San Antonio Injury Lawyer Blog

In March, San Antonio medical malpractice victims were once again trumped by Texas laws that protect insurance companies and the medical industry. The Texas Supreme Court, in Methodist Healthcare System of San Antonio, Ltd., LLP, et al v. Rankin, held that a law passed by the legislature imposing an absolute 10-year time limit to bring medical malpractice claims trumped the Texas Constitution and the "open courts" protections therein.

Briefly, in 1995, the victim of the malpractice underwent a surgical procedure. Apparently a surgical sponge (typically an 18" x 18" gauze pad) was left inside of the patient. She was discharged and never informed of this event. In 2006, after suffering abdominal pain, she was informed by a physician that there was a surgical sponge left inside of her - necessarily dating back to the only prior surgery in 1995. Once a sponge or other foreign object is discovered, a second surgery becomes mandatory, and there are often complications with infection, scarring and adhesions with these follow-up surgeries.

The patient sought legal counsel and attempted to seek compensation for the unnecessary surgery, medical bills and any future consequences directly related to the retained sponge. The hospital and doctors involved in the original surgery sought to have the case dismissed under the legislative mandate that, once 10 years passes the negligent conduct of a hospital, doctor or other healthcare provider cannot be complained about in court. Despite the fact that no physician ever told the victim that she was suffering because of this sponge that had been left inside of her until after 10 years had passed, the court ruled that the legislature intended to protect the healthcare industry and give protections to the insurance companies that cover these events, and that the 10-year time limit did not violate the Texas Constitution.

Clearly, time limits are put on cases for legitimate reasons. There must be some closure for events that are known to have caused damage or injury, and legal protections should be instituted within those time frames. However, the "open courts" provision of the Texas Constitution was put in place for the very instance where an individual that had no way of knowing that there rights were violated. This malpractice patient acted promptly and reasonably when the violation was discovered, but the legislative bar imposed by politicians that would rather protect the medical and insurance lobby over patients prevented her from obtaining any relief.

Medical malpractice laws contain a myriad of hurdles and pitfalls. If you or a loved one has been the victim of malpractice, seek an experienced voice to guide you. An experienced medical malpractice attorney can advise and consult with you about your rights, and how to protect those rights even under the current state of the law.

If you, or a loved one, has suffered an injury because of another persons negligent conduct, or, if a business or manufacturer has caused permanent loss or caused the wrongful death of a family member, choosing the right San Antonio personal injury attorney can be a daunting task. There are many well-qualified and proven attorneys in San Antonio; unfortunately, there are also attorneys that are not. How can you help make the best decision for you or your family? Nothing is more important that research, and here are a few things that you should consider:

1) Is the attorney experienced in the field?

Years of experience are important, but more than longevity, ask about the number of years a lawyer has been handling your particular type of case. Also, ask about trial experience and accomplishments as an attorney in that particular field.

2) Is the attorney Board Certified?

Board certification requires that an attorney have a sufficient number of years of experience. But, in addition, to become board certified a lawyer must pass written examinations, provide references from other attorneys and judges, and be able to prove their track record and experience in the courtroom.

3) Does the attorney and firm have the resources to engage in long-term litigation?

Visit the attorney's office and ask questions about similar cases handled and the costs involved. Competent and qualified law firms will have the resources to spend money to investigate all avenues involved in a case; they will have the ability to hire the most qualified experts in the United States; they will have a track record of battling large companies and corporate law firms and not backing down or being overwhelmed. Will the law firm pay all of the expenses of litigation, and only receive reimbursement and attorney fees if they case is successfully concluded? This is known as contingency representation, and the law firm should have the financial and legal resources to handle a case without asking the personal injury victim to risk money.

4) Trust your instinct.

Above all else, you must feel confident and trust in the lawyer and law firm you choose. Most serious cases are not handled and done in a month or two - rather, most serious cases involve a long-term fight. Negligent doctors and product manufacturers usually deny and fight, rather than admit and accept responsibility. Most insurance companies, even if the at fault driver admits to causing a collision, doubt and delay claims rather than objectively evaluate and promptly pay due losses. You need to feel comfortable with your choice when you hire an attorney. Make sure your questions are answered, and make sure you feel trust in the responses. Good lawyers will not be offended by questions, nor should they make you feel like you must sign a retainer contract before thinking about your decision.

No doubt you will have many other areas of inquiry when seeking to hire a lawyer. In the end, you should be thorough in your search. Fast talk and sound bites are not the basis for a good choice. Using your instincts and treating the decision with the weight it deserves will allow you to feel good about your choice.

In response to recent automobile accidents involving city employees, the San Antonio City Manager issued a directive that any employee that is involved in a vehicle collision will undergo drug and alcohol testing to determine whether impairment may have been a factor in the wreck. Following an accident involving a city-owned vehicle causing injury to a man in a wheel-chair, and a fatal traffic accident involving a police officer driving his city vehicle, the city manager directed that any city employee shall be tested for drugs and alcohol to offer the public assurances and to prevent later accusations being raised against the city employee.

The San Antonio Police Chief sent a memo to his officers directing that officer-involved accidents will require field sobriety tests to be administered. Unfortunately, the field sobriety tests are very subjective, and allow the officer administering such tests great leeway and latitude in interpreting the results. Requiring breathalyzer tests might offer more to the public trust.

Auto accidents causing personal injury can have long lasting impact on individuals and families. In addition to investigating drug and alcohol use, San Antonio personal injury attorneys should investigate cell phone records and other items of potential cause when determining fault following a vehicle accident. As we have discussed in prior entries, texting while driving is becoming much more common, and presents a danger equal to intoxication.

Serious dog bites can occur to anyone, even the famous. A famous soccer coach from Argentina, Diego Maradona, has undergone plastic surgery on his face after being bitten by one of his dogs. Apparently, Mr. Maradona was seriously injured when one of his dogs bit his lips and then continued to hold until the tissue was torn.

Most people have heard of horror stories when an individual is attacked by a wild dog or dogs while outside. However, most dog bites occur either in the dog owner’s home or close to the property owners property lines.

It is believed there are two reasons for the majority of dog bites to occur while on someone’s property or in their home. The first reason is that dogs can become territorial and feel as though they are protecting their master or their own area; secondly, the person attacked often allowed an allegedly domesticated pet get too close or tried to pet the animal.

We have had a number of dog bite cases where the dog was a small lap-type dog that is placed upon the visitor’s lap. The dog becomes either frightened or agitated and bites the visitor in the face and often on the lips as was done to Diego Maradona. If you are attacked by another homeowner’s dog, the homeowner’s liability insurance can provide compensation for medical bills, scarring and other related losses that are a result of the dog attack.

San Antonio injury lawyers are united in their outrage over a law that is referred to as the “paid and incurred” law. The Texas legislature passed this law in 2003. In 2005 the legislature, with the backing of medical professionals and legal professionals, attempted to undo this mistake, but the governor failed to sign the new legislation. In short, the law states that when an injured party seeks to recovery for his personal injury all that can be submitted are those bills that have been “paid and incurred”. Previously, the injured party could submit the value of the medical services they require to become whole or in other words the non-discounted value of the medical services provided.

As an example: A hardworking Texan buys health care for his family. Part of the benefit of health insurance is that your health care providers agree to provide their services at a discount to all members of that health plan. The hardworking Texan buys the health insurance to protect his family and because it is against his principles to place the risk on society if something catastrophic happens to him or his family.

If the hardworking Texan and his family are hit by a drunk driver sending them to the hospital, they will get medical treatment at a substantial discount because of their foresight in buying health insurance. The discount provided by health insurance plans vary but can often be approximately 75%. Because of “paid and incurred” the drunk driver gets a substantial break on the economic damages and is only responsible for the 25% of the medical bills paid by the insurance company. Prior to “paid and incurred” the drunk driver was responsible for the reasonable value of the services provided by the hospital.

If a family without health insurance is injured by a drunk driver they can submit and likely recover the value of the services provided by the hospital. In essence the party without insurance is likely to recover far more than the responsible person with health insurance. “Paid and incurred” has the effect of penalizing injured Texans who have health insurance. “Paid and incurred” also has the effect of awarding negligent and drunk drivers who injure insured drivers.

Texan’s injured by medical errors are very often denied access to the Courts. Texas voters have allowed the Texas Legislature to cap non-economic recoveries in medical malpractice cases at a maximum of $250,000.00. Therefore, when a non-employed, retired or young Texan is killed by the negligence of a medical provider the most that can be recovered is $250,000.00 plus the cost of any medical treatment. The recovered cost of the medical treatment will then have to be turned over to whoever paid the bills such as Medicare or a private insurance company. It is often not economically feasible to pursue a medical malpractice case when the legal costs can approach and sometimes exceed $100,000.00 leaving only $150,000.00, or less, to pay attorney fees and provide for the injured person’s recovery.

The $250,000.00 cap on non-economic damages makes it economically advantageous for a medical provider to have a severely injured person die quickly from the medical error versus survive and have a lifetime of medical treatment. We are not suggesting and do not believe that any medical provider would let a patient die to avoid a large malpractice award, it is the imposition of the very low cap that makes possible the absurd results in potential recoveries.

Moreover, these caps are an arbitrary number designed to “prevent frivolous cases” from being pursued. However, frivolous cases are not deterred; rather truly injured people must suffer. A beautiful, young girl, scarred for life by a physician’s negligence, can only recover $250,000.00 notwithstanding in many cases there are scars and injuries that cannot be corrected, and will remain for life.

The Georgia Supreme Court has recently ruled that their cap of $350,000.00 for doctors and $1.05 million for hospitals is unconstitutional because it takes away the citizens right to trial by jury. Illinois also recently ruled that its cap of $500,000.00 against doctors and 1,000,000.00 against hospitals is unconstitutional. Other states have similarly reviewed these caps and determined that they violate the very core of our democracy. Nonetheless, Texas has lowered the caps in recent years, further punishing its citizens and protecting negligent healthcare providers.

San Antonio drivers need to be vigilant when inspecting their cars for defects that can cause serious accidents. Any easy inspection is to visually inspect tires for cracking, separation and anything else out of the ordinary. If anything is suspected take the car to a car dealer or tire seller for an inspection. Do not drive the car if it appears to be a serious problem.

Another tire manufacturer (NOKIAN) has made a recall of tires sized 245/70R17 manufactured from November 12, 2009 to December 12, 2009. The safety recall began on March 8, 2010. Additional information about this recall can be found at the National Highway Safety Administration (NHTSA) using campaign id: 10T010000.

The defective tires have a tendency to separate causing tread chunks to fly off of the tires. This tread chunk separation can cause serious automobile accidents causing death or permanent injury.