Wrongful Death

Published on: December 10, 2015

Limits of Vicarious Liability in Texas

In Painter v. Sandridge Energy, Inc., a Texas appellate court considered the death of two oil field employees and injuries to a third oil field employee. The workers were doing drilling on behalf of their employer, Amerimex. Amerimex was hired by Sandridge, which had a lease to drill wells at a ranch. The contract described Amerimex as an independent contractor but specified that the crew worked under Sandridge’s control, supervision, and direction. Sandridge was obligated to pay bonuses to the Amerimex employees so that they wouldn’t be hired away by other drillers. Sandridge had an on-site supervisor who stayed in a trailer.

The accident happened after the workers’ shift while they were driving to a bunkhouse 30-40 miles away owned by Amerimex. There was no requirement that the workers live in the bunkhouse or ride with their crew leader to and from the drilling site, but since the crew leader was the only one with a car, they did drive to and from the bunkhouse with him every day. The crew worked in shifts of seven days on and seven days off. While driving, the crew leader ran into the back of another car. Two of the employees were killed, and another was injured. Later, the crew leader testified that nobody at Sandridge gave him any driving instructions.

The decedents’ relatives and the surviving employee sued the other driver in the crash, Amerimex, and Sandridge, the owner of the oil and gas lease. Their petition alleged that Sandridge was responsible for the crew leader’s actions because it gave a financial incentive to the crew leader to transport them in his car. They alternatively alleged the crew leader was the agent of Sandridge due to a transportation bonus, or that he was a “borrowed servant” of Sandridge.

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Published on: December 10, 2015

Suing a Surgeon for Medical Malpractice and Wrongful Death in Texas

By Carabin Shaw

In Pisharodi v. Saldana, a Texas appellate court considered a medical malpractice case arising out of a 54-year-old woman’s death. The lawsuit was brought by the woman’s surviving children against the woman’s neurosurgeon. The neurosurgeon had treated the pain suffered by the woman in her lower back. He prescribed physical therapy, and when that didn’t work, he recommended an epidural pain block and injection in the L4-L5 part of her spine instead of surgery. He performed the procedure on her using morphine, depo medrol, a steroid, and a local anesthetic.

After the procedure, she returned to the neurosurgeon’s office still in pain. Accordingly, he performed a posterior lumbar decompression with a discectomy, fusion, and instrumentation. He discharged her five days after this procedure, sending her to rehabilitation.

Several months later, she came back, complaining once again about lower back pain. He recommended another epidural steroid injection. The same combination of medications was used as the first time. After the procedure, he left her at the clinic and went to assist with a surgery. Later, he got a phone call from his office telling him that she was nauseated and diaphoretic. Emergency services were called. She tried to talk and collapsed without a pulse. The clinic tried cardiopulmonary resuscitation.

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Published on: August 9, 2015

Proximate Cause in a Texas Wrongful Death Case

By Carabin Shaw

In Sinclair v. Estate of Ramirez, the defendant appealed in connection with a verdict entered in favor of a decedent’s estate and his wife in a wrongful death case. The case arose when the decedent finished his welding job and drank 14-18 beers with his coworkers. He and two coworkers went to a nude cabaret, which was 50 miles away, and operated by the defendant. They drank through the evening inside the club. The decedent bought four private dances in a VIP room. At some point, the decedent got aggressive with a dancer. The dancer believed that he intended to rape her and escaped.

The dancer told the defendant. The decedent left the VIP room and asked for a refund. A witness testified that he wanted a refund because he thought he would get more because he paid for dances. The defendant refused to give the refund. The decedent threw a metal box at him. The defendant got a whip from the other side of the bar.

The decedent pushed through some doors, breaking them. To stop him from getting to an area where the defendant stored cash, the defendant ran after him. The decedent charged the defendant, who hit him with the whip. The club DJ pulled the decedent back, and the decedent fell to the floor, stunned. A club patron asked if the defendant wanted the decedent removed. The defendant said yes but later claimed he didn’t tell him to drag the decedent from the club.

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Published on: August 9, 2015

Expert Reports in Wrongful Death Claims Against Healthcare Providers in Texas

By Carabin Shaw

In Nexion Health at Garland, Inc. v. Townsend, a 69-year-old Texas woman was admitted to a rehabilitation center after a back surgery. The center assessed her as a high fall risk with good potential for rehabilitation, and two people were required to assist with transfers. She was found to have deep vein thrombosis in her lower extremities. Bed rest and anticoagulants were ordered. Testing showed some issues with her coagulation, but no further tests were ordered. The woman was not able to balance at one point and sat down on the floor. There were no signs of fracture, but later she was found to have a hematomal bump and suffered from labored breathing.

The woman had to be transferred to a medical center. She was diagnosed with anemia, weakness, tachycardia, and an altered mental status. She was suffering from a hematoma that was secondary to anticoagulation. The ICU admitted her, and she was placed on ventilation and received several blood transfusions, among other things.

She died there. Her estate filed a health care liability suit against the decedent’s treating physician and the rehabilitation center. The estate offered an expert report to support its claims. The rehabilitation center filed objections and moved to dismiss the claim. The objections were overruled and the motion denied.

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Published on: May 3, 2015

Negligent Supervision in Texas

By Carabin Shaw

In ExxonMOBIL Corporation v. Pagayon, the Texas Court of Appeals considered a case in which a man died after a fight between himself, his son, and an employee of the defendant at the defendant’s service station and convenience store. The defendant appealed a judgment in favor of the man’s wife, children, and estate on their wrongful death claims.

Pagayon and Cabulang were employees at a convenience station. They and Pagayon’s father had known each other before the employment. The son had conflicts with Cabulang at work and told both his manager and his father about them. The father phoned Cabulang, and they spoke heatedly about the conflict.

While working together, Cabulang cursed at Pagayon and in Pagayon’s view threatened him and his father. A coworker told the store manager, but the manager simply told the son to stay away from Cabulang. The father came to the store to pick up his son, and Cabulang started a fight with him, hitting him multiple times in the head and back. The father was taken to the hospital emergency room. He was moved to the ICU, and when they tried to wean him from the respirator, he was transferred to a long-term intensive care facility. The father died of respiratory failure, renal failure, and cardiac arrhythmia. The organ failure was caused by sepsis, which is an infection of the blood.

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Published on: January 26, 2015

WEDGWOOD FIRE UPDATE

By Carabin Shaw

WEDGWOOD FIRE UPDATE

It is now understood that the fire loss that occurred at Wedgwood Apartments on December 28, 2014, will go down in history as one of 20 worst high-rise fire tragedies in U.S. History.

We now also understand that the extent of the injuries and death at Wedgwood could have been avoided, if specific and somewhat relatively basic precautions would have been made, by management or the owners of Wedgwood.

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Published on: December 16, 2014

Damages in Texas Wrongful Death Case

By Carabin Shaw

In Texas, the surviving spouse, children, or parents of a deceased person can file a wrongful death lawsuit against a person or entity whose wrongful act or negligence caused the death. One of them can file the claim as an individual, or they can file together as a group. If none of them files the claim within three months of the death, a representative or executor of the deceased’s estate can file the claim unless the family member asks that it not be filed. Texas doesn’t permit surviving siblings to file a wrongful death lawsuit for a sibling’s loss. Unlike criminal charges brought in connection with the same death, liability in a wrongful death suit is expressed solely in monetary damages.

The family members or estate can recover damages, including lost earning capacity, lost inheritance, lost love and companionship, lost earning capacity, lost services and counsel that would have been given by the deceased person, mental anguish, and pain and suffering. Punitive or exemplary damages may also be recovered in order to punish a wrongdoer. The damages will be divided among the surviving family members in proportion to their degree of injury as a result of the death. For example, a surviving spouse who was close to the decedent would likely be entitled to a greater share than a child who was estranged from the decedent for years before the death.

In a recent Texas appellate case, Badall v. Durgapersad, a man shot his victim in a tire shop he owned. The victim died in the hospital the next day, and the man was charged with murder and convicted. He appealed, but the appellate court affirmed his conviction. The victim’s family sued the man for wrongful death, claiming various damages including medical bills, funeral expenses, lost earning capacity, pain and suffering, mental anguish, loss of consortium, lost earning capacity, punitive damages, and lost inheritance and interest. They moved for summary judgment. Continue reading →

Published on: December 11, 2014

Requirement of Expert Report in Texas Medical Negligence Cases

By Carabin Shaw

In Methodist Health Centers v. Crawford, a Texas woman’s son and daughter sued a health center for medical malpractice in connection with its care of their mother. The mother was admitted to a nursing facility with a history of diabetes and dementia. She had a pressure ulcer on her back and needed a feeding tube. A month later, she was transferred to the defendant’s hospital for treatment of her urinary tract infection and vomiting. She also had another pressure sore on her hip. A few days later, the pressure ulcers had gotten worse. She was discharged back to the nursing facility. A few months later she again had vomiting, a fever, and shortness of breath and was transferred back to the hospital.

Her condition deteriorated in spite of antibiotics and other treatment. She died of pneumonia, infection, and respiratory failure a few days later. Her son and daughter sued the medical and nursing facilities, both individually and as the woman’s heirs. They attached a doctor’s expert report and CV to the petition, as required by Texas law. They settled with the nursing facility, but the hospital moved to dismiss for failure to serve an adequate expert report. The trial court denied the motion to dismiss.

Under Texas law, a plaintiff must serve a defendant with an expert report, along with a CV of the experts listed in the report. An expert is only qualified to offer an opinion on whether the health care provider deviated from the standard of care if the person practices health care in the same field as the defendant, knows the accepted standard of care for the provider, and is qualified due to training or experience to offer an expert opinion about the standard of care. If a doctor doesn’t state in the expert report that he or she has knowledge of the standard of care, the court will find he or she is not qualified to offer an opinion. Continue reading →

Published on: December 11, 2014

Assumption of the Risk in Texas

By Carabin Shaw

In Texas, the defense of assumption of the risk is part of the general defense of comparative negligence. Those who participate in dangerous activities for sport or fun should be aware of this potential defense should something go wrong. Assumption of the risk arises when a plaintiff knowingly and voluntarily assumes a risk of harm from a defendant’s actions. The defendant will need to show the plaintiff had actual knowledge of the risk, the plaintiff accepted the risk, and the nature of the conduct was inherently dangerous. This doctrine can arise in connection with activities such as scuba diving, rodeos, and high-contact sports.

In DeWolf v. Kohler, a woman brought a Texas wrongful death lawsuit against multiple defendants associated with a scuba diving accident. The decedent was scuba diving with a group at a shipwreck off the coast of Massachusetts. On the second day of the trip, the man was seen going into the water but never resurfaced. Only after hours of searching was the man’s body found on the ocean floor. The local medical examiner determined the cause of death was drowning, pending further study. After an autopsy, however, the cause of death was listed as myocarditis, a natural cause.

The man’s wife sued numerous defendants for wrongful death, including the dive boat, the individual who chartered it for the expedition, the network that had carried a television show with the individual who chartered the expedition. the company that trained the decedent to dive and gave him credentials, and the scuba equipment manufacturer. The boat didn’t answer the suit and was dismissed by the court. The network contested jurisdiction, and the court agreed. The dive training company filed a motion for summary judgment that was granted. The equipment manufacturer filed a motion for summary judgment that was initially denied but later reconsidered. The case proceeded to trial against the individual who had appeared on television and organized the expedition. Continue reading →

Published on: December 11, 2014

Wrongful Death on the Job in Texas

By Carabin Shaw

Most of the time, the only recourse for survivors of a family member who dies because of a job are workers’ compensation benefits. However, when an employer shows gross negligence and an employee dies, the rules are different. In Garay v. GR Birdwell, the decedent’s surviving spouse and a representative of the decedent’s minor child sued the decedent’s employer for wrongful death after the decedent died while operating a trench roller. The accident happened while the decedent was working on his employer’s behalf at a construction site.

The employer was completing construction of a concrete wall, and the decedent operated a trench compactor on the employer’s behalf. He had worked for the employer for five years without any accidents. Usually, workers used a remote control with the trench roller, but according to another employee, the decedent said the remote control wasn’t working, even though he was able to use it earlier in the day. Therefore, the decedent manually operated the roller. Another employee had manually operated it the same way many times before.

While operating the roller, the decedent stood at a pinch point between the roller and the wall. The roller pinned him there. His coworkers tried to get him out, but he already had suffered serious injuries and died there. Continue reading →