Last week, the Dallas Morning News had a good article on the number of workplace deaths in Texas.

While the number of deaths have decreased in almost all parts of the nation, they remain high in Texas.  Indeed, in 2010, the last year for which statistics are available, Texas was responsible for 10% of the nation’s workplace fatalities.

The story suggests a number of potential causes for the high rates of workplace injuries.  Most of the fatalaties involved a driving or highway accident, and Texas has a vast network of highways compared to other states.

The story also suggests that Texas remains very lax about requiring training for Texas workers.  This lack of training helps decrease the safety of all workers.

Additionally, Texas relies on a high percentage of temporary workers.  These temporary workers often receive even less training and have less experience than their permanent counterparts — making them even more dangerous to all.

If you or a family member has been injured in a workplace or jobsite injury, please call us at (512)476-4944 and allow us the opportunity to help you.

One of the most frustrating issues for our personal injury clients is dealing with hospitals and hospital charges that don’t seem to make any sense.

Yesterday, Austin American Statesman writer Mary Ann Roser had a great story that looks at the mysterious world of emergency room and hospital charges.  She took the time to research the costs of various procedures at different facilities, and her results are stunning.

For example, she found that the cost of treatment for a stroke could range anywhere from $68,188 to $7.990 depending on which hospital provided the care.  Similar disparities existed for all other kinds of treatment.

This generally isn’t a problem for those who have health insurance because the insurance companies have negotiated rates (usually MUCH lower than these rates) with the various hospital systems, but it is a huge problem for those who don’t have insurance.  The uninsured are left to try and negotiate reductions for themselves, and without the leverage of a large health insurance company behind them, most of those negotiations are unsuccessful.

It’s even worse for injury victims.  Hospitals who provide emergency care to injury victims are entitled by law to file a lien against the victim’s recovery in any future personal injury case.  That lien removes what little negotiating power the patient has, and injury victims are often exploited for a large portion of these made up charges.

One of my favorite examples of these abuses is a relatively new “Trauma Activation Fee” that Brackenridge Hospital is trying to add to many patients’ bills.  If you’re unlucky enough to be taken to Brackenridge and they activate a trauma team (regardless of whether you need it), they charge a trauma activation fee ($14,247.50 for a Trauma II charge; I don’t know the charge for Trauma I).  You get charged this fee even though you didn’t request and often when you don’t need it.  And yet, if you’re uninsured, you have little leverage to negotiate it down.

As I wrote earlier this month, the Patient Protection & Affordable Care Act (Obamacare) is supposed to help prevent these abusive practices, but we’re still not seeing those results yet.  Often, when I talk to hospital representatives to negotiate bills and inform them of the law, the representatives have never heard of it before.

It is a problem, and I appreciate the Statesman bringing it to light

We have seen a rash of clients who have experienced herniated discs as a result of an auto accident.  As a result, I thought I’d take this opportunity to let you know a little more about the injuries.

WHAT IS A HERNIATED DISC?

As you may remember from high school science, our spinal cord goes down our spine protected by our vertebrae, the bones that make up our spine.

In between each bone is a disc, a small, jelly-like substance that buffers the vertebrae.

Unfortunately, in many accidents, the disc is damaged, and the disk material leaks out of its space.  This can cause a number of problems.  The disk material itself may impinge (or squeeze) the nerve, causing significant pain.

Additionally, the center of the disc contains material (nucleus pulposus) that may also leak.  These chemicals may themselves irritate the spinal nerves and cause pain.

SYMPTOMS OF HERNIATED DISC

A herniated disc that affects a nerve is often quite painful.  It may also be accompanied by radiating pain, pain that travels down your back or even into your legs.  Depending on which vertebrae has the problem, you may also get tingling in your fingers, hands or feet.  Again, depending on the location of the injury, you may experience weakness and even bladder issues.

If you have these symptoms, it’s important to seek treatment.  A herniated disc is a serious injury.

TREATMENT

Many physicians will start with a conservative course of treatment, which may include physical therapy or strengthening exercises.

If the conservative care doesn’t help, then your physician may suggest the use of steroid injections.  While steroid injections don’t “fix” the problem, they may help with pain relief.  Some of our clients get significant relief from the use of injections, and others get relief that only lasts a day or two.

If conservative treatment and steroid injections don’t provide significant relief, then many patients and clients require surgery.

Traumatic brain injury can be deadly. It certainly alters a person’s life.

This on-the-job injury case involved a railroad worker. John Doe (whose name has been changed to protect the victim) had worked for the Kansas City Southern Railway Company for a number of years when he was involved in an accident.
The fateful event happened in 2009 when Doe, a section foreman, and his crew were removing broken rail of a section of track. Suddenly, the boom of the crane struck the ball of the rail still loaded in the rack of a railway section truck. The impact rolled it over the forks on the rack and the rail dropped like a stone to the ground. On its way down, Doe was hit and sustained severe back, neck and head injuries.

From that day forward, Doe suffered unbelievable physical pain and suffering, lost wages, mental anguish, loss of current and future earnings, diminished earning capacity and enormous medical bills that he was unable to pay. Doe hopes that his case will be successful, and that he will be able to recover enough money to take care of himself for the future.
Cases like this are tricky and may also involve worker’s compensation. In some states, a worker is not able to sue his employer because he is being paid workers’ compensation. Since this varies state by state, it is something that needs to be checked with an Austin personal injury lawyer if an accident like this takes place in Texas.

Workers’ compensation is always an issue when workers are injured on the job, but each case is different, so never assume you do not have a case or that you cannot get compensation. The details of the case need to be discussed in depth with an experienced Austin personal injury lawyer. As things currently stand, Texas private employers may choose whether or not they will offer workers’ compensation insurance to their employees. Typically, the employer is mandated to tell the worker if they have coverage or not.

Workers’ compensation pays the medical bills and covers a portion of a worker’s lost wages if they are injured on the job or are affected by a work-related illness and the employer has coverage under the Texas Workers’ Compensation Act, Title 5, Subtitle A, Labor Code. It can also cover for vocational rehabilitation and retraining when an injury prevents a worker from going back to their normal job, and they need to learn a new position to be able to work with a longer-term injury or disability.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

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.

One of the most common fights we’re having in personal injury claims is known as the paid v. incurred fight.

In 2003, the legislature passed a law limiting damages in personal injury cases as follows:

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 this mean? 

In many cases, there are two different costs for medical care:  there is the list price and  the price that the medical provider accepts as full and final payment for the bill.

While it can come up in a number of different situations, the typical situation involves health insurance.  One of the benefits of your health insurance is that the insurance company has negotiated reduced rates with various medical providers.

For example, a hospital may have a list price of $10,000.00 for a procedure, but the insurance company negotiated with the hospital so the hospital agrees to accept $5,000.00 as payment in full.

Sometimes this benefits the insurance company — they get to pay less for your procedure.  But many times it benefits you.  For example, I have a high-deductible insurance policy — my company doesn’t pay until we’ve spent $5,000.00 for a year to meet our deductible.  But even when we haven’t met our deductible, the insurance company still processes the charge and reduces it so that I only have to pay the agreed upon reduced rate.

Before the 2003 law, injured people got the benefit of their insurance.  When we asked the jury to award medical expenses, the jury was asked to award the entire $10,000.00. 

But then the law was passed, and because it was worded so poorly, there was a great debate about what it meant.  Finally, the Supreme Court issued a case in July of 2011 clarifying the meaning.  And they held that an injured person can only ask the jury for the reduced amount that was actually paid to the medical provider.  In essence, a defendant now gets the benefits due you because you had the foresight to obtain health insurance.

This ruling also has an effect on the value of your claims.  In some cases, there is little we can do to avoid application of the rule, but in some cases, we can use some strategies to try and maximize your recovery.

If you’ve been injured, you should make sure your lawyer understands these issues and how to maximize your recovery in light of these issues.

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