Texas Injury Lawyers Blog

Published on: December 10, 2015

Qualifications for an Expert in a Texas Medical Malpractice Case

In Mangin v. Wendt, the court considered a medical malpractice appeal. The trial court had ruled that the plaintiff’s medical expert reports that were filed in connection with the suit were sufficient, and the case could go forward. The doctors appealed.

The decedent was admitted to the hospital with chest pain. A cardiologist performed an angioplasty and implanted a stent. While working on the decedent, he perforated the plaintiff’s artery, and an anesthesiologist administered anesthesia. When the anesthesiologist tried to intubate the patient, he accidentally put the tube in the esophagus, resulting in the patient’s oxygen dropping and the patient suffering cardiac arrest. They ventilated the decedent and corrected the perforated artery through further surgery. However, the loss of oxygen caused him permanent brain damage, and he died two days later.

The decedent’s estate and two daughters sued the doctors and the hospital. They filed three expert reports on time in accord with Chapter 74 of the Texas Civil Practice and Remedies Code. The doctors filed motions to dismiss on the grounds that the expert reports were inadequate. After both the motions and the plaintiff’s responses were filed, one of the accused doctors provided a discovery response that stated the true name of the anesthesiologist that cared for the decedent and made the intubation error. The trial court denied the motions, and the doctors appealed.

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Published on: December 10, 2015

Limits of Vicarious Liability in Texas

By Carabin Shaw

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

Is a Medical Device Manufacturer a “Health Care Provider” in Texas?

By Carabin Shaw

In Verticor, Ltd. v. Wood, an appellate court considered whether personal injury lawsuits against a medical device manufacturer count as health care liability claims for the purposes of the Texas Medical Liability Act (TMLA). The case arose when a surgeon treated a herniated disc in the plaintiff’s lumbar spine by using a device called the “Eclipse Sphere,” which was manufactured by the defendant. After suffering complications, the plaintiff sued the doctor and the manufacturer.

The plaintiff argued that the surgeon had used the device in a non-fusion procedure, although it was only approved by the FDA for use in fusion procedures in the lumbar region. The FDA had also required that the device’s packaging and manuals include a warning about how its safety in non-fusion procedures hadn’t been established yet.

The plaintiff argued that the doctor was professionally and grossly negligent in using the device in an off-label, experimental fashion and not getting his informed consent for it. He also claimed that the manufacturer had solicited the off-label use, alleging strict liability theories of failure to warn, negligent marketing, a breach of the implied warranty of merchantability, and fraud. The manufacturer claimed as an affirmative defense that it is a health care provider as defined by the TMLA.

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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: October 25, 2015

Can You Sue a Surgeon for Fraud in Texas?

By Carabin Shaw

In Cook v. Neely, a woman sued a neurosurgeon for health care liability and fraud. The case arose when the plaintiff experienced pain in her hip, leg, and lower back. She sought care from the neurosurgeon, who performed surgery on her, removing her herniated disc and placing two medical devices known as bone plugs to stabilize her spine.

After surgery, the doctor continued to provide care to the woman. At every office visit, she was examined, and x-rays were taken of the area with the bone plugs. He told her that the bone plugs were in a good position. At her last visit, the doctor recommended she have another surgery to address other spinal problems. She was examined by a different surgeon, who told her that the bone plugs compressed her nerve roots. He recommended that the bone plugs be removed. The other doctor did remove the bone plugs in a second surgery.

She sued the neurosurgeon under the Texas Medical Liability Act (“TMLA”). She argued that the neurosurgeon was negligent in his administration of health care treatment and failed to offer treatment according to the standard of care. She also alleged he had failed to position the medical devices correctly. Later, she added a claim of fraud, alleging that the neurosurgeon had committed fraud by misrepresenting the position of the bone plugs as excellent. She argued she relied on these representations to her detriment and was stopped from seeking help for the badly positioned bone plugs.

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Published on: October 25, 2015

Liability for Dog Bites in Texas

By Carabin Shaw

In Bowman v. Davidson, a Texas appellate court considered a case in which a guest at a couple’s home was bitten in the face by their dog. She suffered severe injuries and sued the couple. She claimed that since they had actual or constructive knowledge about their dog’s abnormally dangerous tendencies, they were strictly liable for her injuries, or alternatively they were negligent in failing to use reasonable care to stop the dog from hurting her. The jury found for the couple on both of these theories.

The plaintiff appealed, arguing that she was entitled to a positive jury verdict on strict liability as a matter of law, and in the alternative that the jury’s finding went against the weight and preponderance of evidence. The appellate court explained that the owner of a vicious animal may be held strictly liable for injuries in Texas. However, the owner of a non-vicious animal may be liable if he negligently handles the animal.

In order for strict liability to apply, the plaintiff will need to show: (1) the defendant owned or possessed the animal, (2) the animal had dangerous tendencies that were abnormal for the type of animal it is, (3) the defendant knew or should have known of these tendencies, and (4) the tendencies caused the plaintiff’s injuries.

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Published on: October 25, 2015

Expert Testimony in Texas Toxic Tort Cases

By Carabin Shaw

In Cerny v. Marathon Oil Corporation, a couple sued an oil corporation and others for private nuisance and negligence claims. They said that toxic emissions from the companies’ oil and gas operations near their home had caused injuries to their health and property.

The case arose when the couple moved into a fixer-upper in 2002. They leased mineral rights in their land to the predecessor of the oil corporation defendant. Subsequently, the defendant was authorized to use the surface of their land for oil and gas operations and to drill horizontal wells. The defendant didn’t put wellheads or infrastructure on the couple’s property, and they received consistent royalty payments.

In 2013, they sued the oil corporation and another party, alleging that they were negligent in their oilfield operations and these operations worsened existing health problems and caused new ones. Due to the oilfield operations, their property wound up with sink holes, and their home’s foundation was damaged. Their property was also surrounded by other wells and production facilities owned by the defendants, and these radically changed their rural lifestyle. They pled negligence, negligence per se, gross negligence, and private nuisance.

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Published on: October 25, 2015

When is a Medical Exam Warranted in A Texas Car Accident Case?

By Carabin Shaw

In In re Ruben Gonzalez, a cross-complainant filed a petition for a writ of mandamus to overturn the trial court’s order that required him to undergo a medical examination in a personal injury suit. The case arose in 2013 when the cross-complainant was involved in a multi-vehicle crash. A truck driver turned in front of his car, and the cross-complainant veered and crashed into a third vehicle driven by the plaintiff. The plaintiff sued the cross-complainant, the truck driver, the truck driver’s employer, and another. The cross-complainant then cross-claimed against the truck driver and his employer, seeking damages for his own injuries.

One of the cross-complainant’s treating physicians recommended that he have a surgery to remove four cervical discs and fuse his vertebrae. The truck driver and his employer deposed the doctor. The truck driver and employer also requested a medical exam of the cross-complainant, but the trial court denied this.

The cross-complainant got a second opinion about the way he should be treated. The second opinion physician had not yet been disclosed as a potential witness. The second opinion doctor recommended that the cross-complainant undergo a single-disc replacement surgery. His lawyer did disclose to the opposing attorneys that his client would have surgery, but he didn’t identify the second opinion doctor as the one who would perform it.

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Published on: October 1, 2015

Bicycle Accident on Public Property in Texas

By Carabin Shaw

In City of San Antonio v. Peralta, the plaintiff sued the city and the San Antonio River Authority after he suffered injuries in a bicycle accident on a river walk. The plaintiff was riding his bike to work, and at around 6 a.m., the bike crashed into sewer drainage. The metal plate covering the sewer had been removed. He was thrown over the bike and injured. He alleged that the negligence and gross negligence of the city and the River Authority were proximate causes of his injuries.

The plaintiff argued that their immunity was waived under the provisions related to special defects and premises defects in the Texas Tort Claims Act. The defendants argued in separate pleas to the jurisdiction that under the recreational use statute, they owed to the plaintiff only the limited duty owed to a trespasser. Specifically, they claimed there wasn’t any evidence they knew the metal plate was missing prior to the accident. They also argued the plaintiff had failed to show they were grossly negligent. Their pleas were denied, and they appealed.

The appellate court explained that governmental immunity protects governmental entities from lawsuits for monetary damages except in specific circumstances under the Texas Tort Claims Act (TTCA). Under the TTCA, a governmental entity can be liable for personal injuries based on a premises defect if the governmental unit would be liable to the plaintiff if it were a private person.

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Published on: September 21, 2015

Texas City Sued Due to Police Officer Use of Patrol Car

By Carabin Shaw

In City of Socorro v. Hernandez, a Texas appellate court considered a case in which the plaintiffs were involved in a car crash. Their car was rendered inoperable, and the electrical system died in the street. The hazard lights weren’t working. The police responded. The officer didn’t park his car behind the stalled car but instead parked on a side street, activating his overhead flashing lights. The officer ordered the two to push the stalled vehicle out of the road. A woman driving towards the accident was distracted by the police car’s lights and crashed into the police officer and the plaintiffs.

The plaintiffs sued on the grounds that their injuries and damages were proximately caused by the city’s negligence in failing to use warning lights in a way that would have warned other motorists about the dangerous condition in the road, placing the car in a side street and thereby distracting motorists from the dangerous condition, failing to take reasonable steps to make the road safe, and directing the plaintiff to push the car out of the road in spite of its inoperable condition.

The City filed a plea to the jurisdiction, which was denied by the trial court. The City appealed the denial. The court reviewed whether the allegations established that the city’s use of the police car proximately caused the injuries, whether the injuries were proximately caused by the use of the disabled car, and whether the dangerous condition created by the disabled car was a special defect.

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