Texas Injury Lawyers Blog

Published on: December 14, 2016

Failure to Diagnose Cancer in Texas

In Knox v. Rana, a Texas appellate court considered the wrongful death claim of a woman’s children against the cancer center where she’d been treated. The woman had survived endometrial and breast cancers and was getting radiation treatment from a defendant doctor for a basal cell carcinoma lesion on her nose. The doctor ordered a PET scan, based on the woman’s prior history of cancer. The scan showed she had a mass that seemed like metastatic disease in her pelvis. However, the doctor never told her this or ordered her to obtain treatment.

Later, the defendants would provide evidence that the mother was informed about the worrisome nature of the mass in her pelvis and was asked to get a follow-up in three months. She didn’t undergo the follow-up and in 2012 was diagnosed with metastatic cancer. She passed away in 2013 at age 76, due to her metastatic cancer.

The woman’s children filed a lawsuit against the doctor and cancer center. The defendants filed a motion for summary judgment. The lower court granted the motion. The children appealed. The appellate court explained that the Texas Supreme Court had held that the Wrongful Death Act authorizes recovery for injuries that actually cause death, rather than those that cause less-than-even odds of avoiding death.

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Published on: November 9, 2016

Liability for Injuries from Tangible Property in Texas

By Carabin Shaw

In Constantino v. Dallas County Hospital District, the plaintiff appealed an order dismissing her personal injury case. The plaintiff had sued a county hospital for personal injuries after a television fixed to the wall in her aunt’s hospital room fell on her shoulder and arm and hurt her. She claimed the hospital had negligently furnished personal property in an unsafe condition. Ordinarily, a governmental hospital would be immune from suit, except under certain conditions in which it is waived.

In this case, the plaintiff claimed waiver under Texas Civil Practice & Remedies Code § 101.021(2) on the ground that her injuries had been caused by the use of tangible real or personal property. She argued in the alternative that the falling television was a premises defect, such that immunity was waived under § 101.022.

The trial court granted the defendant’s plea to the jurisdiction on the premises defect claim but denied it on the other claim. The hospital appealed. The appellate court ruled that the plaintiff had simply styled the premises defect claim differently in her § 101.021(2) claim. It also ruled that the petition didn’t show she couldn’t cure the pleading defects and state a claim within the waiver of immunity under § 101.021(2).

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Published on: November 2, 2016

Texas Accident Involving Construction Vehicle

By Carabin Shaw

In Blevins v. Pepper-Lawson Construction, the plaintiff appealed after a jury awarded him $170,850 for injuries suffered when he hit a construction vehicle driven by an employee of a masonry company.

The case arose one evening when the plaintiff was driving near a high school under renovation. A subcontractor of Pepper-Lawson Construction was doing some masonry. The plaintiff tried to pass a car but instead hit the mason’s construction vehicle. He was hurt and sued Pepper-Lawson, the mason, and the driver of the construction vehicle.

At trial, he argued that the construction vehicle should not be driven on a public road without a road kit (headlights and tail lights), and there was a failure to warn. A witness testified at trial that she was driving in the same area, which was well lit. A motorcycle sped around her in the right lane, followed by the plaintiff’s truck, which was also speeding. She believed they were racing and stopped her car because she saw that the plaintiff was driving as if he didn’t see the construction vehicle and was going to hit it.

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Published on: November 2, 2016

Spoliation of Evidence in a Texas Trucking Accident Lawsuit

By Carabin Shaw

Trucking companies often deny liability in truck accident cases, and in some cases, they even destroy or falsify evidence to avoid liability. It is important to retain an attorney who understands how to obtain discovery in a Texas truck accident lawsuit. In Greenwood Motor Lines, Inc. v. Bush, a trucking company and its driver appealed a verdict in favor of the plaintiff.

The trucking company argued a number of things, including insufficient evidence and incorrect handling of allegations of spoliation of evidence.

The case arose when the plaintiff was rear-ended by the defendants’ tractor trailer while driving east on I-20 one night. The plaintiff suffered physical and neurological harm that necessitated surgeries and caused her pain up to and through the trial. Her two dogs were killed.

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Published on: October 24, 2016

Volunteer Emergency Workers and Sovereign Immunity in Texas

By Carabin Shaw

In Freer Volunteer Fire Department v. Wallace, a Texas appellate court considered a sovereign immunity case. The case arose when an ambulance driver was driving a man who was suspected to be having a heart attack to the hospital in an ambulance owned by the Freer Volunteer Fire Department. The ambulance hit the plaintiff’s car. The plaintiff’s daughter was a passenger in the car.

The plaintiff sued the driver and the city, claiming that the driver’s negligence injured her and her daughter. The driver filed an answer, claiming to be in the course and scope of his employment as a volunteer fireman and arguing he was immune from suit. The plaintiff added the Freer Volunteer Fire Department as a defendant. It filed an answer, also claiming that the driver was in the course and scope of his employment as a volunteer for it and that it was immune from suit. The plaintiff amended her petition again to drop the city as a defendant.

The driver and the Freer Volunteer Fire Department moved jointly to dismiss the driver under section 101.106(e) of the Texas Tort Claims Act (“Act”). This code section specifies that if a lawsuit is filed against a governmental unit and its employees, the employees must be immediately dismissed once the governmental unit files a motion for dismissal. In this case, the motion stated the driver was a volunteer employee and asked for dismissal. The plaintiff did amend and dropped the driver as a defendant.

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Published on: October 11, 2016

Is a Gap Between the Cattle Guard and the Road a Special Defect in Texas?

By Carabin Shaw

Gonzalez v. Bandera County arose when the plaintiff was thrown from his motorcycle on a Texas public road while crossing a cattle guard in 2013. While crossing the cattle guard, which was maintained by Bandera County, he lost control of the vehicle and crashed.

The plaintiff filed suit against the county and others, claiming that the cattle guard presented an unreasonably dangerous risk of harm, due to an unreasonably dangerous difference in height between the paved road and the cattle guard. He also claimed that bars of the cattle guard weren’t welded together appropriately, such that there were sharp edges exposed in a gap. He also claimed that there were no signs warning that a cattle guard was coming.

The county filed a plea to the jurisdiction and argued it had sovereign immunity from suit. The court granted this plea. The plaintiff appealed.

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Published on: October 11, 2016

When Is a Certificate of Merit Required in a Wrongful Death Claim Against a Texas Engineering Firm?

By Carabin Shaw

In Jacobs Engineering Group, Inc. v. Elsey, two engineering companies appealed the trial court’s denial of a motion to dismiss the plaintiffs’ wrongful death lawsuit. Their argument was that the plaintiffs had failed to file a certificate of merit as required by section 150.002 of the Texas Civil Practices and Remedies Code.

The case arose upon the wrongful death of a man who worked as a sound engineer for 30 years, most of the time for Lockheed Martin and Jacobs Engineering, but also for NASA. The decedent built structures for testing in the acoustics lab. All of the construction was performed at the direction of the defendants. In bringing their lawsuit, the man’s surviving family argued that when he constructed these structures, he wasn’t given the appropriate personal protective equipment to work with various materials that contained carcinogens.

The family also alleged the decedent had come home every day covered in a dust that contained carcinogens that led to his getting cancer and dying. Although he’d been provided uniforms because the defendants knew he’d be covered in fine dust, he hadn’t been given protective equipment like face masks.

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Published on: October 4, 2016

Causation and Expert Reports in a Texas Medical Malpractice Lawsuit

By Carabin Shaw

In JSC Lake Highlands Operations, LP v. Miller, a Texas appellate court considered causation in a wrongful death case. The case arose when a woman was discharged from the hospital and admitted to JSC (the defendant’s facility) for rehabilitation. The following month, she received a phone call from her daughter, who thought she sounded strange. That evening, she told the staff that her dental bridge was missing, but the staff couldn’t find it.

The staff called the woman’s other daughter and told her that her mother was upset about losing the bridge. The daughter sent her husband to look for the bridge at the facility. He couldn’t locate it. The daughter spoke to her mother that evening and thought that her voice sounded raspy. The woman started coughing and showing chest congestion shortly thereafter. A doctor ordered a chest x-ray and Robitussin. The staff didn’t tell him her bridge was missing.

The chest x-ray said little more than that the heart was normal in size and configuration. The doctor was told of the results and ordered medication. The woman was found unresponsive in her room early in the morning. She was brought to the hospital but was unresponsive with seizure-like movements.

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Published on: October 4, 2016

Eggshell-Skull Rule in Texas Car Accidents

By Carabin Shaw

In Pattillo v. Franco, the plaintiff sued the defendant for damages sustained in a car accident. The jury didn’t award damages, and the plaintiff argued on appeal that the trial court had made a mistake in refusing to submit requested instructions regarding the eggshell-skull rule and circumstantial evidence.

The case arose in 2010 when the defendant rear-ended the plaintiff in stop-and-go traffic. The plaintiff claimed she was okay. Since there was not much damage, they exchanged insurance information and then continued on their way.

Three weeks later, the plaintiff went to a chiropractor, claiming she’d hurt her back in a car accident. She was later diagnosed with a lumbar herniated disc and received epidural steroidal injections in 2011. However, she had no medical treatment for her back during the following two years. She received a third epidural steroidal injection in 2014.

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Published on: September 13, 2016

Duty in a Work Injury Case in Texas

By Carabin Shaw

In Kalinchuk v. JP Sanchez Construction Co., a Texas plaintiff appealed summary judgment in favor of the defendant, a construction company. The case arose when a city hired a construction company to renovate one of its baseball fields. The city asked the construction company to move bleachers during the renovation, and two of the company’s employers did so with a forklift.

The plaintiff was a welder hired by the city who was asked to break the bleachers into smaller sections. While he was working, the bleachers fell on his back, causing an injury. He sued the construction company, alleging they were negligent and grossly negligent for failing to take sufficient precautions to make sure he was safe when moving the bleachers.

The construction company moved for summary judgment. It argued that it didn’t owe a duty to the plaintiff as a matter of law because it didn’t employ or exercise control over the plaintiff. It also argued that the plaintiff had only produced a scintilla of evidence to show there was a duty, a breach of duty, and causation. The plaintiff’s response included deposition testimony from the plaintiff, construction company employees, and his supervisor. The trial court granted summary judgment nonetheless, although it didn’t state the reason for its decision.

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