Texas Injury Lawyers Blog

Published on: October 25, 2015

Can You Sue a Surgeon for Fraud in Texas?

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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Published on: September 21, 2015

Liability for Texas Restaurants When Patron Suffers Allergic Reaction?

By Carabin Shaw

In Gibbons v. Luby’s, Inc., the plaintiff suffered anaphylaxis at a Texas restaurant after eating a salmon croquette that she did not know contained whitefish, to which she was allergic. After she started eating, her throat became scratchy, and her face turned red. A restaurant employee told her that the ingredients included whitefish.

The plaintiff and her friend headed for the hospital, but it was too far away. The friend stopped at a fire station, and the paramedics treated her until an ambulance could come. She was unconscious by that point. She was taken to the hospital and diagnosed with anaphylactic shock, acute respiratory failure, and hypoxemia. By that time, Gibbons was unconscious.

Gibbons was taken by ambulance to the hospital, where she was admitted and diagnosed with anaphylactic shock, hypoxemia, and acute respiratory failure. The physicians sedated her, intubated her, and put her on life support. She was discharged two days later.

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Published on: September 21, 2015

Texas Slip and Fall in a Hospital

By Carabin Shaw

In Reyes v. Memorial Hermann Health, a plaintiff appealed from the dismissal of her personal injury claims against the defendant. The case was dismissed because she failed to timely file an expert report under section 74.351 of the Texas Medical Liability Act (TMLA).

The case arose when a woman slipped and fell on a liquid substance inside the defendant’s premises. There were no signs or other warnings about the unsafe flood conditions. She also claimed that the defendant knew or should have known about the hazardous condition, that it breached its duty of care, and that the breach caused her injuries. She claimed that her injuries and damages were proximately (legally) caused by the defendant’s failure to use reasonable care. She did not state specific details about why she was on the property.

The defendant filed a motion to dismiss on the grounds that it was a health care liability claim. and she had failed to file a timely expert report. She responded that her claims weren’t health care liability claims and that she’d filed an expert report. The trial court granted the motion to dismiss.

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Published on: September 21, 2015

Sufficient Evidence for Damages in Texas Car Accident Case

By Carabin Shaw

In Dabbs v. Calderon, a Texas Court of Appeals considered a case in which the defendant ran a red light and crashed into two cars. One of the passengers in one of the struck cars was pinned inside the car. When he was freed by emergency personnel, they found his leg was badly hurt. Doctors diagnosed him with a fracture in his shin bone and gave him a pain medication prescription, stabilized his leg, and discharged him. At home, his family had to cook for him and give him baths.

Three weeks later, his leg was covered in fracture blisters, and he had to stay at the hospital for five days. Six months later, he had to have a surgery, and he went to physical therapy three days a week for several months until April 2012. Later he testified that his right leg atrophied from non-use, and when he did try to use it, his foot would swell and turn blue.

The accident victim sued the woman who crashed into the two cars, claiming she negligently ran a red light because she was distracted. The woman claimed she couldn’t stop because her brakes failed.

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Published on: September 21, 2015

Meat-Cutting Work Injury in Texas

By Carabin Shaw

In Kroger Company v. Milanes, an employer that didn’t subscribe to workers’ compensation appealed from a final judgment in favor of its employee. The employee suffered serious injuries while cutting meat. On appeal, the employer raised multiple arguments, including the argument that the trial court had erred in submitting the plaintiff’s claim to the jury on a theory of general negligence rather than premises liability.

The plaintiff went through a one-day orientation before starting work in 2007. It didn’t include safety training, focusing instead on joining the union. He started out as a clerk in the meat department and was then promoted to apprentice meat cutter. As an apprentice, journeymen—more experienced meat cutters—trained him on how to use the meat cutters, including a bone-in band saw.

The plaintiff was trained a great deal by one particular journeyman, who he thought did a good job training him, but he never taught him to use a band saw blade guard as required by OSHA. He didn’t even know that the bone-in band saw had a blade guard for safety and was never given the operation manuals or warning labels. He thought it was used to line up the meat. The plaintiff eventually became a journeyman himself.

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