A constant issue I hear from personal injury clients is that doctors often do a poor job communicating with patients about the patients’ injuries and their course of care.

But with the internet, there are a number of ways for clients to learn about their injuries and treatment themselves.  It is the internet, so some of the information is horrible, but much of it is quite good.

One source that I have found helpful is Up To Date (www.uptodate.com). 

Up To Date is an online medical encyclopedia.  It is written and edited by doctors, updated frequently, and footnoted very well so you can follow up on studies.  It is designed to be used by medical professionals — hospitals, clinics, doctors, etc.  It is set up so that it provides basic information about conditions and then answers many of the most popular clinical questions about conditions.  When you look at the website, you’ll see that it receives good reviews from doctors and medical facilities from all over the world. 

But it also markets to patients.  Up To Date currently has a subscription option where you can have unlimited access to the website for 7 days for $19.95 or 30 days of unlimited access for $44.95.

If you have a condition that you want to learn more about, you might consider paying these fees so that you really understand your condition and your future.

Like many of you, I’ve never been to a hockey game.  But despite that, we have much we can learn from the National Hockey League.

You see.  The NHL has a concussion problem.

The NHL’s most recognizable player is young star Sidney Crosby.  But last January, Sid the Kid took a high hit and sustained a concussion.  His concussion caused him to miss half the 2010-2011 season, the 2011 Stanley Cup playoffs, and the first quarter of the 2011-12 season.  He finally came back, but after eight games back, Crosby sustained another hit and symptoms of concussions and is again out indefinitely.

Crosby isn’t alone. In about a quarter of the season, 23 different NHL players have been limited by concussions.

What I take from this is that the NHL, unlike the NFL or some other sports, take concussions and head injuries seriously.  And I think it’s important for all of us to learn that.

I frequently tell people that the thing that scares me the most about our car wreck or other personal injury cases are the potential head injuries.  They are difficult to diagnose, and the consequences can be life-altering. 

So if you or a loved one is hurt in an accident, make sure you’re on the lookout for potential signs of head injuries.  Don’t dismiss those headaches, changes in temperament, feelings of confusion, nausea or vomiting, or fatigue.  Take them seriously, and seek the care you need.

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

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

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

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

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

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

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

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

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

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

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

I’m spending a little time today preparing for a jury trial in a couple of weeks, and due to some circumstances, it got me thinking about the things about a case that a jury doesn’t get to know. 

These issues sometimes come up when talking to new clients. One of the common comments I hear is, “If the jury just gets to hear about X then that will really help our case.” 

But  many times, the jury may not get to hear about X.

There are a number of rules that limit what information we get to tell a jury.  Sometimes the rules exist to prevent the jury from hearing information that courts believe is irrelevant, and sometimes it is to prevent the jury from hearing information that is deemed to be too prejudicial to one side or the other.  Regardless of the reason for the rule, there are a number of limits.  Some of the more popular limits are listed below.

1.  Insurance.  In most personal injury cases, the defendant (the party that did something wrong and is being sued)  has insurance to pay for the lawyer and that will pay for any judgment rendered against the defendant.  However, one of the most long-standing rules is that the parties can’t tell the jury that the defendant has insurance, that insurance might cover the jury’s award, or anything similar.

2.  Attorneys’ fees.  In most personal injury cases, the plaintiff (the party that is injured and filed the lawsuit) has to pay his or her attorney out of the jury’s award.  And yet, we’re never allowed to tell the jury this fact.

3.  The defendant’s history.  In many cases, the defendant may have a history that our clients think is relevant.  For example, if it is a car wreck case, the driver may have a bad driving record with prior wrecks or tickets.  Or, the other side may have a criminal history or a history of alcohol or drug abuse.    In most cases, the jury never gets to hear about these “prior bad acts” (as we call them).

4.  Settlement offers or negotiations.  Sometimes clients think that we can tell a jury about settlement offers from defendants and that the jury will use those as a “floor” for an award.  But in most instances, we can’t tell a jury about settlement negotiations, mediation, or other settlement discussions.

5.  Effect of jury answers.  The way our system works, the jury doesn’t decide who wins or who loses.  Instead, the jury is asked a series of questions.  But the jury doesn’t get to know what their answers mean, and we’re not allowed to tell them how their answers might affect the ultimate award.  This was really demonstrated in a case of ours a few years ago.  In a business case, we obtaned a jury verdict that included an $8,000,000.00 punitive damage award.  But due to tort reform legislation, that recovery was limited to $250,000.00.  When we told the jury about it afterwards, they were floored.  They had been trying to punish the defendant for their egregious conduct, but the result ended up being a drop in the bucket for this large company.

My list could go on and on. There are any number of additional things a jury doesn’t get to hear about, but these are a biggies.

And as I said, these are only the general rules, and in some cases, there might be ways for attorneys to legitimately get the right to tell the jury about some of thse items.  In fact, I often tell people that one of the advantages of hiring an experienced personal injury attorney is that they might know tricks that increase the likelihood that you get to tell the jury these things.   That is especially true for trucking accident cases.

A mediation is a settlement conference led by a neutral third-party, the mediator. The mediator is often, but not always, a lawyer.  In Texas, most courts require you to go through a mediation before you can get a trial in your case.

Generally, the mediation starts with an opening session where all the parties are present. In many cases, when the defendant has insurance, the defendant will not appear, but an insurance adjuster (who is really deciding the amounts to be offered) appears on the defendant’s behalf.

The mediator will start the opening session with his introductory remarks. Those remarks will describe the mediation process and will often include a discussion of some of the advantages of mediation. Depending on the mediator, the remarks may include statements similar to the following:

Mediation is your chance to have input on the resolution of the case without putting it into the hands of 12 (or 6) strangers.

A good settlement is one where both parties end up upset. That means the defendant paid more than it wanted, and the plaintiff accepted less than it wanted.

Don’t underestimate the emotional value of resolving the case. If you settle the case, then tomorrow can be the first morning in months (or years) that you wake up and don’t have to worry about this lawsuit.

After the mediator finishes his remarks, the parties will have an opportunity to make their statements. Generally, the plaintiff’s attorney will go first, and the defense lawyer second. Many times, these sessions become posturing sessions so, no matter what side you’re on, you will hear statements from the other side that will make you mad.  When the parties start posturing, it seems to push the parties further away from resolution than towards it.  Therefore, in our cases, we generally try to keep our remarks short and try not to make any unnecessary inflammatory remarks.  Additionally, in many cases, we request that the mediator not even have the opening session in an effort to prevent this problem from occurring.

After the parties have made their statements, then the mediator will separate the parties into different rooms. The mediator then goes back and forth between rooms and engages in shuttle diplomacy. The first few sessions may involve more in-depth discussions about the case. The mediator may ask you to evaluate your strengths & weaknesses. He may play a devil’s advocate to push and probe to make sure you’re fairly evaluating the case.

In the later sessions, there is less discussion, and the mediator is often just going back and forth trading offers.

The mediation ends when a settlement is reached or when the parties reach an impasse.

A mediation is not an arbitration. A mediator doesn’t have the authority to force parties to settle a case or to decide a case. All decisions about settlement are left up to the parties. Having said that, some mediators will provide suggestions on what a good settlement number should be, but those suggestions are not binding on the parties.

One of the benefits of mediation is its confidentiality. It’s generally confidential in two ways. First, what is said in mediation can’t be used at trial. For example, if you’re trying to resolve a case and make some concession, the other side can’t argue at trial that you conceded that point at mediation. Second, the communications you make to the mediator are confidential. The mediators should not go tell the other side anything you said unless you authorize the mediator to do so. The confidentiality isn’t 100%. There are some rarely-applicable exceptions, and some mediators don’t seem to treat their duty of confidentiality as seriously as others.

There are some rules we typically give our clients about mediation.

1. Bring something to read or do. A lot of the mediation will be spent with the mediator visiting with the other party. You will want something to do during this time or the time will pass slowly.
2. Dress in something comfortable, but appropriate. I generally suggest that you dress as you were going to work.
3. Be prepared to be tired. Mediation is an emotionally draining process. At the end of the day, you will be tired even though you will have spent the entire day just sitting around.

If you want additional resources to understand the process, you may read the following (but remember that their information isn’t specific to Texas so the processes described may be a little different):

• How Does The Mediation Process Work?
• Why Mediation Works
• Alabama State Bar:  What, How & Why of Mediation　

You settle your case.  What happens next?

It seems like I’ve been asked this question several times in the last week.  Because it’s popping up, I thought I’d use this space to answer the question.

Because we have to make payments out of the check  (for example, our fees & expenses, payments to health insurance companies for subrogation interests, or perhaps payments to doctors or hospitals for unpaid bills), you don’t get your check the day the settlement check comes in.  Instead, we have to go through a multi-step process.

The first step in the process is getting the check from the insurance company or the defendant.  This usually takes two to three weeks, though sometimes it is quicker and sometimes slower. 

The check is usually made out in one of two ways.  In most situations, the insurance company will make the settlement check out to you and to our firm.  In some instances, the insurance company will want to directly pay a health insurance company or a medical provider (usually a hospital).  In those cases, we’ll received two checks:  one to the hospital or health insurance company for the amount it’s owed and one to us and you for the balance.  There are also some situations where the company will agree to not put your name on the check to help us speed the process up, but that’s unusual.

When we get the check, if your name is on it, we’ll have to get your signature.  Usually, you’ll come into our office for this, but sometimes we can send a runner with the check out to meet you.

Once you sign the check and we sign the check, it is deposited in our trust account.  The State Bar of Texas requires us to keep a separate trust account to deposit funds that belong to both us and our clients (or even others). 

After we deposit the check, we give it a few days to clear, and then we can write checks for final distribution — that includes checks to you for your portion, checks to us for our portion, and checks to any third-party who need to be paid out of the proceeds. 

So what’s it all mean to you?  While the process can take a while to explain, it doesn’t usually take that long in practice.  Once we get the original settlement check, you can usually have a check for your portion of the proceeds in two to three business days. 

BUT, there are some circumstances where it takes longer.  Most of those involve us waiting around for Medicare or some other governmental entity on a subrogation claim.  If your case is going to be one of the unusual cases held up, we’ll try to let you know that as soon as possible.

Several new studies being released this week find a relationship between head injuries or brain injuries and dementia or Alzheimers.  Two of the studies, release Monday, establish that brain injuries suffered by football players and by soldiers in battle likely boost the risk of dementia later in life. 

I think the use of the term “traumatic brain injury” is misleading to the public (and to many attorneys who don’t routinely handle brain injury claims).  Calling it a “traumatic brain injury” makes people think that the risk would only exist in the most serious brain injuries.   In reality, a diagnosis of concussion, post-concussion syndrome, a skull fracture, or some non-specific head injury are all considered traumatic brain injuries.  Thus, attorneys need to be looking out for these potential risks in most of our cases. 

The issue is important to our clients.  As Dr. Kristine Yaffe, head of the Memory Disorders Program at the San Francisco Veterans Association medical center (and an author of one of the recent studies) said,

This issue is very important because TBI (traumatic brain injury) is very coommon.  About 1.7 million people experience a TBI each year in the United States, primarily due to falls and car crashes.

Sadly, we’ve represented a number of people with brain injuries.  The injuries not only affect the victims, but also their spouses, children, and other loved ones  (in fact, I believe loved ones are often in a better position to help diagnose brain injuries than those actually injured).  This is just another factor that we’ll have to take into account when valuing and trying to resolve head injury claims.

If you or a loved one has suffered a head injury in a wreck or other incident, please feel free to call us at (512)476-4944.

For additional information from us on head injuries, click on the links below:

• What Is A Brain Injury?
• What Are The Effects Of A Brain Injury?
• How Can A Head Injury Be Treated?
• What Can You Learn About Brain Injuries From The NFL?
• Traumatic Brain Injury Is A Common Result In Car Crashes

For additional information on the studies released this week, feel free to click on the links below:

• Associated Press:  Head injuries in war, sports may boost dementia
• Bloomberg: Veterans’ dementia risk linked to combat head injury
• Chigago Sun Times: Mild brain injury car raise dementia risk
• Traumatic brain injury doubles the risk of dementia
• Brain Injury Patients Face Double Injustice — Trauma and Mounting Bills

Sunday’s Austin American Statesman had a wonderful article about hospital liens, a problem that can really muck up a car wreck or other personal injury claim.

Texas law provides that if a person is injured in an accident and is admitted to a hospital within 72 hours of the accident, then the hospital has a lien against any recovery for the amount of the care. (You can read the entire statute here.)

That sounds reasonably fair — hospitals should get paid for their services.  Except that many hospitals are abusing the statute in an unfair manner. 

There are two problems in the way that hospitals abuse the statute.  First, they charge ridiculous prices.  When you go to a hospital, you don’t get to sit down and negotiate prices or look at a menu with the services and prices next to them and choose what you want.  The hospitals decide what treatment you need (as they should) and then they also get to set the prices.  Unfortunately, the prices that they set in the personal injury context are ridiculously high prices that no one really pays.  It’s a pie-in-the-sky number that they try to force on injury victims.

Second, they abuse the system by trying to charge these prices even when other insurance or other payment sources, such as Medicare, are available.  Because the amounts for the services are so much higher than what an insurance company or Medicare would pay for the same services, hospitals often forego payment from these sources and then file the lien hoping to get the inflated prices from the injured victims. 

In the health insurance context, the Texas legislature has tried to fix the law, passing a statute that requires hospitals to submit claims to available health insurance companies when the coverage is available.  However, there is a bit of a debate about whether that law applies to Medicare or other similar proceeds.  As a result, hospitals are refusing to bill Medicare and similar providers in this context to try to get the higher amounts from you.

We need the legislature to again step in and clarify that the lien is not valid if the hospital fails to submit the claims to Medicare.  Until then, our only course of action is to sue the hospital for a declaration that the charges are unreasonable.  This causes all the parties to incur unnecessary attorneys’ fees and just causes unnecessary stress for injured victims, but it’s the only mechanism for resolution we currently have.

I do encourage you to read the article.  They have more time to write about the problem, and they share stories that really show how it affects you as victims.  Also,  representatives of one of Austin’s most aggressive lien filers make some very questionable statements in the article about their practices.  In some, but not all, of those cases, the author of the article calls them on it. 

I’m just thankful that this problem has reached the popular press.  Maybe the publicity will cause some changes.

A favorite insurance company ploy in personal injury cases is to request that an order from the Court that the plaintiff be required to undergo an “independent” medical exam — an exam by a doctor hired by the insurance company.

Despite the implications of the name, these are not indpendent.  The doctors are hired by insurance companies and these exams are filled with fraud.

Back in 2009, the New York Times ran a long story exposing many of these exams for the fraud that they are.  Among other things, the report found doctors reporting on tests that were never done, given written reports saying the patient had no injuries when the videotaped tests and exams proved otherwise, and doing cursory exams. 

At the time, I wrote a long blog post that summarized the article, The New York Times Tells The Story Behind “Independent” Medical Exams, and you can read that post for more information. 

But many times, pictures (and videos), tell a story better than words.  And I recently saw a tongue-in-cheek video that was an example of an “independent” medical exam.  It would be a lot more funny if it wasn’t so darn true.

I always encourage accident victims to talk to personal injury lawyers as soon as possible to make sure that their rights are protected, but it’s even more important now.

As you may know, the Texas legislature is in session.  What you probably don’t know is that yesterday was the Texans For Lawsuit Reform’s lobby day where they unleashed their traditional platform of ways that they want to limit your rights. 

I don’t know what’s going to happen with any of this legislation, but rest assured that none of it will likely help personal injury victims (with the exception of their proposal to stop barratry — solicitation of personal injury clients by unscrupulous lawyers).    There’s also no telling when any of these attempted reforms will go into effect.  In the past, tort reform litigation has gone into effect at different times — some go into effect immediately upon signing by the governor and some have gone into effect only at some later date.

Regardless, personal injury victims should start talking to potential lawyers as soon as they can.  You want to make sure that you and your lawyer have enough time to investigate claims so that any lawsuits can be filed before any new tort reform laws go into effect.