Safe?

Today, Texas’s new texting while driving ban goes into affect.  For the first time, Texas will have a state-wide ban.  A violation of the ban is a misdemeanor, with fines between $25 and $99 for first time offenders and $100 to $200 for repeat offenders.

For years, I’ve been critical of Texas officials for their failure to adopt a state-wide texting while driving ban.  So, I should be excited that a new ban is going into affect, right?

I’m not.  I think a good argument can be made that Texas’s ban makes many of you less safe.

What do I mean?

While the state refused to take the lead on this critical safety measure, many of our cities and towns didn’t.  Prior to the state-wide ban, over forty Texas cities and towns, including Austin and San Antonio, had their own limits on the use of cell phones.  Many of these bans are more strict than the Texas ban in two ways.

First, the Texas ban merely limits the use reading, writing, or sending an electronic message  (it’s not clear if this just covers texts and emails or will it cover reading websites as well?). Many of the local ordinancesgo further than that.  For example, many cities like Austin not only banned texting while driving, but also banned the use of phones (and other handheld devices) without a hands-free system (like a bluetooth headphone).  So many of these local ordinances banned more types of activities that have been found to be unsafe.

Second, many of the local fines are more expensive than the new Texas fine.  For example, in Austin, the fine for a first offender starts at $200, and the maximum fine can go up to $500.  In Kyle, the fine is between $100 and $500 for a first offense, between $200 and $500 for a second offense, and $500 for a third offense.

Unfortunately, the new Texas law also contains a pre-emption clause that overrides the local laws “relating to the use of a portable wireless  communication device by the operator of a motor vehicle to read, write, or send an electronic message.”

That means that for many cities throughout the state, including Austin, the punishment for texting while driving — the fines—are becoming more lenient.  It may also mean that the more broad bans requiring hands-free devices may also be overturned — we’ll have to wait to see how courts interpret the statutes.

But regardless of this, for many parts of the state,  including Austin, there is actually less of an incentive to text and drive today than there was yesterday.

This is a mistake.  The dangers of texting while driving are well known, and it is a factor in probably more than half of the car wreck and trucking accident cases that our firm handles.  Studies show it is more dangerous than drinking and driving.  While I applaud the state for finally acting, they should have allowed those communities who want even stronger fines to keep those fines in place.  We want to discourage as much texting and driving as we can.

If you want to read the Texas law, it is available here.

I’ve Handled Dog Attacks, But A Pig Attack? What’s The Law On That?

Over the years, I’ve handled a number of dog attack cases, but last week, I read a story about a 3 year old Alabama girl who was injured when she was attacked by a neighbor’s pig.

I don’t want to make light of the story because it sounds like the girl suffered severe injuries.  But it did get me wondering what the law is on pig attacks.  Would a claim against a pig owner be the same as a claim against a dog owner?

Trying to satisfy my curiosity, I did a quick search on Westlaw to see what the law on this issue says.  Amazingly, I don’t think there are any Texas cases involving pig attacks (though I did see something that said pig bites are fourth most common bites reported by vets behind cats, dogs and horses).

After some shrewd legal analysis, I’ve come to the opinion that elements of a pig attack case are the same as a dog attack case.  I’ll spare you the details, but know that what a person making a claim here could probably pursue a strict liability claim if the pig has a history of violence or dangerous behavior or a claim based on the pig owner’s failure to properly handle and secure the pig.

If the story is correct, that the pig has a history of getting out and causing trouble, then the victim probably has a good chance of prevailing under Texas law.  But this actual case happened in Alabama.  Who knows what the law is there (and I’m certainly not going to check)?

What To Make Of The New NFL Brain Injury Study

Yesterday, a new study on brain injuries in NFL players that was published in the Journal of the American Medical Association made news.

As you may have heard, the study looked at brains of 111 former NFL players, and 110 of the brains had evidence of chronic traumatic encephalopathy (CTE).

I’ve been trying to process the results, and I’ve reached a couple of conclusions.

First, you have to be careful with the results.  The only way to truly test for CTE is by doing an autopsy once the person is deceased.  In this case, all of the brains in the study were donated by the players’ families.  Obviously, most of the brains would have been donated because the family had a concern about the player’s condition before the player’s death.  Even the doctors who did the study confirm this.

Second, regardless of what I said above, the numbers are startling.  This is a lot of players who have had problems, and it’s something that we can’t ignore.  For a long time, there was a debate about whether CTE was even a real disease.  These numbers, along with other similar research, show that ti is a real problem.

Third, for safety’s sake, we need to make sure that we’re not limiting the focus to the NFL or even football.  With regards to CTE, it isn’t limited to football, soccer and hockey and at least one former major league baseball player have been diagnosed with CTE.  We need to looking at ways to make all sports safer in terms of protecting the brain.

Beyond that, we can’t let our attention be focused on CTE and sports.  Many, many more people will sustain severe brain injuries in car wrecks and falls than in sports.  We need research to continue to help us determine how brain injuries can be limited in the average person and not just in the athlete.

For more information on the new study, you can read the following articles:

 

U.T. Looking To Cut Football Brain Injuries

My University of Texas football team hasn’t been on the cutting edge of winning the last few years (and we’re hoping that’s changing), but we are on the cutting edge of trying to protect players from brain injuries.

It’s no secret that an increasingly difficulty issue in football is the rise (or at least heightened awareness of) brain injuries suffered by players.  There are some things that can be done, such as teaching proper technique and making sure that helmets are state of the art, but until now, what a school or coach can do to protect kids has been largely limited.

Now however, Riddell and Texas are taking a big step towards safety by including monitoring devices in players’ helmets.  Starting this year, all University of Texas players’ helmets will have sensors that send signals to the trainers’ hand held devices when the player sustains a significant hit in the head.  The trainer can then monitor the player and look for signs of a concussion or head injury.  Texas will be the first Power 5 school to provide this technology to every player.

This is important.  While concussions are bad, one of the biggest risks in sports is known as second impact syndrome.  Second impact syndrome occurs when a player sustains a significant blow before the brain has healed from the original concussion.  The second impact, which can occur minutes, days or weeks after the first concussion, typically causes much more severe problems than the original impact.    While some concussions are obvious, some people don’t show signs of symptoms until hours or even days after the event.  Thus, the ability to monitor the impact of a hit in real time, will make it much easier to look for problems in real time, minimizing the risk of second impact syndrome.

Now, if we can only find some technology to help us find a few more wins each year…..

 

 

Emergency Room Not Diagnosing A Concussion, Revisited

A few months ago, I wrote a short article describing why emergency rooms do such a bad job at diagnosing concussions/brain injuries: The emergency room didn’t say anything about a concussion. Does that mean I don’t have a brain injury?

Recently,  I came across a study that really quantifies the problem I discussed.

The study, primarily led by several doctors from the University of Washington, was laid out in an article entitled Accuracy of Mild Traumatic Brain Injury Diagnosis, which was published in the August 2008 issue of the Archives of Physical Medical Rehabilitation.

The article starts by noting:

Accurate identification and diagnosis of a mild TBI is the first step toward providing clinical care.

Unfortunately, despite the accurate diagnosis of a brain injury being so important, the study found that emergency rooms are not very good at making the diagnoses.

The study looked at 197 patients who had been to emergency rooms.  They looked at medical records, and in some cases interviewed the patients, to determine whether they patients had a brain injury, as defined by the Centers for Disease Control mild Traumatic Brain Injury work group.  The researchers then took those patients who were diagnosed with a brain injury and looked at the patients’ emergency room records to see what was diagnosed in the emergency room.

The results were startling.

The emergency room doctors failed to make a diagnoses of a head injury or concussion in 56% of the patients who were later determined to have a brain injury.

That’s a stunning number.

There are some things that can help improve the accuracy of the emergency department physicians.  If the patient complained in the emergency room about confusion, feeling dazed, or having memory problems, then the diagnoses was more accurate.  However, even with those findings, the emergency department still missed the diagnoses on 37% of the patients.  That’s still a substantial number of patients who have a brain injury that doctors are missing.

Oddly, the emergency room physicians’ diagnoses weren’t dramatically better even when the patient reported a loss of consciousness — which should be a red flag.  The doctors still failed to make the proper diagnoses of a head injury in about 50% of the patients who had told the doctors that they had lost consciousness.

This means that you have to be diligent about noticing symptoms.  I’ve repeatedly written that misdiagnoses is a problem and that the best way to find the problem and to get proper treatment for the problem is for someone close to the person to look for symptoms.

To learn more details about potential symptoms, you can read our other articles:

If you or a loved one has sustained a brain injury in an accident, please call us at (512)476-4944 and we’d be happy to see if we can help.

Brain Injuries: New Study Finds Fewer People Recover From Post-Concussive Syndrome

The April 2017 issue of the Journal of Neurotrauma reports on a new study about post-concussion syndrome.

The study followed 110 patients who had post-concussive syndrome symptoms for more than three months, and the findings were stunning.  Of those patients, only 27% made a full recovery.  Of the 27% who made a recovery, 67% made a recovery within the first year.  And no one who had symptoms over three years ever made a recovery.

For those groups that didn’t recover, the continuing symptoms (in order of frequency) were:

  • Headache
  • Difficulty concentrating
  • Fatigue
  • Dazed/don’t feel right/in a fog
  • Pressure in the head
  • Sensitivity to light
  • Difficulty remembering events
  • Neck pain
  • Sensitivity to noise
  • Depression/sadness
  • Insomnia/sleep disturbance
  • Irritability
  • Anxiety
  • Frustration
  • Feeling slowed down
  • Noise in the ears
  • Vision changes
  • Lightheadedness
  • Imbalance
  • More emotional
  • Dizziness
  • Nausea
  • Increased sensitivity to alcohol
  • Confusion
  • Personality changes
  • Vivid dreams
  • Numbness
  • Vertigo
  • Panic attacks
  • Disorientation
  • Stomach ache
  • Loss of appetite
  • Slurred speech
  • Seizures
  • Vomiting

These findings are significant to our brain injury cases.

Most insurance companies argue that brain injuries typically heal themselves and symptoms disappear after six months or a year. The insurance companies use that argument to reduce the value of the claim.

This study refutes that.  If a client has had symptoms lasting more than three months, then this study is evidence that the client will likely never make a full recovery.   Obviously, if an injury is permanent then the value of the case is higher.

The study is also interesting because it has a good list of symptoms of a brain injury.  It’s important for people to know these symptoms to help them recognize when they might have a brain injury.

Another interesting fact was the distribution of the symptoms.  Generally, post concussion syndrome has three classes of symptoms:

  1. Cognitive symptoms — affect your thinking
  2. Affective symptoms — affect your mood (depression, irritability, etc)
  3. Somatic symptoms — separate symptoms (headaches, light sensitivity, etc).

The study found that the persisting symptoms were quite evenly distributed between the three classes of symptoms.

 

 

Thanks For Your Support – Here’s Some Of Who You’re Helping

The support we get from our clients and referral sources allow us to support a number of other good causes both in Austin and around the world.  Today, I thought I would let you know about some of the programs you’re supporting.

  1. Friends of Scouting

As some you know, my son is a Boy Scout, and he’s had a number of great experiences through scouting.  He’s been to summer camps in California and Maine, and this year, he and I are going on a 10 day backpacking trip at the Scout mecca, Philmont Scout Ranch in New Mexico.

But we also know that too many kids don’t get those opportunities.  As a result, for the last few years, our firm has made significant donations to Friends of Scouting.  This group helps support Scouting opportunities for low income kids throughout Central Texas.  I hope some of these kids will get the same benefits that my son receives.  You can learn more about Scouting in the Central Texas area by clicking the link here.

 

  1. Justice For Our Neighbors

 Justice For Our Neighbors is a United Methodist Church based non-profit that provides free or low cost legal services on immigration related issues to immigrants.  I was one of three co-founders who helped bring JFON to Austin three years ago.  Since that time, JFON has served numerous clients.  Now, the group specializes in helping unaccompanied minors learn about and exercise their rights.  While I acknowledge that immigration is a bit controversial, as a lawyer, one thing I’m clear about is that rights matter.  When our country grants people rights, the people should be able to exercise those rights.  And that’s what JFON does — helps people exercise their rights.

 

  1. Free Store Austin

The Free Store is another United Methodist related non-profit that I helped start and that you have helped us support.  Like it sounds, it takes items and gives them away to anyone who needs them for free.  But the store is about much more than that. The store creates opportunities for volunteers to meet and get to know people who are very different from the volunteers.  Creating a diverse community is really what this group strives to create.

  1. Zoe Helps

Zoe is an international group that helps orphans in Africa and other countries become self-sufficient.  Zoe organizes the orphans into working groups of 60-100 kids.  The organization then trains the kids about health, entrepreneurship, and more.  Zoe also helps the kids choose and start businesses.  About 85% of the kids who complete the three year program are self-sufficient, help support other kids, and are leaders in their communities.  In the last couple of months, Zoe was named one of the 100 most innovative non-profits in the world.

  1. Seedling Foundation

The Seedling Foundation is a local non-profit that provides mentors to children whose care-givers are incarcerated.  Mentors meet with the kids once a week to check in the with the kids and to be a consistent, stabilizing force in the kids’ lives.  This is my 10th year to be a mentor through the Seedling Foundation, including my eighth year with my current mentee.  I started mentoring him in Pre-K and have now moved with him up to middle school.  I enjoy the mentoring process and encourage anyone with a little free time to get involved with Seedling.

There are many more things you’re helping us support, but these are some of the biggest.  We hope you’ll continue to think of us and refer your friends and family members so we can continue to do this good work together.

Thanks,

Brooks Schuelke

 

 

Posted on: May 1, 2017 |

Dog Attacks/Dog Bites: Which Dogs Attack Humans The Most?

This is an older article, which was recently pointed out to me, tries to identify the dog breeds that have attacked the most.  The results probably won’t surprise you much.  According to the article, the top 5 breeds for most attacks on people are:

  1. Pit Bull
  2. Rottweiler
  3. German Shepherd
  4. Siberian Husky
  5. Akita

These results would follow what we’ve found in our practice.  Most of the attacks we see involve either Pit Bulls or Rottweilers.  The worst dog attack case we worked on involved a Bull Mastiff, another large dog that has been bred to be a guard dog.

There is a caveat in this article and in my findings.  The article is based on a study about reported dog bites or dog attacks.  I’m sure there are many smaller breeds who are also involved in a significant number of bites or attacks.  But because these dogs don’t do the damage that these dogs can do, the bites or attacks may go unreported.  Similarly, when we are asked to represent victims of dog attacks, they are usually from serious injuries, more likely to be caused by big dogs.

To see if others agreed with the dangerous breed list, I did a quick Google search to see what others might be saying.  In doing so, I found a couple of results that were a bit surprising.

This article from Europe found that labradors were most likely to be involved in attacks.  Part of this might have to do with the sheer number of labradors as pets.  In fact, the article noted that the labrador was the most popular dog in Europe.

This article, also from Europe, found that police officers were more likely to be bitten by Jack Russell Terriers.

These articles only go to show that persons should be cautious around any types of dogs.  In the wrong situation, dogs of any breeds can attack and cause significant, and perhaps fatal, injuries.

My MRI or CT Scan Was Negative. Does This Mean I Don’t Have A Brain Injury?

This is another question I’ve recently received from potential clients.  They were involved in an incident — a car wreck, a slip and fall, or something similar.  They went to the ER, and the ER performed an MRI or a CT san looking for problems, but scan came back negative.  Does this mean that the was no brain injury?

Absolutely not.

While an MRI or a CT scan can find some brain bleeds or some damage, they don’t find most problems.  As a result, the vast majority of people who have brain injuries have a normal (what we call negative) MRI or CT scan.

Indeed, while insurance companies sometimes try to argue about claims when you have a normal MRI or CT scan, virtually all scientific literature and all neurologists agree that you can still have a normal scan.  Not only that, virtually all neurologists will agree that most of the patients they see for brain injuries have normal scans.

So if you feel like you’re off or your family members are telling you that you’re different after a car wreck, a fall, or another event, don’t rule out a possible brain injury just because you had a normal CT scan or MRI.  You may very well still have a mild traumatic brain injury that needs to be treated

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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