San Antonio Injury Lawyer Blog

San Antonio employees of subcontractors, even if the landowner is the general contractor, may not be able to sue for injuries caused by the negligence of the landowner. The Texas Supreme Court decided last week that premises owners who pay their subcontractors' workers' compensation premiums are entitled to immunity from common law suits. The Court determined that the Workers' Compensation Act "exclusive-remedy" defense can be used against their subcontractors' injured employees. Three Justices, including the Chief Justice, joined in a dissenting opinion, pointing out the problems created by the majority interpretation.

Effectively, refineries and industrial plants will be able to shield themselves from liability for injuries caused to workers at plant sites. This shield will prohibit workers from bringing lawsuits for injuries and death caused by unsafe work sites. This Texas law will allow companies to decide whether to provide a safe work place or whether to just provide Workers Compensation Insurance. By providing the workers compensation insurance to all workers, both employees and subcontractor employees, an employer cannot be sued for its own negligence. Workers compensation insurance provides only the most basic coverage to seriously injured victims of work site safety failures: a small portion of the worker's wages, together with some medical benefits. An injured worker is not entitled to compensation for losses such as disfigurement, future impairment to wage earning ability, and other measures of compensation that Texas law allows to be recovered in most common law negligence lawsuits. Therefore, an employer can just weigh the cost of work site safety improvements and compare it to the cost of the Workers Compensation Insurance – and while the company saves money, the worker is short-changed.

Many members of the Texas Legislature voiced opposition to granting the blanket immunity to industrial plants and refineries. We hope that the Legislature will take the necessary steps to fix this injustice.

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Posted In: Injury and Safety issues , Insurance

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San Antonio Buell motorcycle drivers are at risk of serious injury or death because of a manufacturing defect. Some Buell motorcycles, manufactured by Harley-Davidson Motor Company, are subject to a serious safety recall. Buell is recalling a total of 3,316 motorcycles manufactured in 2008 and 2009.

The brakelines on the subject motorcycles were improperly routed and could come into contact with the front tire. This potentially could cause the brake line to leak and result in brake failure. The National Highway Traffic Safety Administration (NHTSA) has stated that the condition could cause the driver and rider to crash, resulting in injury or death. Dealers will re-route the front brake line and replace any worn brake lines free of charge. For additional details, visit the NHTSA Recall site, and enter the following Campaign ID in the search function: 09V109000

San Antonio personal injury victims need to be aware of recalls for any vehicle involved in an accident, and attorneys should be able to properly advise prospective clients about the impact such a recall might have on any potential lawsuit or claim. Occasionally a vehicle defect is responsible for an accident and only after a thorough investigation will all responsible parties be held accountable.

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Posted In: Auto Accidents , Defective Products

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More fatal auto accidents in San Antonio involve drivers with an alcohol level over the legal amount (.08) than drivers who have not been drinking. In San Antonio, Texas 48% of the motor vehicle drivers involved in fatal accidents were over the legal threshold of intoxication while 46% of the drivers had no alcohol in their system

There were 116 fatality auto accidents in San Antonio in 2007. Thirty-two of the accidents (27%) involved collisions with other vehicles, presumably injuring more than just one person. While forty-one accidents (35%) were collisions with fixed objects. Sixteen of the fatal accidents involved rollovers.

From these statistics it is obvious that two changes could dramatically decrease the number of auto accidents causing fatalities. The greatest decrease would come from reducing or eliminating drunk driving. Another decrease in fatalities would be achieved by making cars safer such as by increasing roof strength so that passengers could survive rollovers and by improving the passenger restraint systems in cars. If an intoxicated driver causes injuries, a claim against the liability insurance policy covering that driver; and if no liability insurance exists, a claim should be brought against the uninsured insurance covering the injured party’s vehicle, if uninsured insurance has been purchased on the policy.

If an intoxicated driver causes a wreck with a vehicle in which you or a family member are riding, an investigation should be made into where the intoxicated driver had been consuming alcohol before entering the roadways. If a commercial establishment sold alcohol to a person that was already obviously intoxicated, that bar or restaurant could be liable for the harm caused by the drunk driver.

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Posted In: Auto Accidents , Injury and Safety issues

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If you have ever been in a car wreck, you know things can get confusing and difficult in a hurry. If your car or truck has been damaged and is not drivable, you need alternate transportation to get to school or work. If you have been injured, you need medical attention. You may be getting numerous phone calls from persons offering "free" medical treatment or "free" legal advice. Insurance adjusters will call wanting a full explanation of what happened. It can be overwhelming. Below is a brief list of things to do, as well as things to avoid that should make your life a little less hectic after a collision.

First, if you are injured, or simply aren't sure what injuries you may have sustained because you still feel in shock, be sure to tell the officer investigating the wreck that you want medical assistance. If you have someone available to take you to an emergency room or to a clinic, and don't need an ambulance, be sure to tell the officer that although you do not need an ambulance, you are going to seek medical attention. San Antonio Police and Bexar County Sheriff investigating officers are supposed to document these communications and you do not want an insurance adjuster claiming you weren't hurt because you told the officer you were fine or that you would be "ok."

If your auto wreck happended in San Antonio, Texas, be sure to obtain a copy of the police officer's card, and the accident report number. You may need this information to secure insurance information against the at fault driver. Likewise, any investigating agency, such as a local sheriff's office or Texas Department of Public Safety Troopers will all be able to give you information on how to obtain a copy of your report. If you are contacted by an insurance adjuster, it is usually not beneficial to give a recorded statement until you have a clear head, and have had time to seek legal advice. If you answer a question poorly, or just get confused during the process, the insurance company will quote the recorded statement and use it against you.

Unsolicited phone calls with offers for "free" medical help, and/or assistance in finding a lawyer, should be looked on with scrutiny. A reputable physician or lawyer should not make an unsolicited contact with you or your family. If you feel you need assistance in finding medical attention, ask your friends and family. If you have health insurance, contact a doctor or seek emergency care (if needed) at a facility on your plan.

You may not need an attorney. Perhaps your insurance carrier will repair your vehicle, and you have not suffered any injury. In those circumstances, consider yourself fortunate, and put the wreck behind you.

However, if you feel that you need legal counsel and advice, research and talk with attorneys before making a decision. You should feel comfortable, confident, and secure in your decision. An attorney should talk with you and inform you about what can be done for you, as well as what cannot be accomplished. Legal assistants and paralegals play an important role in a law office, but clients should get legal advice from attorneys - ask to speak with an attorney directly. Additionally, most law firms that have been retained to handle a bodily injury claim will assist the client with property damage claims, and PIP insurance claims, without charging a fee.

The aftermath of an automobile accident can be difficult, but you have rights and you should not feel forced to make quick decisions that can have long-term impact. Protect yourself and seek competent counsel.

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Posted In: Auto Accidents , Insurance

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A seven month old child in San Antonio was killed by his grandmother's pit bull dogs this week. Earlier, a young child in Luling, Texas, was also killed by a pet dog. It is shocking to everyone in the community when a death occurs because of a dog attack; however, most people would be surprised to learn how many dog bites occur every year resulting in serious injuries.

Many people have been bitten by animals that, according to their owners, have never attacked or bitten anyone before. A common factor in many cases of dog bites is that the person bitten is a young child. Often the young child is being playful with the dog and the dog attempts to assert its dominance by biting. In the recent San Antonio dog attack case the San Antonio Chief of Police expressed his opinion that the dog had become jealous of the time the grandmother was spending with the infant.

Owners of dogs that have been accused of biting someone often respond that they had no notice that their dog had the propensity to bite or that the person bitten must have done something to cause the attack. Still others want a ban on Pit Bulls and other so-called viscous dogs. Owners of dogs need to restrain their pets when children are present especially very young children that do not know how to interact or respond to a dog. There are numerous legal theories to hold pet owners responsible for the injuries caused by their dogs.

Insurance companies often respond that their insured, the owner of the dog, are not responsible for a dog bite or an attack if they had no notice that their pet had the potential to harm someone. Some breeds of dogs are known to be aggressive, though owners of the suspect breeds dispute that belief and assert that any attack is the result of poor training. However, many dog owners essentially admit liability when they state that the dog was more of a guard dog than a family pet; essentially admitting that the dog’s aggressive personality is a desirable characteristic. The owner of the dog that attacked the infant in San Antonio had posted on the fence around her yard warnings of the "Security Dog", therefore, implying she had notice of the dog’s aggressive personality.

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Posted In: Injury and Safety issues

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Mexican long-haul trucking companies were given increased access to Texas highways by the free trade treaty signed in 1993 between the United States and Mexico. The trans-border trucking program was intended to ease trucking shipments between Mexico and the United States. The program was halted because of safety issues with the trucks and drivers from Mexico. In 2007 a small pilot project that was intended to give a small number of Mexican carriers access to Texas highways attempted to show that trucks and drivers from Mexico would not endanger drivers within the United States.

Until Mexico can establish that Mexican authorities maintain safety records on their trucks and drivers these trucks should not be allowed on our roads and highways. The United States Department of Transportation and the Texas Department of Public Safety have vigorous licensing requirements for trucking companies and commercial drivers. The Texas Department of Public Safety suspends commercial drivers licences if a commercial operator commits various traffic offenses - even if in their personal vehicles. In the United States truck drivers are required to maintain logs to show that they are not driving while fatigued. Failure to maintain the proper logs and keep a commercial vehicle properly maintained can result in driving privileges being suspended or the imposition of large fines.

Eighteen Wheeler (18) accidents occur too frequently and cause tremendous personal injury to Texas drivers even without an onslaught of truckers from Mexico.

If an accident is caused in Texas by a trucking company that is based in the United States it will likely have sufficient insurance to compensate an injured person. Furthermore, if the driver of the U.S. based company failed to maintain the proper logs or failed to maintain his vehicle the injured party will be able to use those deficiencies against the driver and the trucking company. However, if the accident is caused by trucking companies based in Mexico it will cause many logistical problems and will likely make any recovery more difficult to obtain and collect.

On March 16, 2009 Mexico threatened to impose tariffs on 90 products from the United States in retaliation for the cancellation of the program that allowed the Mexican Trucks to ship throughout the U.S. Because of the enormous risks imposed by eighteen wheeler accidents the United States should not let Mexican trucks on our roads until it can be established that they safe and that its drivers have training comparable to that of U.S. drivers. Because of the threat of life-altering injuries and death that can be caused by these huge tractor-trailers, we would also suggest that the minimum limit of liability insurance for companies operating commercial trucking ventures in the United States be raised to $5,000,000.00 for injury or death caused by a negligent driver or negligent carrier.

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Posted In: Auto Accidents , Injury and Safety issues

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On March 6, 2009 in an article entitled "Political Lobbying Drove FDA Process” the Wall Street Journal chronicled how a medical device manufacturer had its product that is intended to be implanted into patients knees quickley approved because of its lobbying efforts. The medical device had the normal review and investigation short circuited.

Medical devices can get quick approval if the device is similar to a product already on the market. The rational is that the first product went through a vigorous review and had studies backing its efficacy and safety; therefore a second product (a copy cat of sorts) shouldn't have to go through the vigorous studies and review. This fast-track review is called a 510(k) by the FDA, and is intended to be used only when similar products have already been reviewed and approved. This 510(k) fast-track review saves companies money and speeds products to the market where profits can sooner be realized.

The Wall Street Journal Article reported on how ReGen Biologics Inc. was able to have its Menaflex knee device quickly approved through the 510(k) fast track review even though some within the FDA did not believe that it should qualify for the fast track review process and instead should have had to go through a more vigorous vetting process. According to the article, the head of the FDA, when asked about the 510(k) allowance for this particular product, was quoted as saying "There's something wrong with how that decision was made." This provides more evidence that consumers need to be able to pursue claims against manufacturers of faulty medical devices if they are injured. The Government Accountability Office, in January, issued a statement indicating that the FDA is too quick to allow 510(k) approvals. Quite simply, the FDA is incapable of monitoring all of the products they are supposed to oversee.

We have no opinion regarding, and this entry is not a comment on, the safety or efficacy of the ReGen Menaflex device; this entry merely points out that the FDA appears unable to adequately perform its functions and therefore puts American consumers at risk. The only safety net for the American consumer when regulation fails, is the ability to bring a private suit seeking compensation for losses. If manufacturers are allowed to hide behind the laws that give immunity to many FDA approved devices, and obtain approvals perhaps without a full review and proper vetting, our citizens will remain at risk.

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Posted In: Drugs and Medical Devices , Injury and Safety issues

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The Food and Drug Administration (FDA) is responsible for researching and approving new medicines, staying abreast of those medicines on the market, regulating medical devices, and monitoring and ensuring the safety of approximately 80% of our food supply. Most people don’t realize the FDA also regulates many devices that emit radiation such as cell phones, computer monitors, as well as a host of other products. The FDA also regulates cosmetics and many products used in the production of food, including animal feed.

With the globalization of food and drug production it is no surprise to find that the FDA has been unable to do its job as mandated. The FDA's budget has essentially been flat for years even though many managers and administrators in the FDA have called for a doubling of their budget. Recently an article published March 14, 2009 in the New England Journal of Medicine pointed out the difficulties faced by the FDA. The article entitled "A To-Do List for the New FDA Commissioner" points out many of the difficulties faced by an increasing workload at the FDA and suggests many changes that need to be addressed.

The primary focus of the FDA is the protection of the United States consumer. It is obvious that the FDA is not capable of monitoring all of the products under its umbrella that are made in the United States and certainly not those entering the U.S from foreign countries such as China. With the FDA stretched beyond its limit and the Federal Budget unable to fully fund the FDA an obvious choice is to remove the private lawsuit protections that medical device makers and drug manufacturers have taken advantage of in the past. Congress originally attempted to essentially grant immunity to drug and device manufacturers in many circumstances, if the FDA had approved a product. Inasmuch as the FDA cannot properly research and evaluate every product, private consumer litigation is the only avenue to seek redress from harmful drugs and devices. Legislation has been introduced in the current session of Congress to accomplish this task. We as a country need to either fully fund the FDA or allow consumer protection lawsuits. Innocent people are being harmed or killed by unsafe food, drugs or medical devices and many of those harmed currently have no relief in the courts.

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Posted In: Drugs and Medical Devices , Medical Malpractice

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It was recently reported by the Texas Department of Public Safety that a motorcycle accident north of San Antonio claimed the life of the motorcycle driver. It was also reported that the motorcycle driver was not wearing a helmet. Most safety experts agree that wearing a motorcycle helmet decreases the likelihood of a cycle crash fatality by approximately 35 to 40 percent.

Adult motorcycle riders in Texas are not required to wear helmets. A large percentage of motorcycle riders in Texas prefer to go helmet-less because of the freedom and perceived improvement in field of view. Opponents of mandatory state helmet laws have argued that helmets negatively effect their ability to visually detect vehicles in other lanes and that the helmets also reduce their ability to hear auditory signals such as horns and the sound of nearby traffic. Studies by the National Highway Traffic Safety Administration tend to dispute the claim that helmets negatively impact safety because of a perceived reduction in vision or hearing; however, a helmet may reduce vision when changing lanes. These factors do not override the safety effect that protecting the rider’s head promotes. Motorcycle operators may need to exercise caution when changing lanes, but that conduct rests on all drivers. Not addressed in the studies of injuries is how many of the accidents were caused by reckless drivers not being on the lookout for motorcycle drivers. Motorcycle drivers in Texas often complain about aggressive automobile drivers and drivers of cars and trucks often cause injury to motorcycle riders and passengers as a result of not keeping close attention to all users of the streets and highways.

It should be noted, however, that various helmet styles and varying manufacturers have differing safety profiles. All motorcycle helmets are required to meet Federal Motor Vehicle Safety Standard 218, which is the minimum level of protection. Some helmets provide more protection and no helmet should provide less than the standard. In a motorcycle accident involving serious head trauma to a helmeted operator or passenger it may be necessary to investigate the safety profile of the helmet that was being used.

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Posted In: Auto Accidents , Injury and Safety issues

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It is likely that there will be one or more motor vehicle collisions in San Antonio, Texas involving recalled vehicles. What is interesting is whether any of the lawyers or investigators will take the time to determine whether a recall on any of the vehicles may have contributed to the accident and therefore the injuries.

Auto accidents have many potential causes, many of which will never be discovered unless a thorough investigation is completed. One of the areas that can often lead to discovery of useful information is the National Highway Traffic Safety Administration (NHTSA) and particular its listing of defects and safety recalls.

As an example GM announced on February 17, 2009 a recall of over 8000 Pontiac G6 vehicles because the brake lamps may not illuminate when the brake pedal is depressed. This failure is caused by corrosion in the bulb connection. Many individuals may not get the notice that their vehicle has a recall, or they may ignore the vehicle recall because they mistakenly believed that fixing the safety issue will cost them money.

Failed brake lights can cause a car wreck to occur because one party doesn't see brake lights in front of them, and the other driver is unaware that their brake lights did not illuminate due to the defect. In a case that results in serious, life threatening injuries, or death, perhaps the manufacturer of the defective brake light will be the responsible party. Only a thorough investigation of your auto accident can determine all potential responsible parties.

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Posted In: Auto Accidents , Injury and Safety issues

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More and more Americans rely on nursing homes to provide care for elderly parents and grandparents. Unfortunately, many nursing homes are understaffed and are not providing the level of care that is required. In addition, there are many cases of outright abuse of elderly residents. The Bush Administration, last fall before leaving office, enacted a rule that designates state nursing home inspectors and all Medicare or Medicaid contractors as federal employees. This simple change of designation can have profound impact on any legal action concerning neglect or abuse that occurs in nursing homes. By designating these investigators as federal employees, these individuals are much more shielded from providing evidence. In order to obtain depositions of these investigators and information contained in the files, litigants will now have to go to much greater lengths, and incur much greater expense, in an effort to attempt to retrieve inspection reports or to obtain depositions in cases.

Essentially, these individuals are prohibited from participating in private lawsuits where a facility that receives federal assistance is involved, unless approval is obtained from the head of the Department of Health and Human Services. Maneuvering these bureaucratic channels can cause significant delays in proceedings while state judicial proceedings and federal agencies grapple over these requests.

It is an injustice and an attack on human dignity when elderly nursing home residents are injured and harmed at the hands of a negligent facility; adding a bureaucratic nightmare to the process of seeking redress only adds to the injustice and indignity.

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Posted In: Injury and Safety issues , Medical Malpractice

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Drug Companies appear to have too much influence over the regulatory governmental agencies that are supposed to determine whether a drug is effective and safe.

Federal Regulators with the Food and Drug Administration (the "FDA") admitted that they should not have "uninvited" a leading cardiologist to a panel that was going to decide whether to approve a cardiovascular anticlotting drug (prasugrel hydrochloride) made by Eli Lilly & Co. As was reported in the Wall Street Journal this week, Dr. Sanjay Kaul is a well known cardiologist that had been critical of Eli Lilly's drug prasugrel and Dr. Kaul had even written several articles critical of the new drug. Dr. Kaul was scheduled to participate in the FDA committee meeting that was assigned with the task of reviewing the drug and deciding whether to grant FDA approval to Eli Lilly & Co. to manufacture and sell the drug. Prasugrel, according the Wall Street Journal article ("FDA Says it Erred on Doctor", Favole, J., February 24, 2009), has been linked to dangerous internal bleeding.

The all day meeting of the Cardiovascular and Renal Drugs Advisory Committee was scheduled for February 3, 2009 in Maryland. In the days prior to the scheduled meeting Eli Lilly contacted certain FDA managers and questioned the decision to have Dr. Kaul's included on the panel because of his published articles critical of the new drug. Apparently, following the calls from the drug manufacturer, FDA managers told Dr. Kaul to not take his flight from Los Angeles to Maryland; he was essentially told he was not welcome at the meeting.

FDA managers are supposed to screen potential advisory panel members for financial conflicts of interest - having received money or other compensation from a company being reviewed - or for intellectual bias - if a person has already made a decision prior to hearing the evidence presented. Although Dr. Kaul was screened for financial conflict of interest, and he had none, apparently there was no other screening done upon which to base a decision to exclude him. The only basis for excluding Dr. Kaul appears to be the phone calls from the Eli Lilly & Co. representatives. With Dr. Kaul removed, the panel unanimously voted to recommend approval.

The Director of the FDA Drug Division, Dr. Janet Woodcock, has been quoted as saying, "At every step of the way there were errors by multiple parties. Dr. Woodcock was apparently never informed, nor were other higher level FDA officials about the phone call from the drug manufacturer or the decision to uninvite Dr. Kaul from the panel. John Jenkins, the Director of the FDA Office of New Drugs stated, "I think he [Dr. Kaul] would have been a very valuable member [of the panel]."

The drug is not on the market yet, and the final decision to approve or not approve is still pending.

The exclusion of Dr. Kaul from the committee meeting, alone, does not mean that the drug is unsafe or is not effective for its indication. However, our system of FDA review only works if sound science presented by competent researchers is allowed to be presented at committee meetings - even if it is counter to the drug company’s financial interest. In order for patients to be protected, the FDA must allow for an open and robust dialogue and cannot allow pressure from drug manufacturers to sway or interfere with the application and review process. Drugs that have undergone the approval process can still harm patients or even be fatal; and the patient or their family suffer a further injustice if the approval process was affected by the very company selling the drug.

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Posted In: Drugs and Medical Devices , Medical Malpractice

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