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

When fatal accidents happen at work, the family may want to file a wrongful death lawsuit.

The day started out like any other workday for the 44-year-old Texas oil field worker. He got to work and started getting ready to get on with his day. The man and his co-worker were working on a pipe rack late in the morning, moving drilling collars, when the pipes gave way and shifted and slipped. The 44-year-old man was trapped between the pipes and suffered injuries so severe that he died when he arrived at hospital a short time later.

The co-worker was fortunate enough to still be alive, sustaining only a leg injury. The U.S. OSHA will be investigating the scene and will likely have a list of questions they want answered about why and how the accident happened.

“They will want to know how well the pipes were secured and if they were secured properly. They will also want to know if both men were working according to safety rules and regulations and had the proper equipment with them that day. If there was negligence involved, this will also be something the investigators will want to pinpoint,” said Brooks Schuelke, an Austin personal injury lawyer with Perlmutter & Schuelke, L.L.P.

In Texas, even though an injured worker may sue, he may not be able to sue his employer. Under Texas law, an employee generally cannot sue his employer if the employer carries worker’s compensation insurance.

“It’s not clear in this particular case if the employer did provide workers’ compensation, but that is an issue that would need to be checked. If there was workers’ comp, this may leave a worker high and dry in terms of his or her ability to recover financial compensation for their injuries,” Schuelke said.

“If you have been in a situation like this, you will want to talk to an Austin personal injury lawyer about how to proceed. This case could be filed as a wrongful death lawsuit as opposed to a personal injury lawsuit, but you would need to know what would be involved. The law changes in this area fairly rapidly and in speaking to a competent Austin personal injury lawyer, you stand a better chance to get justice for your loss,” Schuelke said.

Contact Perlmutter & Schuelke LLP at http://www.civtrial.com or (512) 476-4944.

In short, everything you think is relevant, and probably more.  I always tell clients that we would much rather have too much information than not enough.    While each type of case is different, there are some general things that you should consider bringing to your initial attorney consultation.

1.  ACCIDENT REPORT.  In many types of accidents, you might already have access to accident reports about your case.  For example, if you’re in a car wreck, you should bring the police report.  If you have an on-the-job injury, you should bring any investigation report performed by your company.  If you’re injured on the premises of a business, you were likely required to fill out an incident report.  You should bring any type of reports like these to your initial meeting.

2.  PHOTOS/VIDEOS.  If you have photos or video of the accident scene, the other parties, or your injuries, then bring those in.  Photos can be priceless in helping tell your story.

3.  A LIST OF DOCTORS/MEDICAL PROVIDERS.  Prior to your consultation, you should prepare a list of doctors and medical providers who you have seen for the wreck  We’re going to ask you for that in the meeting.  Instead of you being put on the spot and trying to think of those items off the top of your head, try to prepare the list in advance.  I’ve found that clients who prepare the list in advance  (without  the stress or being rushed) do a much better job of naming everyone that needs to be on the list.

4.  MEDICAL RECORDS AND BILLS.  If you have any medical records or bills, bring those to the initial meeting. 

5.  YOUR HEALTH INSURANCE POLICY/MEDICARE or MEDICAID INFORMATION.  It might not occur to you, but it helps to have your health insurance policy.  Because of subrogation principles, your health insurance is probably going to be asked to be reimbursed for any medical expenses it pays on your behalf.  The same is true for Medicare, Medicaid,  VA Benefits and any number of other groups that pay for your medical care.  To help us prepare for your subrogation claims, please gather your health insurnce policy, Medicare or Medicaid records, or any additional information that you think might help us pursue those subrogation claims.

6.  FOR CAR WRECK CASES, YOUR AUTOMOBILE INSURANCE.  Again, you might not think about this, but if you are retaining us to represent you in a car wreck, please bring your automobile insurance policy.  We’ll need that policy to help you determine whether you have Personal Injury Protection (PIP) or Uninsured/Underinsured Motorist Coverage (UM/UIM).

7.  CORRESPONDENCE WITH THE INSURANCE COMPANY/DEFENDANT.  If you have already started receiving communication from the insurance company or the other side, we’ll want to know about that.  Please bring that information to the first meeting.

There will, of course, be additional documents that you need.  Use your discretion.  If you think there is any chance that we’ll need the information, then bring it.

On the job accidents are virtually an everyday occurrence across the nation. This case demonstrates that personal injury accidents may happen when least expected.

The 52-year-old man involved in this accident was working on a ride at a theme park, when he fell and sustained a severe head injury. The ride in question was closed for maintenance and no one is sure what happened to cause the man to fall. First responders called for a medi-vac airlift to the nearest hospital. While the man made it to the hospital alive; he died as a result of his injuries the day after he fell.

“In any situation where someone dies while they are at work, the U.S. OSHA conducts their own investigation in tag team with the police and the employer. The major questions to be answered here are whether or not the ride the man was working on was defective, poorly maintained, whether something or someone caused the man to fall, whether he was following safe practices while working on the ride and whether or not he was issued any type of safety equipment in the first place,” said Brooks Schuelke, an Austin personal injury lawyer with Perlmutter & Schuelke, L.L.P.

While the answers to those and other questions will determine whether there was negligence involved, there is a family that no longer has their husband, dad, brother, son and uncle. The family may wish to file a wrongful death lawsuit to seek compensation for the loss of their loved one. Typically, when a family files a lawsuit for wrongful death, they are not doing it because they want to get even with those who caused the death. Instead, they are filing because they have economic concerns about how the family will move forward without the income the deceased provided.

“It is not an easy decision to file a wrongful death lawsuit,” Schuelke said. “In most cases, there is a tremendous sense of guilt on the part of the family. They do not want to be seen as trying to make a profit from the death of their loved one. In reality, the family may face losing their house if they do not file for compensation as a result of the death.” Economically speaking, in many cases, a wrongful death lawsuit is the only thing between a family having nothing to pay the bills and being able to move on with their lives.

“If you are in a situation like this or need advice about a recent wrongful death, I encourage you to call my office and we can discuss your case. Every state has their own rules and regulations pertaining to wrongful death, and I can outline what those are in Texas,” Schuelke said.

Contact Perlmutter & Schuelke LLP at http://www.civtrial.com or (512) 476-4944.

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.

Yesterday, one worker was killed and another injured when the scaffold they were using collapsed.  The workers were maintenane workers for the Retreat at North Bluff apartment complex.  They were apparently using a make-shift wooden scaffold for their work.  The Occupational Safety and Health Administration is now investigating the incident.

If you’re involved in such an incident, what types of issues might you face in bringing a claim?

The first issue in on-the-job injuries is whether your employer had true worker’s compensation insurance.  The Texas worker’s compensation system provides protection for employers who carry worker’s compensation insurance.  If  your employer carries worker’s compensation insurance then the insurance will pay for medical expenses and some lost wages for you for any on-the-job accident regardless of who caused the accident.  But the protection to your employer is that you can’t sue your employer for any other damages, such as pain and suffering, mental anguish, etc.

The one exception to this protection is if your injuries were caused by your employer’s gross negligence.  Generally, that means is that your employer knew it was doing something dangerous and putting you at risk but did it anyway.   If you are killed or seriously injured by your employer’s gross negligence, then you may still be able to bring a claim against your employer even if the employer has worker’s compensation insurance.  But you may waive this right by accepting worker’s compensation benefits so it’s important to talk to an attorney right away to make sure you don’t waive your rights.

Because the state wants to encourage employers to carry worker’s compensation insurance, there is also a penalty for employers that don’t carry worker’s comp. Those employers are deprived of any comparative responsibility defense.  In a normal case, a defendant is generally only liable for the percentage of damage it causes you.  For example, if a jury finds you suffered $10,000 in damages, but that the defendant was 60% responsible and you were 40% responsible, then you only get to recover 60% of the damage (in this example, $6,000).  But if a “non-subscriber” case where the employer doesn’t carry worker’s compensation insurance, your employer is responsible for all the damages even if it only contribute 1% responsibility to your injuries.

So the first thing we need to know in these cases is whether your employer has worker’s compensation insurance.  A good first start is the Texas Department of Insurance website, which will verify whether your employer carries worker’s compensation insurance or not. 

The second thing we ask is whether any other entity (other than your employer) contributed to your injuries.  Perhaps you were working on a jobsite and the property owner had a dangerous condition there.  Perhaps you were on a jobsite and your injuries were caused by an employee of a subcontractor or someone else working on the same job.  There are a lot of possibilities that we look for here.  (I”ll also add that the law in this area is very complicated.  It would take a book to explain the ins and outs of potential third-party liability claims.  I’m not trying to explain all that here.)

Once we determine who we might be able to sue, we then focus in on what they did wrong.  Just because you’re injured on the job doesn’t mean that your employer is liable for your injuries.  We have to be able to prove that your employer’s negligence contributed to your injuries.

In a case like the example, that should not be difficult.  Scaffolding is very dangerous and is thus highly regulated.  

OSHA has several requirements for scaffolding safety. Initially, it is critical that the scaffolding be constructed properly. OSHA has very detailed requirements for the construction of scaffolds. These requirements include:

• each scaffold and scaffold components must be capable of support four times the maximum intended load on the scaffold
• any suspension ropes must be capable of supporting at least six times the maximum intended load
• the working levels must be properly planked and decked
• scaffold components manufactured by different manufacturers must not be intermixed unless the components “fit together without force” and the structural integrity is maintained
• supported scaffolds (as opposed to scaffolds suspended from the roof) must be plumb and braced to prevent swaying
• for suspended scaffolds, there must be a normal operating brake and an emergency brake or locking pawl that automatically engages when there is an instantaneous change in momentum or an accelerated overspeed

In addition, OSHA has specific guidelines for fall safety systems, which includes a requirement that each employee on a walking/working surface with an unprotected side or edge which is more than six feet above a lower level must be protected by a guardrail system, safety net system or personal fall arrest system. The OSHA rules also specific requirements governing the guardail, safety net and personal fall arrest systems.

When looking at this claim, we would investigate to determine whether your employer complied with these requirements.  If your employer failed to comply with the requirements, then we have a good start to argue that your employer’s negligence contributed to your injuries.

In addition to looking at regulations, we also look to other actions that your employer might have taken or not taken that contributed to the incident.  For example, in many cases, people are injured by co-workers.  In those cases, we’ll look at the hiring process or the training process to try and determine whether your employer’s hiring or training process contributed to your injuries.

Once we’ve done the investigation regarding your injuries, then we’ll turn to your injuries and start investigating those.

While some think a slip and fall case is an accident that will create an economic windfall for the plaintiff, this could not be further from the truth.

Slip and fall cases, also referred to as premises liability, happen when you or someone else slips and falls on the land, business or premises of a person or company. The idea is that the owner is liable for accidents that happen to you when you are on their property if the owner knew or should have known about the problem that caused the accident and failed to do anything about it.

For a clear example, the type of accident that usually merits legal assistance in the form of an Austin personal injury lawyer and a court case could involve a slip and fall after taking a skid on a wet floor that no one put up a warning sign about, if there are significant injuries to the victim.

The one thing about slip and fall or premises liability cases is the ability to distinguish between what you should really be aware of and on the lookout for and what would come as a nasty surprise. Put another way, if you ask guests to your home and your floor is uneven, rough, full of holes and a definite hazard, you must take the responsibility to warn people about the chance they may be hurt and/or fix the problems. It is that, or finding out later, when you are contacted by an Austin personal injury lawyer and told that you are being sued.

On the other hand, say you walk onto a construction job site. What would you expect to find there? You would probably see signs warning people on the property to wear proper headgear and to watch for falling objects, etc. It would come as no surprise to find nails and broken glass on the job site, as well as piles of debris. Trip over some of that stuff and really, you should have been watching were you were going. In other words, slip and fall accidents are usually about expectations. You do not expect to find nails, loose boards and falling objects in a grocery store or at a coffee shop.

These kinds of cases are really common for the simple reason that walking itself can be a major task some days. Add in the fact that humans are human and when washing the floor in a business washroom, they sometimes just plain forget to leave “Wet Floor – Danger!” signs out. Or if you were heading into your favourite coffee shop for a latte and tripped over a brick flagstone the owner had been meaning to fix, but had not gotten around to it yet, then you may be eligible to file for damages for your injuries.

While you may think that a fall couldn’t hurt that much, consider the case of a dance instructor on board a cruise ship who slipped in the galley on an unmarked wet floor. His injuries were so severe that he ended up being impotent and incontinent. Never assume that because it was just a fall, that you don’t have damages that will turn out to be something worse later. This is the prime time to speak to an Austin personal injury lawyer about holding the negligent party or parties responsible and to obtain funds to pay your medical expenses and time off work, etc.

Keep in mind that this area of the law is designed to help those who were unintended victims of a negligent property or business owner. News reports making cases like this out to be cash windfalls for victims are wrong. At best, they underplay the true significant of injuries sustained in a slip and fall. At worst, they portray the person as getting megabucks for a scraped knee, when in reality, the knee may have been dislocated and required pinning for the person to walk again.

While you may have fallen and hurt yourself, you need to know that filing a personal injury claim is definitely not going to make you rich. It might get you financial compensation for bills, lost wages and pain and suffering, but that’s it. Getting compensation to pay medical bills is a big win these days, given the price of medical care.

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