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 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.

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’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/.

There have been a number of auto accident/safe driving stories over the last few weeks, but I just haven’t had time to write on them. Instead of ignoring them, I thought I’d put up a brief post touching on each story.

Austin is moving forward with a plan to ban text messaging while driving. The city council has agreed to the ban, and city staff is now charged with coming up with a statute. As you may know, text messaging while driving is one of our most popular topics with the following posts:

* In Study of Truck Drivers, Texting While Driving Proves To Significantly Increase Risks of Wrecks
* More Studies Confirm Texting While Driving Is Worse Than Driving Drunk
* Text Messaging (and Twittering) While Driving
* Car Wrecks -Text Messaging While Driving

Several new driving laws go into effect today. Namely, everyone riding in a vehicle must wear a seat belt, all children under the age of eight and under 4′9″ tall must use a booster seat, drivers in school zones may not use cell phones without a hands-free device.

Also today, it became easier for police departments around the state to take blood samples of suspected drunk drivers without a warrant. Previously, warrants were required unless the person was involved in a wreck that had a serious personal injury. As of today, the law allows warrantless searches when a person is involved in a wreck causing any injury, when the driver has a passenger younger than 15, or when the driver has prior DWI convictions. Interestingly, the APD did its first blood draw under the new law less than thirty minutes after the new law took effect. You can check out the blog of our friends at Sumpter & Gonzalez to get a view from the criminal defense bar.

Capital Metro’s commuter rail is once again delayed. We’ve been following the safety risks associated with the new light rail for some time now.

* Will Capital Metro’s MetroRail Ever Be Safe?
* What A Train Wreck! Literally — New Rail Safety Features Malfunction

That’s it for today. I’ll try and do a little better staying up to date.

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/.

Wrong-way drivers are a bigger problem than one would think. I’ve written a couple of blog posts about wrong-way drivers on the Austin Injuryboard blog, and Des Moines Personal Injury Lawyer Steve Lombardi has written extensively on his Des Moines blog with a 20 part series on the problem. But Austin has largely avoided the problem. Until now.

Last night 24 year old Alex Reyes made a horrible error, entering I-35 the wrong way just south of Austin and causing a head-on wrong-way collision. Reyes died at the scene, and the other driver was taken to the hospital by StarFlight.

At this time, it appears that alcohol did not contribute to the wreck. That’s unusual. Most wrong-way wrecks involve alcohol or elderly drivers.

These wrecks are a huge problem because of their severity. They are most often head-on collisions, and in most instances, involve fatalities. These wrecks are also a problem because they are difficult to prevent. From the driver’s perspective, most of the wrecks are caused by confusion because the driver is either drunk or under the influence of drugs or because the driver is elderly and confused. While some of these wrecks can be prevented by better road designs and some can be prevented by newer technologies, these wrecks are generally hard to prevent.

The wrecks are also hard to avoid from the victim’s perspective. The oncoming driver is obviously unexpected and there is often little time to react.

Nevertheless, there are some things that can be done. In his last post on the subject, Steve Lombardi has several tips on avoiding being a wrong-way driver and avoiding being a victim of a wrong-way driver. I recommend that everyone take three minutes to read his suggestions to help make the roads safer for all of us.

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/.

It is back to school time, with Austin ISD students reporting to class next Monday, August 24th. As the kids go back to school, it’s important for all of us to be mindful of school bus safety. The good news is that school buses are generally safe. National Highway Traffic Safety Administration statistics show that school buses are almost eight times as safe as cars. But things can still go wrong. There are several things that all of us can do to help make school bus transportation even safer.

We need to recognize that most accidents occur in a ten foot danger zone outside the bus. I had a horrible case a few years ago where a school bus driver was impatient, and she took off in an unsafe manner, driving over a young child’s foot. Fortunately, there are some things that can help improve the safety of this zone. Please make sure your kids know the following:

* When getting on the bus, stay out of the ten foot zone until you see the driver’s signal.
* When getting off the bus, look before stepping off the bus to be sure no cars are coming. And once off the bus, move away from the bus and out of the zone as quickly as possible.
* Before crossing the street, take five giant steps out from the front of the bus or until you can see the driver’s face. Then wait for the driver to signal that it’s safe to cross.
* Look left-right-left when coming to the edge of the bus to make sure that traffic is stopped.
* If you drop something near the bus, tell the bus driver. Never try to pick it up because the driver may not be able to see you.

For those of us that are drivers, we need to remember to:

* Watch out for children walking or bicycling to school, especially when we are backing out of a driveway or garage.
* Slow down. Watch out for children walking in the streets or congregating near bus stops.
* Be alert. Children arriving late for school or the bus may be tempted to dart out into the street without properly looking for traffic.
* OBEY THE SCHOOL BUS WARNING LIGHTS.

If we will all obey these rules, maybe the school year will be a little safer.

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/.

Earlier this week, in the post Medical Malpractice, Dead By Mistake, And Wrong-Site Surgery, I promised patient tips for avoiding wrong-site surgeries. I’m carrying out on that promise today. Here are some things that surgical patients can do to avoiid wrong-site surgery:

1. Make sure you know what surgeon is in charge, and communicate with your physician. Most wrong-site surgeries are the result of poor communication.

2. Speak up if you have concerns. It is basic psychology that people are hesitant to question authority figures, such as doctors. But patients and nurses must be willing to question physicians when the patients or nurses have concerns. If something doesn’t look or feel right to you, speak up. We were all told in school that there are no stupid questions. That’s particularly true when your health is on the line.

3. Be patient with the staff. Don’t be upset if each doctor and each nurse ask the same information. A standard protocol requires each staff member to confirm the proper procedure is being done.

4. Pre-mark the spot. If you’re going to have surgery on your right knee, take a permanent marker the night before and mark “NO” on your left knee. You might think this is silly, but a simple Google search turns up studies from physicians trying to pass the blame for wrong-site surgeries on to patients for not properly marking which limb or body part to avoid.

5. Participate in the staff’s marking of the proper site the day of surgery. Make sure that the site is marked before you undergo the anesthesia.

6. Have someone you trust there to be your advocate, and make sure they know which procedure is supposed to be done. Several years ago I had knee surgery to repair a torn ACL. Apparently, I’m susceptible to anesthesia, and I was quickly getting loopy after the first round of anesthesia was administered. Even after that, the hospital staff was trying to have me sign papers. Fortunately, my wife was there to tell them I was in no position to sign documents and to make sure that they continued prepping me for the proper surgery.

Hopefully, you or your loved ones won’t need any surgical procedures, but following these simple steps could help prevent an avoidable medical error.

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/.

Apparently so. For trial issues, I occasionally read psychology based books, and I’m currently reading Dr. Robert Cialdini’s Influence: The Psychology of Persuasion. I’m probably late to the party on this one, but one thing Dr. Cialdini talks about in the book is the “Werther effect.” The Werther effect is based on the principle of social proof, that we use actions of others to decide on proper behavior for ourselves, especially when we view those others as similar to ourselves. The Werther effect is the phenomenon of copycat suicides; the rate of suicides increases dramatically following a well publicized suicide. That’s not really surprising; we’ve all heard of that.

The more surprising and disturbing findings are that publicized suicides are also good leading indicators for a rise in fatal airplane crashes and a rise in fatal car wrecks. As you can see from the chart (from the book), there is an amazing correlation.

Professor David Phillips, who coined the phrase Werther effect, is of the opinion that these increases in fatal crashes are all explained by copycat suicides. When people learn of another’s suicide, a number of people decide that suicide is appropriate for themselves as well. Some commit “run of the mill” suicides, but others, for whatever reason, don’t want their deaths to appear as suicides. Thus, the increase in fatal “accidents.”

But the correlation goes beyond mere numbers. Professor Phillips found that when news stories reported about single suicides, the number of single-victim crashes increased. When news stories reported about multiple-victim suicides, the number of multi-victim crashes increased. When news stories reported about a young person committing suicide, the number of crashes by young people increased. When news stories reported about an older person committing suicide, the number of crashes by older individuals increased.

Professor Phillips also noted that, following a report of suicide, the severity of wrecks increased. For example, the number of people killed in a commercial airliner crash is more than three times greater when the crash occurred a week after a publicized suicide. Likewise, victims of fatal car wrecks that follow a publicized suicide die four times more quickly than normal. Why? In a normal accident, those involved are trying to survive. In a suicide, those involved are trying to ensure that they don’t survive (thus perhaps hitting the accelerator a little harder instead of hitting the brakes).

I find this horrifying. In what we typically think of as a “copycat suicide,” only the deceased dies. But with Professor Phillips’ findings, it’s much more than that; the Werther effect can result in the deaths of countless innocent individuals.

What can we do about it? Like many psychological phenomena, being aware of the issue is half the battle. Dr. Cialdini notes that he changes his behavior after a high profile suicide. He is more cautious in the car and is more reluctant to travel by air. That’s probably good advices for all of us.

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/.