San Antonio Injury Lawyer Blog

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.

The New England Journal of Medicine (NEJM) reported that orthopedists often fail to disclose payments they receive from makers of hip and knee replacements when reporting on products made by the Companies from which they get payments. These payments to physicians and researchers have the potential to create conflicts of interests and may cause some physicians and researchers to under report problems with the orthopedic devices.

By under reporting adverse problems, the medical device may not be placed under sufficient scrutiny at the initial FDA approval process or in review of the product after the fact. This lack of scrutiny can cause the medical device to be over utilized, thereby injuring many more people than if the device had been properly reported without the interference of conflicts of interest created by medical device manufacturers and physicians whose interest lies in maintaining a secondary income stream from these companies. Patients can be harmed if physicians over use or over prescribe a device when payments are made directly to the doctor from the manufacturer.

The nondislosure of payments by physicians has the potential to hurt many Texans by creating financial incentives for doctors to promote possibly defective medical devices.

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.

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.