San Antonio Injury Lawyer Blog

Driver fatigue is one of the most common problems on American roadways today. Trucking accidents are frequently the result of a driver exceeding the reasonable and regulated hours of service, causing the driver to become overly fatigued and not fully attentive to the safety of the public roadways. In the 1990’s studies were conducted and the trucking industry recognized that driver fatigue presents a serious and extreme danger to the public; yet, many trucking companies do not follow federal safety regulations regarding driver hours of service in the operation of their tractor-trailers. All too often when a driver becomes fatigued and sleepy they are pressed to continue on to make their delivery schedule before seeking rest. However, the Federal Motor Carrier Safety Regulations and the commercial driver manual for every state recognize that when a driver is fatigue the only safe action is to stop driving and obtain the necessary rest before continuing to operate an 18 wheeler.

Despite the public safety dangers presented by fatigued drivers, many professional truck drivers falsify logs in order to make it appear as though they are not driving in excess of authorized hours of service. Many trucking companies recognize this problem and turn a blind eye, and impliedly permit drivers to exceed safety limits while recording fewer hours in their official documentation. Not only is falsification of log books a criminal offense, allowing fatigued drivers on the public roadways causes catastrophic accidents that leave families torn apart.

Because a thorough and in-depth investigation is required to trace driver activity and conduct that may not appear to violate the hour of service rules, an experienced trucking lawyer must be consulted. There are methods to trace gasoline purchase receipts, hotel receipts, credit card purchases and forms of documentation that can be utilized to show log book inaccuracies and falsifications. Technology exists that allows trucking companies to install digital recording video cameras in the cabs of the tractor-trailer rigs documenting the behavior of a driver. Knowing that documentary video evidence can exit if rules violations are attempted can have a detouring effective on unsafe driving behavior such as driving while fatigued. Unfortunately only a minority of the trucking companies operating on the public roadways utilize this safety technology.

Trucking collisions can be the most catastrophic of all motor vehicle accidents. A fully loaded 18-wheel tractor-trailer weighing upwards of 80,000 pounds becomes a force of destruction when not operated in a safe and reasonable manner. A professional truck driver is tested not only on the rules of the road that passenger car drivers know in order to obtain a driver’s license, but must also study and know the commercial driver’s manual for their state as well as be intimately familiar with the Federal Motor Carrier Safety Regulations pertaining to safe and reasonable operation of a tractor-trailer. Additionally, trucking companies and those that operate in tractor-trailer transportation are required to know and follow all federal regulations pertaining to their industry. Failing to properly oversee and train drivers, failing to properly monitor the hours of service in which a driver operates, and/or failing to provide proper maintenance of vehicles are common problems within the trucking industry and can lead to devastating injuries and death.

When a trucking collision occurs it is imperative to initiate an immediate investigation. Hiring a lawyer experienced in trucking litigation is paramount. An experienced law firm will have accident re-construction and trucking industry experts on call for immediate response to the scene of a serious wreck. Evidence must be gathered immediately, scene investigation and photographs are of the highest importance, and identification of any and all persons or companies involved are required before even beginning case evaluation. If time has passed following a tractor-trailer wreck, evidence may still be obtainable and developing a litigation discovery plan to obtain all potential documents arising from and leading up to the wreck must be properly sought out. An experienced and aggressive prosecution is the only method to obtain justice for the victims of negligent trucking companies and their drivers.

Pool season has begun in San Antonio. The pool season should be a time of care-free fun for children on summer break. However, there will be numerous pool tragedies involving drowning in Texas during this summer. The causes of the drowning will vary from, no fencing, no supervision, slippery surfaces, and incorrect pool design.

Negligent pool design resulted in the death of a six year old in Connecticut. The company's president that installed the pool was prosecuted in the death. The pool design did not incorporate a safety device to prevent entrapment. Entrapment is when the powerful suction from the pool drain lines trap a swimmer underwater. Federal law requires that all commercial pools have a safety device to prevent entrapment. The federal statute does not apply to residential pools. There have been numerous deaths caused by entrapment in both spas and pools. The suction can be so great that numerous adults working together cannot free someone caught against a pool drain.

In serious injury and death cases occurring in or around a pool or spa it is necessary to thoroughly investigate the cause and not necessarily attribute the injury to swimmer or diver error. Many diving accidents are often attributed to swimmer error while in reality it is a poor pool design or poor diving board placement that caused the accident. If a child drowns in a pool that is gated it is often thought the owner did all that they could to prevent the tragedy; however; was the gate maintained, was the lock maintained, also was the automatic closure device working properly.

Most if not all pool drowning tragedies can be prevented. It is the responsibility of the lawyer representing the injured party and his family to determine what could have been done to prevent the tragedy.

Doctors at the University Health System in San Antonio researched patients treated over the last 15 years for injuries caused by dog attacks and dog bites. Their conclusion was that the vast majority of serious dog attacks treated in San Antonio Hospitals were caused by pit bulls.

The term pit bull is often misused and is really a generic term for various bull terrier breeds and mixes. All terriers are generally known as aggressive, territorial, and protective of their owners and therefore are often used as home security or family protection. Owners of terriers and, in particular, pit bulls often complain that the negative press is not warranted because it is the owners that cause the dog to be aggressive. However, the breed’s aggressive nature can cause serious attacks and in some cases death even without provocation.

In the study the following statistics were mentioned: Pit Bulls were responsible for 65% of all fatal attacks; someone is killed by a pit bull every 14 days in the U.S.; one body part is severed by a pit bull attack every 5.4 days; and, the risk of being killed by a pit bull is 2500 times higher than by a lab.

Many people have cast doubt on the Doctors' article about Dog Bites. Part of the article advocates that aggressive breeds should be regulated just like the regulations that control the possession of wild animals such as tigers. Also some complain that the study is flawed because many people describing the dog that attacked use the term pit bull generically so that many attacks are wrongfully attributed to pit bulls.

Our experience in representing people injured by dog bites is that many serious injuries are caused by even the smallest breeds because the owners allow young inexperienced children to handle the "family pet". However, the most serious dog bits and attacks have been caused by the larger breeds and primarily terriers, including pit bulls and Staffordshire terriers.

Regardless of the type of dog, when a homeowner fails to control his pet or lets the dog out of the house unleashed they must be held accountable for the injuries sustained by others.

Texas Dental Malpractice claims are considered Medical Malpractice Claims and are therefore controlled by the Malpractice Reforms that have previously taken place in Texas. It is therefore important to consider whether the firm that you are considering hiring to pursue a claim of Dental Malpractice has experience in the intricacies of Texas Medical Malpractice Law.

Because Dental Malpractice is a form of Medical Malpractice it is necessary that the strict requirements of the medical malpractice laws be met. In order to pursue a case of dental malpractice it is necessary to have expert reports which set out the errors committed, the harm caused and what the standard of care for a dental practitioners would be under the same or similar circumstances. These reports must be filed before the expiration of 120 days after any lawsuit is filed. Therefore it is important the the law firm handling these types of cases have access to qualified and credentialed experts in the many fields of dentistry, in order to quickly have records reviewed and reports prepared under the strict dictates of Texas law.

Having successfully handled many Medical Malpractice and Dental Malpractice cases in San Antonio and throughout Texas, our experience enables us to investigate and pursue a claim involving Dental Malpractice quickly and efficiently.

Robert L. Rush

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The law firm of Rush & Gransee, L.C. would like to congratulate Robert L. Rush for being named a "Texas Super Lawyer" as published in Texas Monthly magazine and Texas Super Lawyers magazine. The Texas Super Lawyers designation is awarded to only 5% of the lawyers in the state, and the selection process includes nominations by peers in the profession, a blue ribbon panel review of the candidate, as well as independent research on the candidate.

Mr. Rush has been recognized for the last 6 years in the Scene in SA publication recognizing the Best Lawyers in San Antonio (also a recognition conferred by his peers in the profession), and this year marks his initial recognition as a statewide, Texas Super Lawyer. Mr. Rush is also a life member of the Million Dollar Advocates Forum and the Multi-million Dollar Advocates Forum (2008-present), and was conferred membership in the American Board of Trial Advocates (2003-present). He has been Board Certified in Civil Trial Law by the National Board of Legal Specialty Certification since 1999.

For the past 20 years, Mr. Rush has maintained a statewide practice handling serious personal injury cases, including trucking accidents, medical malpractice cases, and cases involving defective products. Mr. Rush has also handled cases in the United States District Courts in California and Arizona, and is expanding his practice to help seriously injured victims and their families in other states as well.

Many Texans, whether living in San Antonio, or anywhere in the State, require the professional services of mental health therapists. The vast majority of mental health service providers are dedicated professionals that seek to help alleviate the mental health conditions of their patients. Unfortunately, the therapist-patient relationship can become too close, and too personal, creating circumstances where boundaries are violated.

Patients seeking help from licensed counselors, psychologists, psychiatrists, or even religious pastors and clergy, often find themselves in a vulnerable position having to open their lives to these professionals. Occasionally, counselors and therapists take advantage of patients in these vulnerable positions as engage in improper sexual relationships, or take advantage financially. Victims need to know that Texas has laws protecting patients that have been the victim of boundary violations.

Chapter 81 of the Texas Civil Practice and Remedies Code provides for legal causes of action against mental health service providers that have sexually exploited their patients. Although the title of the Chapter uses the word sexual exploitation, the law also provides for legal remedies if the mental health provider causes - directly or indirectly - physical, emotional, or mental injury caused by "therapeutic deception of the patient by the provider."

If you, or someone you love, has been victimized by an individual that was supposed to be helping with mental health issues, you have legal rights that can and should be enforced. In addition, the Texas Department of State Health Services actively accepts and prosecute complaints against individuals that have violated their trust with patients. If you need legal help, contact a law firm that has experience in this area of law, and has a track record of success in helping victims of mental health abuses.

A recall of more than 2 million baby cribs was initiated over fears of personal injury to infants. The majority of the cribs involved in the recall were "drop side" cribs - cribs that have a side rail that slides downward to allow a parent easier access to pick up or lay down a child. However, the sliding side rails can dislodge or detach, creating gaps large enough to allow a child to become entrapped and suffocate. There have been no deaths reported as of yet, however, at least one child was found unconscious and required hospitalization.

Defective products that have been linked to injuries and deaths need to be properly investigated and thoroughly examined in order to preserve a claim against a negligent manufacturer. For details on this current crib recall, vist the Consumer Products Safety Commission (CPSC) to determine whether you may have one of these recalled items.

The Food and Drug Administration ("FDA") has come under increasing criticism for its handling of drug and medical device approvals as well as its inability to make sure that products already being sold are safe. We have also been critical of the agency’s ability to protect the public.

In a May 19th article in the New England Journal of Medicine ("NEJM") the authors recognize the many shortcomings of the agency. However, the article points out that many new initiatives are making the FDA more transparent. This transparency, in theory, should make the FDA more responsive to dangerous drugs and other defective products. In an initial step, this past January the FDA released a web-site providing answers to fundamental questions about the FDA.

Without an honest, transparent assessment and evaluation of pharmaceuticals, medical devices and consumer products, the safety of the public is at risk. If the FDA does not effectively contribute to this process, more individuals will be injured, maimed, or killed as a result of products that otherwise should never have been approved for sale to the public.

San Antonio medical malpractice injury lawyers are taking more inquiries from individuals injured in surgical procedures performed with surgical robots. The surgical robots can make surgery less invasive. Surgeons can operate through small holes in the patient instead of through a large incision. The robot with up to four remote-controlled arms and a sophisticated camera allows the physician to perform a variety of surgical procedures without cutting open a patient’s abdomen.

However, the surgical robots have long learning curves and some surgeons have said that it takes at least 200 surgeries to become proficient and to reduce the risks of surgical complications. Others have suggested that it takes 250-700 cases to master the robot.

One area of concern for potential patients and an area to be investigated by Texas injury lawyers is whether the physician had sufficient training in the use of the surgical robot. Some physicians have been given as little as two days training which included operating on pig and human cadavers. Obviously, as a patient you should inquire as to your physician’s experience with the surgical robot. There are many advantages to using a surgical robot if it is controlled and operated by an experienced surgeon. However, because of the long learning curve, an invasive procedure with a surgical robot should only be done by a surgeon properly experienced in the procedure.

Many have expressed concern that the surgical robots are being installed at hospitals and surgery centers as part of a marketing strategy. One of the manufacturers of a surgical robot openly markets the device to surgical centers as a way for them to increase their revenues. The price of the machines can run from approximately 1 million dollars to over 2 million dollars. With the high upfront costs many surgeons will feel pressured to use the device to justify its cost – whether they are ready to do so or not.

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.

An Americano USA bus was involved in a serious accident 55 miles South of San Antonio, Texas on Highway 37. The accident killed at least two and injured many more passengers. Approximately 38 passengers were transported to area hospitals. The bus had just left San Antonio and was headed to Matamoros, Mexico for a Spring Break trip.

An initial investigation conducted by the Texas Department of Public Safety indicated that faulty equipment may have been the cause of the accident. Apparently the drive shaft fell off the vehicle as it was driving down Highway 37 in Atascosa County, Texas.

Americanos USA is a business entity that is related to Greyhound Bus, which is a division of FirstGroup America. Americanos buses have been involved in 10 crashes in the past 30 months. A National Transportation Safety Board (“NTSB”) spokesman has indicated that they are currently not intending to open an investigation in the crash. According to the NTSB the crash does not appear to turn up any new safety issues.

As we have written before in our blog, safety defects on buses are a real concern for the general public and the bus passengers. It is also clear that the Federal and State Agencies responsible for the safety of motor vehicles should not be relied upon to make sure that buses and other vehicles are properly maintained. A San Antonio personal injury lawyer should investigate this accident to determine how a bus that was recently inspected could be in such a horrible accident. Potentially, the bus company, the bus manufacturer and the maintenance company could all be held responsible for compensation to the victims of the crash.

In a recent story on San Antonio local news (WOAI), it was reported that records from the Texas Department of Transportation’s database indicate that since 2005 San Antonio law enforcement officers have cited cell phone use as a contributing factor in more than 17,519 accidents with 7,519 injuries and 167 deaths. Further, according to the report, San Antonio had the highest number of cell phone related crashes in Texas over the past five years.

Driver inattention due to cell phone use is not new; studies have reported the effects of cell phone use while driving as being the same, if not worse, as a driver having consumed alcohol or marijuana and driving. Injuries caused by drivers that are texting can be serious and severe. This level of driver, on busy roadways, places the entire driving public at risk. The highest risk areas are spread throughout San Antonio, according to the local news report - Loop 1604 at IH-10; Loop 1604 at Hwy. 281; Bandera Rd. at Loop 410; and even downtown streets are cited.

Determining fault in a auto accident may require an in-depth look into the cell phone records of the person believed to be at fault.

Auto accidents in San Antonio could increase because some 2010 Ford Mustangs have the incorrect rear tire size indicated per Federal Motor Vehicle Standards. Incorrect tire size markings could result in replacement tires being used that are incorrectly sized. Incorrect tire size could result in a loss of stability or other safety issues.

Owners of the new cars will be sent a new tire label to affix according to the directions. It is believed that all owners of the affected cars will be notified of the incorrect labeling.

Auto accidents can have many causes, and it is necessary to investigate all potential causes when auto accidents cause serious injuries or death.

In San Antonio drivers who hit bicyclists or pedestrians are seldom ticketed or arrested. The injured party is often severely injured or killed while the at-fault driver is left to explain that it was just an accident. Accidents do not normally happen without some active negligence. A two-ton motor-vehicle or a 20 ton semi-truck traveling at highway speeds is going to cause massive injuries to vulnerable road users if they do not pass with a sufficient safe distance between them.

The Texas Governor vetoed a bill that would have required motor-vehicles to give other vulnerable users of our roads and highways a sufficient clear safe passing buffer. With that veto the San Antonio City Council has been debating a City Ordinance that would require a safe passing clearance of at least three feet for cars and 6 feet for trucks. This safe passing distance would be applied to all vulnerable users such as: pedestrians, bicyclists, wheel chairs, and road workers.

If passed the ordinance is not expected to eliminate all accidents and injuries to bicyclists and other vulnerable users; however, it may reduce the number of accidents making our streets friendlier for cyclists. We are in favor of a safe passing ordinance if it is coupled with a marketing push to inform San Antonio drivers of the ordinance. The effectiveness of the ordinance would be enhanced if the other metropolitan areas and not just San Antonio passed similar ordinances to protect cyclists throughout Texas.

Severe personal injury, including amputation of fingers, is the reason behind a recall of Graco strollers. About 1.5 million strollers, many of which have been sold in San Antonio and throughout Texas, are being recalled due to faulty latches that fail to lock the stroller in place when opened. This can result in the stroller collapsing, causing broken bones and severe lacerations requiring stitches. According to the Consumer Products Safety Commission (CPSC) Graco has received over 500 complaints of injury from users of the Duo Tandem Stroller and the Metrolite Stroller. At least one injury resulted in the child requiring 46 stitches to close the wound. The strollers were manufactured between 1994 and 2002, and were sold nationwide at various discount stores, department stores and children’s stores for prices ranging between $80-$200. By checking the recall notice at the CPSC website, purchasers of Graco products can review the involved model numbers/serial numbers.

Defective products, especially products designed for children, can cause serious, long-term injuries and victims should contact experienced lawyers to investigate. In addition to government recalls, there are databases that should be maintained by manufacturers, and all necessary information should be sought in order to best protect future product users, as well as compensate those that have already been harmed.

A wrongful-death lawsuit has been filed by the parents of the couple that were fatally injured while cycling on October 1, 2009 north of San Antonio. The couple was riding a tandem bicycle when they were struck by a Ford F-150 truck. The driver of the truck briefly left the roadway and then overcorrected causing him to lose control.

In a wrongful death lawsuit the injury lawyer will likely try to recover: medical and funeral expenses; compensation for loss of companionship, mental anguish, and the decedent's pre-death pain, suffering and mental anguish. The couple left a young child and any recovery would likely be held in trust for the benefit of the child.

The Sheriff's Department and the District Attorney's office are investigating this vehicle accident to determine whether charges for manslaughter or criminally negligent homicide should be brought against the truck driver. The investigating authorities are probably subpoenaing the phone records of the driver to determine whether he was on the phone or texting while driving.

The success of the personal injury claim is not dependant upon a criminal case being filed. Each court system, criminal and civil, has independent burdens of proof and different methods of determining justice – one to determine whether the driver will lose his freedom, and the civil court system will determine whether the driver or his employer should compensate the young child for the loss of both parents.

A San Antonio driver was charged with intoxication assault on November 12, 2009, following an automobile accident that injured five people, including 3 children. The crash occurred on SE Military Drive, in San Antonio, when the driver of a van attempted to turn onto Curtis St. and failed to yield the right of way to an oncoming vehicle. It was reported at the scene that the driver of the van had a cooler and more than a dozen beer cans in the van. The three children injured were the children of the van operator.

Driving while intoxicated or under the influence of alcohol or drugs is a major factor in injury accidents in San Antonio and throughout Texas. Intoxication impairs a driver's ability to fully grasp and react to driving situations and can be the cause of serious, if not fatal, results. Under Texas law, the children of the driver, if he is proven to be at fault, are entitled to recover under the driver's insurance policy for injuries sustained and financial losses incurred. Likewise, the injured persons in the other vehicle are entitled to make a claim for their losses. However, depending on the amount of liability insurance carried by the alleged drunk driver, there may be limited funds available to be used for compensation for all injured individuals. It is important to make timely claims to be considered by the insurance company, before the potential funds are exhausted paying other claimants. This is also why it is important to carry uninsured/underinsured coverage on your own vehicle insurance - so in the event another driver causes a wreck and either has no insurance, or too little insurance, your coverage will provide additional protection.

In the event there is no available insurance, the only potential for recovery may be to investigate and determine whether the driver of the van purchased the cooler and beer from a local store, at a time when he was already obviously intoxicated - in other words, at a time when a store clerk should have realized that selling alcohol to an already intoxicated person would create danger.

San Antonio police believe that a 19 year old driver was intoxicated when she crashed while driving on the Wurzbach Parkway. A 19 year old passenger in the vehicle was ejected from the front passenger seat and was taken to the University Hospital where she is in stable condition.

The claim for injuries against the driver will be probably relatively easy as far as liability. However, it will be necessary to pursue all other avenues for relief as the injured minor is likely to have substantial medical bills and possible long term effects from her injuries.

One potential claim often pursued with success is a Dram Shop Case. In a Dram Shop Case a lawsuit is brought against the liquor establishment that oversold the drunk driver. In this case someone provided alcohol to a minor; therefore, it is very important that this be investigated and pursued. Bars, restaurants, ice houses, and liquor stores are all required to require purchaser to provide proof of age; furthermore, they are prohibited from serving someone if they are obviously intoxicated.

Providers of alcohol do have some defenses that can be asserted in a dram shop case and if their defense is successful the case against them is dismissed. This case because of the ages of the driver and her passenger warrants a thorough investigation as to the viability of a dram shop case against the provider of the alcohol.

San Antonio homeowners may have placed their young children at risk of serious injury or death if they have purchased Roman shades or roller blinds at IKEA or Bed Bath & Beyond. The above blinds have been recalled by the Consumer Product Safety Commission (CPSC) because they pose a serious strangulation risk to small children. Repair kits are available to make the blinds safe.

If you have installed blinds purchased at the above retailers then go to the retailer to inquire about the recall or call a San Antonio personal injury lawyer for assistance in determining whether the blinds you have had installed are included in the recall.

Texas residents need to be vigilant when family members are undergoing surgery. Family members should watch, and question the surgeons if necessary, to make sure they understand what body part is being operated upon. ordered to install video cameras in all of its operating rooms after its fifth (5) wrong-site surgery in less than three years. The wrong-site surgeries ranged from operating on the wrong finger to operating on the wrong part of the heads of three patients.

If a surgical error caused significant injuries it is often beneficial to future patients to pursue a medical malpractice claim. Future patients at the Rhode Island hospital will be safer, now that video cameras have been installed; however, it did take many medical malpractice cases before these new safekeeping measures were implemented.

San Antonio cyclists need to be careful not just because of the risk of a negligent automobile driver; cyclist must be concerned about the occasional angry driver who feels that cyclists take-up to mush roadway.

A Los Angeles doctor was convicted November 2, 2009 of injuring two cyclists. In particular he was convicted of assault with a deadly weapon when he slammed on his brakes after passing two cyclists. Apparently he shouted at the cyclists to ride single file when he passed them and then slammed on his brakes. Both cyclists were seriously injured in the incident.

Bexar County, Texas had 159 traffic fatalities caused by drunk drivers in 2008. Drunk driving was the number one cause of traffic fatalities in San Antonio for the period of 2004 through 2008. Thirty-eight percent (38%) of all Texas auto fatalities involved a drunk driver in 2008. The majority of drunken driving accidents involve a driver between the ages of 21-24 and a blood alcohol level of 0.15, nearly double the legal limit.

The only other factor that substantially contributes to fatal automobile accidents is excessive speed. Other causes of motor vehicle accidents do not even come close to Driving While Intoxicated. Large trucks such as 18 wheelers were only involved in 13 fatal motor vehicle accidents in 2008.

Recently there have been a large number of pedestrian fatalities in San Antonio. Bexar County has averaged 2 to 3 pedestrian fatalities per month since 2004. Also, recently there have been a number of fatalities involving bicyclists. This appears to be a spike and is probably related to more people riding bikes. Bexar County has historically averaged three cyclist fatalities per year. Bexar County has exceeded its yearly average in the period from September through August.

Continue reading "Bexar County Auto Accident Fatalities " »

A 25 year old camp counselor from Australia was arrested at the San Antonio Airport. It appears as though the counselor was on his way home. It was alleged that the Australian sexually abused two boys at a camp in Hunt Texas, while acting as a summer counselor. The camp employed the counselor through an exchange program. The camp asserted that the man had a work visa and had undergone a criminal background check.

When employing someone from a foreign country it is important to consider what a criminal background check is likely to uncover. If the background check only looks for someone's history in the United States then the background check is worthless and should not provide any protection to the camp in a civil lawsuit. Also, some countries do not keep extensive records and/or have methods by which defendant's can seal their records.

It would be important for an attorney representing a victim of a sexual assault, wherein the employee of the accused asserts that they did a background check, to determine what type of background check was conducted to ensure that the effort was reasonable under the circumstances. It would be particularly important to see if the foreign records were researched and what record keeping is done in the foreign country. One must also consider what other protections for the young campers were maintained and implemented by the camp.

It is tragic when the people who are entrusted to watch over children become the abusers. It is important that a full investigation be conducted to prevent these attacks.

A San Antonio automobile driver was indicted for failure to stop and render aid in a May 5, 2009 accident wherein it was alleged that the automobile driver struck a bicyclist on S. St. Mary's Street. The driver of the car did not stop and the bicyclist died of his injuries.

There have been a multitude of automobile - bicycle accidents causing injury in the past year. In Texas when a driver of an automobile is in accident that causes injury or death, the driver of the automobile is required to stop as close to the scene of the accident as possible and must immediately return to the scene and remain at the scene of the accident until authorities arrive. Failure to stop and render aid is a third degree felony and punishable by up to 5 years in prison. In a strange twist, Texas law is somewhat contradictory when an intoxicated driver causes injury - whether to another automobile driver or a bicyclist or pedestrian. If an intoxicated driver is arrested and charged with Intoxication Assault or Intoxication Manslaughter (in the case of death) the person causing the wreck and injuries may face 2-10 years or 2-20 years in prison. However, if an intoxicated person causes injury, and is able to leave the scene before authorities can obtain evidence of intoxication, even if later connected to the accident the person may only face charges for leaving the scene and failing to render aid. A thorough investigation after an accident should involve a determination of whether the person causing the injuries may have been consuming alcohol at a restaurant or bar before the collision.

Even if a bicyclist is properly obeying traffic laws, and is lawfully on the roadway, the negligence of an inattentive driver can cause serious (if not fatal) injuries. In addition to obeying traffic laws while riding a bicycle, riders should wear bright, reflective clothing and always wear safety equipment such as helmets, wrist and elbow protection. In the event of any type of automobile/bicycle collision, police should be called and information exchanged.

An elderly nursing home resident was severely beaten over the weekend in San Antonio. The nursing home resident and her attacker did not know each other and it appeared to be a random act of violence. Both the victim and the attacker were covered in blood after the assault. The attacker is in the Bexar County Jail charged with injury to the elderly.

It is unclear from the reports, as the investigation has not been completed, as to how the attacker gained access to the San Antonio nursing home facility. The senior care facility allegedly required a key code to gain entry.

Nursing homes have a duty to provide a safe place for their residents. Not all criminal acts can be prevented; however, it is obvious from the weekend attack at the senior care facility that somehow their security system was breached. Someone should investigate how this obviously disturbed person gained entry to the facility. It is possible that security cameras recorded the attacker entering into the facility. Security cameras very often only record for a very short period, such as 72 hours, before recording over the previous material. Therefore, either the police or an attorney representing the victim will need to act quickly to get a copy of the tape or hard drive prior to being erased. Nursing home abuse can take many forms; although facilities should honor and protect our senior citizens, when that trust is violated, accountability should be sought.

Over the weekend a couple on a tandem bike were killed in Bexar County.
The cyclists killed were known to be very careful riders who always wore their helmets. Apparently from the published reports it appears as though the driver of the motor vehicle left the roadway as he approached the cyclists from behind and then overcorrected causing the collision. It did not appear as though alcohol played a role in the accident.

This year at least two other deaths have been caused by crashes when cyclist sand motor vehicles collide. The number of serious injuries caused by motor vehicles colliding with bicycles is staggering. It is unfortunate that some members of the public just consider these collisions to be accidents - implying that they are unavoidable. Bexar County and San Antonio should take steps to make our streets safer for bicycles as they contribute to making San Antonio a healthier place to live.

The tragic death of bicyclists in Bexar County highlight the need for an awareness program whereby motor vehicle drivers are taught to give sufficient room to people on bicycles. Governor Rick Perry vetoed a bill earlier this year that would have required motorists to give cyclists at least 3 feet of clearance when passing. It is unknown whether any of the recent cyclist deaths would have been avoided if the law would have passed; however, it is certain that future deaths may be avoided if cyclists are given sufficient safe room when legally using Texas Roadways.

When school started this year, new safety laws went into effect as well. The Texas legislature enacted new laws regarding the use of cell phones in school zones, aimed at protecting children and preventing automobile accidents. Starting September 1, 2009, it is now illegal to operate your motor vehicle while using your cell phone if you are traveling in a school zone - in San Antonio, or anywhere in Texas - unless you are using a hands-free device (Bluetooth, speakerphone or earpiece, for instance). Specifically included in the ban, is texting while driving through school zones. While, from a safety standpoint, one should never text while driving, this law only affects texting in school zones. Violators of this new safety law can face fines of up to $200.

There are additional restrictions for newly licensed drivers. Operators with learning permits are prohibited from using cell phones for the first 6 months of driving, while drivers under the age of 17 with restricted licenses are forbidden to use mobile, cellular devices while driving.

Every year there are vehicle collisions causing injuries to school children and/or motorists properly operating their vehicles in school zones. Typically, even though cell phone use was not illegal, an investigation into the at fault driver's cell usage was involved. Now, however, the mandate of law from the Texas legislature places a greater emphasis on reasonable driving practices when the end result could be a serious or fatal injury to a child.

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.

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.

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.

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.

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.

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.

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.

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.

Recent reports of attacks by vicious dogs highlight a misconception of many pet owners that if their pet has no history of biting they will not be responsible if it ever does occur. This is often referred to as the "one free bite rule". The "one free bite rule" is short for the legal theory that you as a dog owner will not be responsible for actions of your pet if you had no notice of the pet’s vicious nature.

The "one free bite rule" can only provide some assistance to the pet owner, and is not a bar to bringing a claim if a person has been attacked; there are many exceptions and an experienced lawyer can often find an exception. One of the exceptions is that a pet owner is always required to use reasonable care in handling his dog. As an example, it may not be reasonable to let your dog play with very young children if there are no young children in your household and the dog is not used to interacting with young children. It also may be unreasonable to let a young household guest play rough with your dog. In addition a pet owner is going to be held to a standard that requires them to take action to terminate any aggression by your dog.

Some Courts have considered a few dog breeds as inherently aggressive, putting the owner on notice of its natural tendency to be violent. Many dog owners dispute that their favorite breed is genetically bred to be vicious. However, a jury is more likely to award damages when the attack is committed by a pit bull in comparison to a small lap dog, and insurance companies are less prone to litigate and more likely to resolve a claim when an attack is committed by a breed with a reputation for aggression.

Dogs can be wonderful pets; however, not every dog is fit to be around children or house guests. Any dog attack needs to be treated seriously, and bites can become infected and leave permanent scarring.

Product Liability lawsuits often assist federal regulators in identifying dangerous products and making them safer for consumers to use or own. Federal Regulators are often caught off guard when emerging hazards develop. One of the goals of a product liability suit is to improve the safety of a product for the public at large. Most products can maintain their functionality while being made safer for very little additional cost.
When a new product is designed for sale it often enters the market place without regulatory guidelines and without any history or competent studies to judge its safety. It can often take years before there are a sufficient number of injuries or deaths to alert the attention of a federal agency to investigate a potentially dangerous product. It is often the case that personal injury lawyers have been at the forefront of informing the public and federal regulators about the hazards of many products.

The Consumer Product Safety Commission (CPSC) did not start to investigate three-wheeled all terrain vehicles (ATV) until lawsuits were filed complaining of the multitudes of deaths and tens of thousands of injuries caused by faulty engineering and design principles that were ignored or overlooked by the ATV manufacturers. Even so, after being informed of the dangers of these products via lawsuits filed in various states, it still took three years for the CPSC to ban the sale of the three-wheel ATV, which was a product that had been proven to be clearly dangerous. Two years after the ban of the three-wheel ATV, a trade group published voluntary safety standards for a four-wheel ATV; however, cheaper versions of the ATV were being imported from China, without adhering even to the voluntary standards proposed in the United States, and often lacked the most basic safety features. Approximately 8 years later the CPSC finally enacted formal safety standards on the four-wheel ATV.

Today there are numerous models and brands of off road vehicles called Utility Terrain Vehicles (UTV) that are currently unregulated. These vehicles have four wheels, a steering wheel and look like powerful golf carts. However, the high center of gravity on these newer UTV models, combined with the powerful engines and large tires often, often cause disastrous rollovers. Numerous people have been killed and thousands injured. Again it wasn't until attorneys pressed their claims against the manufacturers that the CPSC started an investigation into the safety of these new products.

This weekend not only marks the end of daylight savings time, but should also be a reminder to everyone that this weekend is a good time to replace your smoke detector batteries. The Consumer Product Safety Commission (CPSC) has issued its semi-annual reminder that safety should come first in the household and smoke alarm batteries must remain fresh in order to be most effective. Annually, it is estimated that there are over 2500 deaths and over 13,000 injuries reported in home fires each year.

BE SAFE - REPLACE YOUR SMOKE DETECTOR BATTERIES!

Every San Antonian and every Texan should be concerned about a case of huge importance currently being argued at the U.S. Supreme Court. Wyeth v. Levine ("Wyeth"), is a preemption case with major implications - not just for drug company's - but for every manufacturer of products that can seriously injure or kill our citizens.

In the Wyeth case a musician was given a shot of a Wyeth drug in her arm to treat symptoms associated with her migraine headaches. The shot caused her arm to turn gangrene and ultimately the arm was amputated. The musician alleged, among other things, that if Wyeth's label had warned of the risk of contracting gangrene she would not have taken the shot. Wyeth is arguing at the Supreme Court that the US Food and Drug Administration (FDA) had approved the label therefore they cannot be sued even if the label was deficient and did not contain the information.

In a startling revelation, documents recently released in a congressional investigation show that career officials at the FDA have argued against the issue of the FDA blocking consumer lawsuits against drug makers. These internal memos contradict the FDA’s position in the Wyeth case. In the Wyeth case the FDA has taken the position promoted by the Bush administration that the FDA label standards should trump state laws and prevent injury lawsuits. However some FDA officials have said that it’s wrong to assume that FDA-approved drug labels are completely reliable, or that they are based on full disclosure of safety risks by drug makers.

This case is vitally important - if Wyeth wins this decision will be used by drug and medical device manufacturers to attempt to prevent Texas citizens from seeking compensation for losses and injuries when they are harmed by defective drugs or products that are regulated by the federal government. Hopefully, the revelation of the internal memos at the FDA will cause many people to question whether it is a sound policy to have federal government agencies giving immunity to drug and product manufacturers that cause grave injury just because they have been given a stamp of approval by an overworked and understaffed federal bureaucracy.

If the decision favors Wyeth, perhaps the US Congress will consider reversing the preemption doctrine pursued by the Bush Administration.

The Wall Street Journal reported these developments and much of this content was obtained from their article.

San Antonio has always suffered from a large number of train accidents. Recent accidents in San Antonio have resulted in death and injury as well as the evacuation of large areas because of the hazardous cargo.
A recent train crash in California highlights how dangerous trains can be if not operated correctly. The investigation in the deadly train collision that killed 25 people in California and injured many more continues to get more complicated, with new facts coming to contradict findings by the National Transportation Safety Board (NTSB).

In the California train accident, it’s hard to establish who was responsible for the accident or what can be done to prevent future train accidents. Some contend it was a human error, others believe the lack of an adequate technology to stop human errors from causing such accidents is to blame and some even point to the long hours in isolation suffered by the engineers.

The technology, which could stop trains from missing a red light, is relatively expensive, and railroad companies have not wanted to adopt its use. Safety regulators have also temporarily banned the use of cell phones by train operators during shift hours. And some train operators require two engineers.

Three witnesses said they saw the commuter train had a green light just before the collision with the freight train. This contradicts what the National Transportation Safety Board concluded, whose investigation revealed that the commuter train missed a red light.

The investigation by the National Transportation Board initially revealed that the commuter train engineer was sending text messages from his cell phone immediately before the impact. According to investigators, he exchanged text messages with teenage railroad enthusiasts; this is believed to have distracted the engineer.

Investigators in the train accident believe the accident was preventable, and all the drastic measures being taken now are just another sign that it takes a tragedy for the necessary safety measures to be taken.

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.

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.