Perlmutter & Schuelke, LLP, Austin Attorneys » Wrongful Death

Distracted Driving Lands Driver 30 Day Jail Sentence

sbrennan — Mon, 05 Oct 2009 19:39:56 +0000

I’ve been on a bit of a blog hiatus because we’re in the process of re-designing the website, but this story begs to be blogged about.

Today, a Texas judge sentenced a 24 year old Humble woman to 30 days in jail and 10 years probation and ordered her to pay a $10,000.00 fine after her distracted driving resulted in the death of a 25 year old driver. The woman was trying to get on an interstate on-ramp that she had missed just seconds after hanging up her cell phone. Interestingly, the prosecutor and the defense both asked for probation, but the judge overruled them and ordered the jail time.

This is just the latest news about distracted driving. Last week, the Department of Transportation hosted a summit on the dangers of distracted driving. On the heels of the summit, President Obama entered an executive order directing federal employees not to text-message while driving.

While it’s unfortunate that we need jail sentences or summits to drive the message home, the more this topic is discussed, the more awareness people have of the dangers, and the safer the roads become.

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/.

Car Wreck/Safe Driving Tidbits

sbrennan — Tue, 01 Sep 2009 20:01:44 +0000

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.

Patient Tips To Avoid Wrong Site Surgery

sbrennan — Fri, 14 Aug 2009 20:07:11 +0000

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.

Dangers of Loose or Stray Tires

sbrennan — Wed, 12 Aug 2009 20:08:28 +0000

Earlier this week, Pedro Garcia, a state worker who had stopped on the roadway to pick up trash, was killed when he was hit by two loose tires that had come off of a passing tractor trailer. This may seem like a strange fact pattern for an injury, but it’s not.

Earlier this month, a police offier in Texas was almost hit by another loose tire from a tractor trailer. The tire, going approximately sixty miles per hour, just missed the officer. At that speed, I can only imagine the injuries the officer would have sustained. You can watch amazing home video of the incident below.

And though I can’t find a link to a story, two summers ago, an Austin woman was killed on I-35 when a stray tire from a tractor trailer crossed the median and slammed into her car.

These wrecks raise interesting questions when you stop and ask who is responsible. Obviously, if you can track the offender down, then you may have a claim against the owner and operator of the vehicle and the company charged with maintaining the vehicle. But many times, tires come loose, truck drivers never know it, and they simply continue on down the road, and the victim can’t identify the responsible party.

That’s when things get interesting. It makes sense that a victim could make an uninsured motorist claim against their automobile insurance carrier. But that’s not the case.
The uninsured motorist statute and most, if not all, of the Texas uninsured motorist policies contain a requirement that there must be “actual physical contact” between the uninsured vehicle and the injured person or their property. This provision was understandably adopted to prevent fraud. There were numerous uninsured motorist claims based on one-car wrecks whose drivers suddenly claimed that their wrecks were caused when phantom cars ran them off the road. The physical contact requirement was added so that insurance companies had a way to confirm that other vehicles were actually involved. Based on this provision, numerous courts of appeals have held that when a vehicle looses part of its cargo that the cargo wasn’t part of the uninsured vehicle so there was no physical contact and no coverage was available.But what about when you’re hit by the tire or some other part of the uninsured vehicle? Unfortunately, the Texas Supreme Court has rejected those claims. In the March 28, 2008 opinion of Nationwide Insurance Company v Elchehimi the court was faced with a wreck was caused when a tractor-trailer lost an axle and two wheels that hit the plaintiff’s vehicle. Rigidly applying the statute, the supreme court said that an axle and two wheels are not a vehicle so no coverage is available.The dissent, by Justices O’Neill and Medina, took the much more sensical view. They argued that (1) the axle and wheels were an integral part of the other vehicle, and (2) there was no risk of fraud because it was clear that the claimants were hit by a part of another vehicle. As a result, they would have allowed coverage in this case. They further argued that the purpose of the UIM statute was to allow people to protect themselves, and the court’s strict interpretation of the statute frustated that purpose.Unfortunately, we’re now left with the situation that if the injured person can’t specifically identify the vehicle that lost its cargo or parts of its vehicle then no claim can be asserted.

New Data Shows Cell Phone Use Contributing To Car Wrecks And Wrongful Deaths

sbrennan — Tue, 21 Jul 2009 20:15:46 +0000

Yesterday’s New York Times broke a story that two public interest groups had obtained research and studies from the National Highway Traffic Safety Administration that document the dangers of cell phone use while driving. Apparently the documents and a requested study of 10,000 drivers were all shelved because the NHTSA was more worried about politics than the safety of our drivers.

The research was alarming, finding that a motorist talking on a cell phone was four times as likely to be involved in a crash as other drivers, and are as likely to cause an accident as someone with a .08 blood alcohol content.

Overall, the documents concluded that cell phone use while driving was responsible for 955 fatalities per year and 240,000 car wrecks per year.

And using hands-free devices didn’t help much. One study conducted in conjunction with Virginia Tech found that drivers using a hand-held device were 1.3 times more likely to become involved in an auto accident and at three times the risk when dialing compared to other drivers. In fact, the agency had prepared a letter to the governors of each state warning them of the dangers of even using hands-free devices.

Despite these dangers, Texas has few regulations to minimize these risks of injuries. During the last legislative session, HB 55 was passed, and it prohibits the use of a “wireless communication device” in a school zone unless the vehicle is stopped or the device is hands-free. The law goes into effect on September 1, 2009. Section 545.424 of the Transportation Code also prohibits a driver under 18, during the first six months of having his or her license, from driving while using a “wireless communication device.” Finally, section 545.425 of the Transportation Code prevents a bus driver who is carrying a minor passenger from using a “wireless communication device.”