Texas’s Texting While Driving Ban Goes Into Affect Today. Will It Make You Less Safe?

Today, Texas’s new texting while driving ban goes into affect.  For the first time, Texas will have a state-wide ban.  A violation of the ban is a misdemeanor, with fines between $25 and $99 for first time offenders and $100 to $200 for repeat offenders.

For years, I’ve been critical of Texas officials for their failure to adopt a state-wide texting while driving ban.  So, I should be excited that a new ban is going into affect, right?

I’m not.  I think a good argument can be made that Texas’s ban makes many of you less safe.

What do I mean?

While the state refused to take the lead on this critical safety measure, many of our cities and towns didn’t.  Prior to the state-wide ban, over forty Texas cities and towns, including Austin and San Antonio, had their own limits on the use of cell phones.  Many of these bans are more strict than the Texas ban in two ways.

First, the Texas ban merely limits the use reading, writing, or sending an electronic message  (it’s not clear if this just covers texts and emails or will it cover reading websites as well?). Many of the local ordinancesgo further than that.  For example, many cities like Austin not only banned texting while driving, but also banned the use of phones (and other handheld devices) without a hands-free system (like a bluetooth headphone).  So many of these local ordinances banned more types of activities that have been found to be unsafe.

Second, many of the local fines are more expensive than the new Texas fine.  For example, in Austin, the fine for a first offender starts at $200, and the maximum fine can go up to $500.  In Kyle, the fine is between $100 and $500 for a first offense, between $200 and $500 for a second offense, and $500 for a third offense.

Unfortunately, the new Texas law also contains a pre-emption clause that overrides the local laws “relating to the use of a portable wireless  communication device by the operator of a motor vehicle to read, write, or send an electronic message.”

That means that for many cities throughout the state, including Austin, the punishment for texting while driving — the fines—are becoming more lenient.  It may also mean that the more broad bans requiring hands-free devices may also be overturned — we’ll have to wait to see how courts interpret the statutes.

But regardless of this, for many parts of the state,  including Austin, there is actually less of an incentive to text and drive today than there was yesterday.

This is a mistake.  The dangers of texting while driving are well known, and it is a factor in probably more than half of the car wreck and trucking accident cases that our firm handles.  Studies show it is more dangerous than drinking and driving.  While I applaud the state for finally acting, they should have allowed those communities who want even stronger fines to keep those fines in place.  We want to discourage as much texting and driving as we can.

If you want to read the Texas law, it is available here.

What To Make Of The New NFL Brain Injury Study

Yesterday, a new study on brain injuries in NFL players that was published in the Journal of the American Medical Association made news.

As you may have heard, the study looked at brains of 111 former NFL players, and 110 of the brains had evidence of chronic traumatic encephalopathy (CTE).

I’ve been trying to process the results, and I’ve reached a couple of conclusions.

First, you have to be careful with the results.  The only way to truly test for CTE is by doing an autopsy once the person is deceased.  In this case, all of the brains in the study were donated by the players’ families.  Obviously, most of the brains would have been donated because the family had a concern about the player’s condition before the player’s death.  Even the doctors who did the study confirm this.

Second, regardless of what I said above, the numbers are startling.  This is a lot of players who have had problems, and it’s something that we can’t ignore.  For a long time, there was a debate about whether CTE was even a real disease.  These numbers, along with other similar research, show that ti is a real problem.

Third, for safety’s sake, we need to make sure that we’re not limiting the focus to the NFL or even football.  With regards to CTE, it isn’t limited to football, soccer and hockey and at least one former major league baseball player have been diagnosed with CTE.  We need to looking at ways to make all sports safer in terms of protecting the brain.

Beyond that, we can’t let our attention be focused on CTE and sports.  Many, many more people will sustain severe brain injuries in car wrecks and falls than in sports.  We need research to continue to help us determine how brain injuries can be limited in the average person and not just in the athlete.

For more information on the new study, you can read the following articles:

 

U.T. Looking To Cut Football Brain Injuries

My University of Texas football team hasn’t been on the cutting edge of winning the last few years (and we’re hoping that’s changing), but we are on the cutting edge of trying to protect players from brain injuries.

It’s no secret that an increasingly difficulty issue in football is the rise (or at least heightened awareness of) brain injuries suffered by players.  There are some things that can be done, such as teaching proper technique and making sure that helmets are state of the art, but until now, what a school or coach can do to protect kids has been largely limited.

Now however, Riddell and Texas are taking a big step towards safety by including monitoring devices in players’ helmets.  Starting this year, all University of Texas players’ helmets will have sensors that send signals to the trainers’ hand held devices when the player sustains a significant hit in the head.  The trainer can then monitor the player and look for signs of a concussion or head injury.  Texas will be the first Power 5 school to provide this technology to every player.

This is important.  While concussions are bad, one of the biggest risks in sports is known as second impact syndrome.  Second impact syndrome occurs when a player sustains a significant blow before the brain has healed from the original concussion.  The second impact, which can occur minutes, days or weeks after the first concussion, typically causes much more severe problems than the original impact.    While some concussions are obvious, some people don’t show signs of symptoms until hours or even days after the event.  Thus, the ability to monitor the impact of a hit in real time, will make it much easier to look for problems in real time, minimizing the risk of second impact syndrome.

Now, if we can only find some technology to help us find a few more wins each year…..

 

 

Emergency Room Not Diagnosing A Concussion, Revisited

A few months ago, I wrote a short article describing why emergency rooms do such a bad job at diagnosing concussions/brain injuries: The emergency room didn’t say anything about a concussion. Does that mean I don’t have a brain injury?

Recently,  I came across a study that really quantifies the problem I discussed.

The study, primarily led by several doctors from the University of Washington, was laid out in an article entitled Accuracy of Mild Traumatic Brain Injury Diagnosis, which was published in the August 2008 issue of the Archives of Physical Medical Rehabilitation.

The article starts by noting:

Accurate identification and diagnosis of a mild TBI is the first step toward providing clinical care.

Unfortunately, despite the accurate diagnosis of a brain injury being so important, the study found that emergency rooms are not very good at making the diagnoses.

The study looked at 197 patients who had been to emergency rooms.  They looked at medical records, and in some cases interviewed the patients, to determine whether they patients had a brain injury, as defined by the Centers for Disease Control mild Traumatic Brain Injury work group.  The researchers then took those patients who were diagnosed with a brain injury and looked at the patients’ emergency room records to see what was diagnosed in the emergency room.

The results were startling.

The emergency room doctors failed to make a diagnoses of a head injury or concussion in 56% of the patients who were later determined to have a brain injury.

That’s a stunning number.

There are some things that can help improve the accuracy of the emergency department physicians.  If the patient complained in the emergency room about confusion, feeling dazed, or having memory problems, then the diagnoses was more accurate.  However, even with those findings, the emergency department still missed the diagnoses on 37% of the patients.  That’s still a substantial number of patients who have a brain injury that doctors are missing.

Oddly, the emergency room physicians’ diagnoses weren’t dramatically better even when the patient reported a loss of consciousness — which should be a red flag.  The doctors still failed to make the proper diagnoses of a head injury in about 50% of the patients who had told the doctors that they had lost consciousness.

This means that you have to be diligent about noticing symptoms.  I’ve repeatedly written that misdiagnoses is a problem and that the best way to find the problem and to get proper treatment for the problem is for someone close to the person to look for symptoms.

To learn more details about potential symptoms, you can read our other articles:

If you or a loved one has sustained a brain injury in an accident, please call us at (512)476-4944 and we’d be happy to see if we can help.

Brain Injuries: New Study Finds Fewer People Recover From Post-Concussive Syndrome

The April 2017 issue of the Journal of Neurotrauma reports on a new study about post-concussion syndrome.

The study followed 110 patients who had post-concussive syndrome symptoms for more than three months, and the findings were stunning.  Of those patients, only 27% made a full recovery.  Of the 27% who made a recovery, 67% made a recovery within the first year.  And no one who had symptoms over three years ever made a recovery.

For those groups that didn’t recover, the continuing symptoms (in order of frequency) were:

  • Headache
  • Difficulty concentrating
  • Fatigue
  • Dazed/don’t feel right/in a fog
  • Pressure in the head
  • Sensitivity to light
  • Difficulty remembering events
  • Neck pain
  • Sensitivity to noise
  • Depression/sadness
  • Insomnia/sleep disturbance
  • Irritability
  • Anxiety
  • Frustration
  • Feeling slowed down
  • Noise in the ears
  • Vision changes
  • Lightheadedness
  • Imbalance
  • More emotional
  • Dizziness
  • Nausea
  • Increased sensitivity to alcohol
  • Confusion
  • Personality changes
  • Vivid dreams
  • Numbness
  • Vertigo
  • Panic attacks
  • Disorientation
  • Stomach ache
  • Loss of appetite
  • Slurred speech
  • Seizures
  • Vomiting

These findings are significant to our brain injury cases.

Most insurance companies argue that brain injuries typically heal themselves and symptoms disappear after six months or a year. The insurance companies use that argument to reduce the value of the claim.

This study refutes that.  If a client has had symptoms lasting more than three months, then this study is evidence that the client will likely never make a full recovery.   Obviously, if an injury is permanent then the value of the case is higher.

The study is also interesting because it has a good list of symptoms of a brain injury.  It’s important for people to know these symptoms to help them recognize when they might have a brain injury.

Another interesting fact was the distribution of the symptoms.  Generally, post concussion syndrome has three classes of symptoms:

  1. Cognitive symptoms — affect your thinking
  2. Affective symptoms — affect your mood (depression, irritability, etc)
  3. Somatic symptoms — separate symptoms (headaches, light sensitivity, etc).

The study found that the persisting symptoms were quite evenly distributed between the three classes of symptoms.

 

 

Don’t Let GEICO Or Other Insurance Companies Take Advantage Of You After A Car Wreck

Insurance claim forme

Here are today’s two lessons from a court decision yesterday:  (1) Take your time before settling your case.  (2) Talk to a lawyer before settling a case.

I often warn victims of car wrecks or other accidents to be aware of insurance companies’ “swoop and settle” tactics.  In these situations, the insurance company (GEICO seems to be the worst) contacts you immediately after a wreck and makes an immediate settlement offer to try to get you to give up your rights before you know how bad you are hurt or before you know your rights.

Yesterday, the Dallas Court of Appeals handed down a new case that shows just how this terrible practice works.

In the case, Windell Gilbert was injured in a car wreck.  GEICO was the insurance company that covered the driver who caused the wreck.

Eight days after the wreck, GEICO called and suggested to Mr. Gilbert that they settle the case for GEICO’s payment of the medical expenses incurred on the date of the accident (which totaled $4,806.75) and $500.00 to Mr. Gilbert.  Mr. Gilbert agreed, and the GEICO representative had them do a recorded call confirming that settlement.

Not surprisingly, but Mr. Gilbert ended up being hurt much worse than he thought.  He went to a doctor and had over $15,000.00 more in medical expenses.

Mr. Gilbert later sued the other driving, arguing that the first settlement was unfair.  But yesterday’s opinion held that Mr. Gilbert and GEICO had a binding agreement and that Mr. Gilbert was bound to the $500.00 agreement.  Moreover, the court awarded GEICO (through the other driver) $10,000.00 in attorneys’ fees against Mr. Gilbert.

This case is a perfect example of why car wreck victims should wait to talk to an attorney and to take a little time before settling a case.  Initially, even if Mr. Gilbert wasn’t hurt more than just needing medical care on the first day, the offer from GEICO was a terrible offer.  But more importantly, people are often hurt more than they realize.  Problems linger or don’t show up until later.  I typically advise my clients that in most cases, you shouldn’t settle until you know you’re better or until a doctor tells you you’re not better, but you’re as good as you’re going to get.

So remember the lessons for car wreck (and really all injury) claims. Don’t settle too early, and don’t settle without talking to a personal injury lawyer.

 

 

Brain Injuries: New Study Finds Even One Concussion Can Have Lasting Effects

The human brainMany of us that deal with these injuries routinely have suspected it, but a new study confirms that even one concussion can have lasting effects.

The study was based on extensive data on the health of people in Sweden.  The researchers found 104,000 people who experienced head injuries between 1973 and 1985.  The researches then looked at the these brain injured persons’ records after their injuries and compared those results with the results and history of the siblings of the brain injured persons.

The researchers found that persons who had even one concussion were more likely to receive future disability payments, more likely to need mental health care, less likely to graduate high school, and much more likely to die prematurely.

The researchers also found that the problems increased significantly if the person had more than one concussion, and if the persons had their head injuries after the age of 15.

The good news is that most of the people who had just one concussion were fine.  But people who have suffered concussions will still have to worry about what their future must hold.

The article also noted that the leading causes of brain injuries are what we see often in our practice.  For the very young, the leading cause of concussions is falls.  For teens, the leading cause becomes sports.  And for adults, the leading cause of brain injuries is car wrecks.

If you or a loved one has experienced a concussion or other brain injury because of another person or business’s carelessness, call us at (512)476-4944.  We will try to help you navigate the difficult process of pursuing your claim.

 

 

 

Brain Injuries: Risk Of Suicide May Increase Three Fold After A Concussion

brainI’m part of a nation-wide group of lawyers who regularly exchange articles and other information with one another about brain injury cases.

This week, we were having an online discussion about suicide, and we shared a study from earlier this year finding that persons who have suffered even a single concussion may be at a much higher risk for suicide.

What really struck me is how these risks apply to my clients.

In a Scientific American article about the study, Dr. Donald Redelmeier, one of the study’s lead authors stated:

The typical patient I see is a middle-aged adult, not elite athlete.  And the usual circumstances for acquiring a concussion are not while playing football; it is when driving in traffic and getting into a crash, when missing a step and falling down a staircase, when getting overly ambitious about home repairs — the everyday activities of life.

These are the things we routinely see in our practice. Over the last year, I’ve represented clients who have had brain injuries in car wrecks, bicycle wrecks, slip-and-fall accidents, and more.

Too often the diagnoses of these injuries is slow, and in many cases, not recognized until very late in the process.   This delays the treatment, including the psychological treatment, that clients need to help them start the road to recovery from these devastating injuries.

 

No Pokemon (ing) While Driving

Fairly typical questions we ask and investigate in car wreck cases are whether the driver was distracted by talking on the phone or texting while driving.  Now, I might have to start another series of questions after the introduction of Pokemon Go.

Pokemon Go is an app game that was released a few days ago, and it’s already taking over the virtual worlds of kids and young adults.

But this morning, I was alerted by a reporter acquaintance that the new game is also quickly becoming a driving hazard.  A quick twitter search confirmed his fears.

I’m inserting a few of the concerning screen shots in the post.  Needless to say, don’t play PokemonGo or engage in other distracting conduct while driving.  Keep yourself focused while driving so your ultimate time for Pokemon isn’t cut short.

IMG_6907 IMG_6908 IMG_6909 IMG_6910 IMG_6911 IMG_6912 IMG_6913 IMG_6914 IMG_6915

Unprecedented Actions: HoverBoard Industry Is Deemed Unsafe

Last Thursday, the Consumer Product Safety Commission took the unprecented step of sending a letter to all hoverboard manufacturers, importers and retailing telling them that all hoverboards are potentially unsafe.  One major manufacturer, Swagway, has also told people who own its hoverboards to quit using them until they are deemed safe.

This is a shocking turn of events.  Two months ago, hoverboards were among the most popular Christmas gifts, and now the entire industry is in a bit of turmoil.

There were a couple of things that were very interesting about this to me.  First, in the letter, the CPSC declares that no manufacturer in the industry meets the CPSC’s safety standards.  This is amazing.  I can’t think of another instance off the top of my head where the government has declared an entire industry unsafe.

Second, the reason provided by the CPSC was also interesting.  The CPSC declared hoverboards unsafe because of their risk of fires caused by the batteries.  This is certainly a known risk, but in my mind, not the greatest risk.

For me, the most significant risk from hoverboards is the risk of falls and related injuries.  There have been hundreds of reports of people falling off of their hoverboards and incurring significant injuries, including numerous brain injuries and fractures of various bones.  Those types of injuries have the potential to be permanently life-altering.

I don’t know how this will turn out.  At some point, after more testing is done, perhaps the government will declare that some hoverboards are safe.  But we’re clearly not at that point yet.

 

 

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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