San Antonio Injury Lawyer Blog

Over 89% of Texas Nursing Homes were cited for violations of federal health and safety standards last year, and for-profit homes were more likely to have problems than other types of nursing homes, federal investigators say in a recent report.

About 17 percent of nursing homes across the United States had deficiencies that caused “actual harm or immediate jeopardy” to patients, said the report, by Daniel R. Levinson, the inspector general of the Department of Health and Human Services.

Problems included abuse and neglect of patients, infected bedsores, medication mix-ups, and poor nutrition.

The cap on medical liability damages has further limited the protections for the most vulnerable Texas citizens. Because of the caps on damages it is impossible to collect more than $250,000.00 for the pain and suffering imposed on the aged, disabled, or infirm. The caps do not allow for any adjustment for crippling, scarring or any other severe injury. Furthermore, many Texas lawyers will not pursue cases against nursing homes because of the cost versus rewards.

Until the Texas Caps on non-economic damages is changed there will continue to be bad nursing homes caring for our most vulnerable citizens.

In 2003 the Texas Legislature passed many sweeping laws that directly affect the right of injured patients to have recourse against a doctor or hospital that caused them harm. Every lawsuit filed has a cap of non-economic damages placed at $250,000. This means that damages for the emotional loss a child's mother, or a medical mistake that causes permanent scarring and disfigurement, or the losses a grieving parent can receive if their child suffers death at the hands of a negligent healthcare provider, are capped at $250,000. and no recovery above that amount can be sought for those injuries and losses.

If a patient suffers economic losses, such as lost income or future hospital bills, those can be recovered in addition to the non-economic losses. Essentially, if a highly paid executive (or perhaps a highly paid doctor) is injured at the hands of a negligent hospital, they can recover the cap amount, along with compensation for all of their future lost earnings. A housewife, child, elderly retired individual, however, is left without any options.

The result is simple. The legislature told us they were going to stop "frivolous cases" from entering the courts. Then they proceeded to place caps and barriers on valid, meritorious cases. Attorneys that handle medical negligence cases now have to repeatedly tell injured victims that they have a valid complaint, but because it is so expensive to pursue a doctor or hospital, and because the laws do not allow then full recovery, their case cannot be pursued. The proponents of the law indicated that the so-called "medical malpractice crisis" needed caps to lower insurance premiums for doctors and to stop doctors from leaving the practice of medicine. However, there is no reliable evidence that malpractice caps reduce insurance rates. And, if medical malpractice payouts are reduced by these caps, it is at the expense of the most severely injured.

When the law was being proposed, a former Republican Texas Supreme Court Justice argued against amending the constitution to cap these cases. Now, the Texas Hospital Association and the Texas Medical Association have decided to use the court system for their own benefit. They are seeking to have the Texas Supreme Court hold that the law passed in 2003 was constitutional. They have preemptively file a suit seeking this ruling to effectively cut off other potential challenges to the cap law that may be filed by victims in the future.

The recent Metrolink commuter train crash in California raised the awareness level of most people when it comes to using electronic equipment while driving. It has been reported that the train engineer who failed to see a red light, was texting with a teen minutes before the fatal crash. Unfortunately, driving while texting has reached a point where your safety is at risk. First, it should go without saying that it is irresponsible to attempt to engage in a text conversation or communication while operating a motor vehicle. But now, all of us need to be aware that many drivers on the roadway do engage in such risky behavior. A study in the United Kingdom found that driving while texting impairs response and reaction time more than marijuana or alcohol! Visit the RAC Foundation site to view the full study results showing how texting impairs driving.

What does this mean for those of us driving on San Antonio streets? Unfortunately, it means if you are ever in a car wreck caused by someone else's negligence, you may need to subpoena their cell phone records to establish whether they were engaged in a conversation, or worse, texting at the time they hit you. According to the study referenced above, texting impaired the reaction time of 17-24 year old drivers in a simulator by 35%! As a comparison, the reaction time was slowed by 21% after inhaling marijuana and 12% slower after consuming alcohol to the legal limit. The same study found that almost 50% of drivers age 18-24 texted while driving.

Police officers investigating a wreck typically ask, or make their own determination based on an investigation of the circumstances, whether one or more of the drivers involved in a vehicle crash have consumed alcohol or drugs. Now, if the police don't start asking, in cases where fault is disputed or there does not seem to be an otherwise clear explanation, your attorney may need to consider inquiring and issuing a subpoena for these important cell phone records to determine just what may have been distracting the driver that hit you.

When the decision must be made to place a loved one in a nursing home, many fears come to mind. Will they be treated well? Will they receive the care and attention they need at this time in life? Will their personal belongings be safe?

Nursing home residents are, in many instances, at the complete mercy of their caregivers. When that trust is violated by abusive behavior, the elderly are victimized greatly. Our worst fears regard the physical safety of our loved ones that are placed in nursing homes.
However, even personal property can be at risk. A recent report out of Austin, Texas tells of a nursing home employee being charged with injury to an elderly person - for stealing from residents.

AUSTIN, Texas (KXAN) - Austin police are searching for a former nursing home employee accused of stealing jewelry from elderly residents in her care. Gina Lewis,23, is charged with injury to an elderly person, according to warrants for her arrest. Police believe she stole jewelry from several women at the Loyalton of Austin Assisted Living Center while she was an employee. The thefts allegedly occurred in May and June of 2008.

As family members, we must be vigilant in our efforts to protect our elderly and infirm that are placed in nursing centers for care. There are several ways to help protect nursing home residents. First, visit often. While this seems obvious, there is a subtlety to this rule. Not only should family visit their relatives often, but they should do so at different times of the day, and on different days of the week. If a pattern develops, then there are predictable times when visits will take place and likewise predictable times when no attention is focused on the resident. A caregiver without regard for the rights and dignity of the elderly can take advantage of these patterns. Personal jewelry and other valuables should be kept to a minimum. In addition to the problem of simply not keeping track of multiple pieces of jewelry and personal mementos, having valuables laying around can be very tempting to those that have no regard for the rights of others.

Clearly there are very qualified and caring facilities in San Antonio, and throughout Texas; however, vigilance and taking the steps to protect your family is never to be underestimated. Every resident in a Texas nursing home has rights. Furthermore, there is valuable information provided by the Department of Aging and Disability Services allowing Texas residents the opportunity to review and compare nursing homes in their area.

Abuse and mistreatment of the elderly is a crime in Texas and if a family member has suffered, contact your local law enforcement agency as well as a private attorney experienced in these matters to assist you in protecting your family.

The United States Government has issued a recall order, requiring Ford Motors to repair and/or replace defective wiring in certain vehicles. This is the second warning and it was issued because there are still nearly 5 million vehicles that have not been brought in by owners for the necessary repairs. The complaint centers primarily on the F-150 pick-up series as well as several SUV models, and the safety concerns focus on the potential for engine fires to ignite.

For your own safety, if you own a Ford, Lincoln or Mercury truck or SUV, see the full list of recalled vehicles to determine if the recall applies to you.

A NHTSA spokesperson was quoted in the Houston Chronicle describing the recall as involving "a very serious safety risk." It was noted that at least 60 vehicle owners had reported engine fires during the time frame that the initial recall notices were sent out. According to Ford, there have not been reports of injury or accidents related to the safety issue, but out of the estimated 12 million vehicles affected, there are still 5 million un-repaired vehicles on the road.

If you have an issue with a defective vehicle, and substantial damage to the vehicle, or worse, injury or death has occurred, contact an experienced attorney immediately.

A frequent but undiagnosed heart injury can be caused by impacting your chest against the steering wheel of an automobile during an automobile accident. Serious injury to the heart can be caused even though there appears to be no external sign of injury. The most common injury to the heart is a myocardial contusion, or bruising.

1 - bruise of the heart muscle

Myocardial contusion may cause arrhythmias, or other electrocardiographic abnormalities resembling an infarction. It is important to keep in mind that changes in heart function or readings of heart function can be caused by an auto accident where someone suffered blunt force trauma to the chest. Some of the manifestations can occur weeks and even months after the traumatic event. Some typical symptoms to be aware of include chest pain, shortness of breath or an irregular heartbeat. In a severe impact, bruising of the heart muscle can lead to serious consequences.

More serious injuries are possible but occur less frequently. Possible injuries include rupture of vessels or ventricles or tearing of pericardial vessels or arteries. Some of the more serious injuries can cause instant death or rapidly progressive heart failure.

If you are in a serious car accident and hit your chest on the steering wheel, dash, or even took the full force of the airbags, it is advisable to convey to your medical providers any perceived changes in cardiac function even if you have no visible injuries.

Retailers in San Antonio and throughout Texas have been notified of two large recalls of potentially dangerous baby cribs and basinets. The recalls involve bassinets and cribs made under the Simplicity brand and to a lesser extent the Graco brand. The recall does not include all cribs and basinets made under those names. The recall involves approximately 900,000 convertible basinets and 600,000 cribs. Information about the recall can be found at the website for the Consumer Product Safety Commission (CPSC).

The recall is complicated because Simplicity has gone out of business. The Simplicity brand and assets were bought by SFCA Inc. SFCA Inc. did not manufacture the defective products and has maintained that it is not liable for the defective products or the cost of the recall.

This recall highlights a serious problem with Texas Product Defect Law. Under Texas Law a non-manufacturing seller of a Defective Product is normally not liable for harm caused by the defective product. There are limited circumstances when a seller can be held responsible for selling dangerous products to the public. A seller of a dangerous products can be held responsible only if the injured party can prove one of the exceptions to immunity as set out in the Texas Civil Practice and Remedies Code §82.03. In this case the manufacturer is out of business and the seller is probably not liable for any harm.

It has recently been reported that the world's largest insurance carrier - insurance giant AIG - is in deep financial trouble. According to various AP reports, AIG is in immediate need of between $20 and $40 million dollars, and may require as much as $70 - $80 million for long term needs. The entities that rate insurance companies for investment purposes (Standard & Poor’s, Moody’s Investors Services and Fitch Ratings) have all reduced the score of AIG in recent days.

While company investors and executives battle the financial worries and attempt to quell a worried market, many individuals with life insurance policies are concerned over whether they will still have protection for their families in the event that AIG goes under. After quick debate a decision was made by the United States government to provide $85 million in funding to the insurance company to keep it afloat. So, in the short run, it appears that AIG will survive and can attempt to continue its business enterprise. However, the scare placed many life insurance and other policy holders in fear of losing their protection. Policy holders in Texas should know about certain protection plans in place in the event of a worst case scenario.

In the event that an insurance company, such as AIG, becomes insolvent, the State of Texas created a fund that can provide assistance and cover those policy obligations, at least partially. More information can be found by reviewing the information contained at the Texas Life, Accident, Health & Hospital Service Insurance Guaranty Association.

Policy holders whose life insurance is provided by AIG should not panic, inasmuch as the financial crisis has been weathered in the short run; but, if a company does not survive, Texas residents will have some recourse for protection through this State created agency.

Our firm receives many calls regarding potential medical malpractice claims. Not all medical errors can rise to the level that will allow for a lawsuit or claim to be made because many times the conduct complained of violates the physician's obligation to the patient but is not a direct cause of harm. In those cases we usually refer the patient to the Texas Medical Board.

If a physician has violated a patient's rights, or failed to properly conduct himself or herself, the Texas Medical Board has procedures to investigate. Patients sometimes feel that the Medical Board is there to protect the physicians and will not help them. It is our experience that the Board will investigate these claims and pursue action when necessary. Just last month, the Board took action against 48 Texas doctors. However, there are many times when a patient has a complaint that does rise to the level of potential malpractice under Texas law.

A thorough review of all medical records by one an experienced medical malpractice attorney is only the starting point. A competent and qualified physician should also review the records. Once these two reviews have been completed, an examination of any previously complained of conduct of the doctors, nurses and hospitals involved should be undertaken, as well as an in-depth investigation of the credentials and history of the involved healthcare providers.

In this age of the internet, available publications and medical journals can be researched to supplement one's knowledge in any particular area of medicine. Often, when a leading journal article is found, attorneys can contact the author to make further inquiry and perhaps retain that individual to assist in the case.

In short, Texas patients do have rights, and the Texas Medical Board can assist in circumstances that do not rise to the level required for court intervention.

We were excited to learn about the new Food and Drug Administration (FDA) list of drugs being investigated. We often get calls from medical patients who suffered severe injuries potentially from prescription medicines. Often it is impossible to determine whether the FDA is investigating the adverse event or even whether the medical issue was an adverse event caused by the prescription drug.

The Food and Drug Administration (FDA) started a new program where they will list on their website drugs that they are investigating for possible side effects. The change in policy of providing advance warnings is meant to warn patients and health care professionals about possible side effects. The current list of 20 drugs is varied and includes potential side effects ranging from heart attacks and cancer to Purple Glove Syndrome which can result in the amputation of a patient's arms.

Being on the list doesn't mean that it has been determined that the drug has the side effect being investigated; also, not being on the list doesn't mean that a particular drug doesn't have side effects. The list is merely an advance warning that a particular side effect is being investigated. Any decisions about whether to take a particular medicine should be made after consulting with our health care provider.

The stated purpose of the list is to get more patients reporting adverse events as well as to open a dialogue between patients and their physicians about possible side effects. The list is not meant to contain all drugs under review or being investigated by the FDA; furthermore, the list will be issued on a quarterly basis with drugs being added or removed from the list. It is unclear whether the list will be cumulative or whether each quarter the old list will be replaced with a new list of approximately 20 drugs.

Current drugs on the list include: antidepressant Cymbalta and painkiller Oxycontin.

The Food and Drug Administration (FDA) is obligated to monitor our nation’s food supply for safety as well as evaluate and approve for sale in the United States prescription drugs and medical devices. However, recent reports of large scale outbreaks of food poisoning, dangerous drugs causing death and injury as well as tampering with chemicals imported from China that were used in the drug manufacturing process have called into question the FDA's ability to protect consumers.

The New England Journal of Medicine recently published an article that questioned whether the FDA can adequately monitor and evaluate the prescription drugs being approved. Also, members of the House of Representatives jointly sent a letter on February 4, 2008 to an officer of the Eli Lilly Company stating that the decrease in Funding for the FDA over the past 35 years has forced a 78% reduction in food inspections and that their scientific core has been eroded to the point that they can no longer fulfill its core regulatory functions.

During the current election year cycle and while listening to the debates it is important to remember that the Federal Government has many important fundamental functions one of which is to keep its citizens safe. The FDA is currently unable to perform its functions and is therefore placing everyone at risk of death or injury from dangerous food, drugs and medical devices.

The FDA's lack of funding is made even more dangerous by a Supreme Court that has routinely denied people the right to sue for dangerous drugs or medical devices. Currently there is a theory called preemption that is gaining acceptance by the Supreme Court. Under preemption if the FDA approves a drug or medical device you probably could not sue for damages, even if the drug or device clearly caused the injury.

The reasoning used by the pro-business court is that we cannot let 12 untrained citizens second guess scientist at the FDA. That sounds reasonable until you learn how the under funded FDA operates. The FDA often takes the information and studies provided by the drug or device manufacturer and reviews it with an under funded staff. They do not do their own studies and have to rely on the honesty and integrity of the companies that profit only if their drug or device is approved.

Needless to say if the threat of a lawsuit is taken away by preemption there will be more dangerous drugs and devices in the marketplace.

There have been several recent stories in the San Antonio news media involving hit and run automobile accidents. The trauma inflicted by a hit and run driver, and the injuries suffered by a victim of hit and run drivers in San Antonio, Texas can be devastating. Unfortunately, the pain and injury can be compounded unless the victim carried uninsured/underinsured motor vehicle protection coverage on their personal auto insurance. If the perpetrator flees the scene, and the victim cannot identify the hit and run driver in order to make a claim against the perpetrator's insurance, the only available option may be if the victim had uninsured/underinsured protection.

Uninsured/underinsured motorist insurance protects you, and your family riding in your vehicle, from persons that cause an accident and either do not have insurance, or do not have enough insurance to pay your hospital and doctor bills, lost time at work, and other recoverable losses under Texas law. Likewise, if another driver hits your vehicle causing a wreck, and then flees before they can be identified, the uninsured coverage on your policy will protect you and pay those losses.

Uninsured/underinsured coverage is usually very economical, and much less than the cost of the original liability policy that Texas law requires drivers to maintain. By adding this valuable insurance coverage to your policy, you can protect yourself and those traveling in your vehicle. If injuries are sustained, your losses and the damage to your vehicle can be protected on your own insurance policy and you can prevent yourself from being victimized twice.

Texas law requires that this coverage be offered to you, and you must sign a waiver of this coverage when purchasing auto insurance. Before you conclude that you do not have this coverage, you or an attorney on your behalf, should verify that a signed waiver of this important insurance coverage exists.