Texas Injury Lawyers Blog

Published on: March 16, 2015

Statute of Limitations Bars Texas Failure to Diagnose Cancer Case

Texas Civil Practice and Remedies Code section 74.251 sets forth the statute of limitations on health care liability claims. The limitations period is measured from the occurrence of the breach or tort, or the last date of treatment, or the last date of relevant hospitalization. The plaintiff can’t choose the date most favorable to him or herself. Instead, the limitations period begins to run on the date of the breach if it was ascertainable. At that point, the plaintiff needs to give written notice of the claim to a doctor at least 60 days before filing a complaint.

In Estate of Klovenski v. Kapoor, an appellate court considered a failure to diagnose cancer case. The plaintiffs brought wrongful death and survival claims against the defendant doctor on the grounds that the doctor failed to diagnose cancer in the decedent.

The decedent had complained to the doctor about a mass in her left thigh in 2006 and was told it was not problematic and didn’t require medical care. When the decedent continued to experience pain, she complained again and again, but the doctor told her she didn’t have anything to worry about. Another doctor eventually determined that the mass was cancerous, and the decedent died in the summer of 2007. Her survivors asserted that the doctor had been negligent in failing to diagnose cancer and treat the decedent and that this failure caused her death.

Continue reading →

Published on: March 16, 2015

No Constructive Notice in Texas Slip and Fall Case

By Carabin Shaw

In Young v. Wal-Mart Stores Texas, LLC, a plaintiff appealed the trial court’s grant of summary judgment in a slip and fall case. The case arose when the plaintiff went through the self-checkout lane to buy ice cream. While leaving, she slipped in clear liquid and hurt her knee, ankle and hip. A cashier came over and asked if she was all right and left to get paper towels. The plaintiff wasn’t sure how much water she had slipped on, but later testified it took the cashier two trips to get enough paper towels to mop it up. After falling, the plaintiff talked to employees that came up to her.

She said that none of the employees said they knew there was a water puddle on the floor before she fell. The ambulance took her to the hospital. Later, the cashier testified that she was working in the self-checkout area for half an hour before the plaintiff fell. She said that she glimpsed the accident from the corner of her eye and then saw the plaintiff on the floor. The cashier went over to help the plaintiff and saw a puddle of water six inches in diameter. She had a paper towel in her hand and wiped up the puddle with the towel. The cashier said she hadn’t seen a substance there before the fall and didn’t know how long it was there, though she didn’t think it was there long because she had been walking around in that location and would have cleaned it if she had seen it.

The plaintiff sued the store for premises liability. The store filed a motion for traditional and no-evidence summary judgment, arguing that there wasn’t any evidence it knew or should have known about the dangerous condition. The store attached the plaintiff’s deposition as evidence and the plaintiff responded with both her deposition transcript and the cashier’s. The trial court granted the motion and rendered a take-nothing judgment.

Continue reading →

Published on: February 21, 2015

Is A Texas Hospital Slip and Fall a Healthcare Liability Claim?

By Carabin Shaw

In East El Paso Physicians Medical Center, LLC v. Olivia Vargas, an 81-year-old plaintiff who used a walker claimed she was injured when she went to a hospital facility. As she left the building, the automatic doors closed on her walker, and she fell and suffered a shoulder injury. She sued the hospital, arguing that the hospital had failed to correct a dangerous condition, failed to warn her about the dangerous condition, and failed to set and enforce appropriate safety standards.

The hospital moved to dismiss. It argued that the claim was a health care liability claim under the Texas Medical Liability Act (“the Act”). Under the Act, the plaintiff had to submit an expert report showing causation within 120 days of filing a health care liability claim. The hospital argued the plaintiff’s failure to file an expert report required that her case be dismissed. The trial court denied the motion to dismiss. The hospital appealed.

The hospital argued that the trial court had erred in denying its motion because the plaintiff’s allegations related to state regulations controlling hospital construction. It further argued that the plaintiff had not filed an ordinary premises liability claim, but a claim based on the standards that a hospital had to meet to offer health care services in Texas. The appellate court found that this argument didn’t sufficiently distinguish between the current case and other premises liability cases to bring the plaintiff’s claim within the requirements of the Act. Continue reading →

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.

Continue reading →

Published on: January 26, 2015

No Liability Found in Texas Defective Ventilator Case

By Carabin Shaw

In Texas, to prove a product liability case, a plaintiff must show the product was defective, the product reached the plaintiff in a defective condition, the defect made the product unreasonably dangerous, and the defect caused the plaintiff’s damages. In a 2014 products liability case, a deceased woman’s estate appealed a summary judgment in favor of the company Respironics.

The case arose when the woman contracted Lou Gehrig’s and became paralyzed. She needed a respirator to breathe. The woman’s husband bought a home respirator and hired a nurse through a nursing service. In 2004, a nurse was caring for the woman and allegedly adjusted a valve on the respirator incorrectly.

The deceased woman’s husband sued the medical staffing agency for negligence. The plaintiff’s third amendment joined Respironics, which designed, manufactured, and sold the respirator. He claimed the ventilator was designed and manufactured to allow a patient to suffer respiratory arrest without sounding an alarm. He also claimed the ventilator was marketed with inadequate warnings that there would be no alarm for respiratory arrest. Continue reading →

Published on: January 26, 2015

Texas Jury Verdict for Defendant Affirmed in Refinery Accident Case

By Carabin Shaw

In the recent Texas appellate case of In re Wyatt Field Service Company, the court considered whether a new trial was warranted in connection with two plaintiffs’ serious personal injuries that arose from a refinery accident. At the refinery, crude oil is turned into gasoline. Tar is a byproduct of the process. The tar is broken down into pure carbon by a flexicoker unit. The carbon is called “coke.” The coke is heated and returned as a source of heat for the reactor.

Exxon Mobil performs maintenance on the flexicoker unit every two or three years. As part of the process, the heater has to be cooled down through spray from nozzles. The coke builds up in the nozzles and clogs them. The spray nozzles are replaced with dummy nozzles. The worker must pull the dummy nozzle out, and an Exxon Mobil employee closes the gate valve to keep steam and coke inside. Two employees of LWL, Inc. were removing the dummy nozzles in 2011, when one came out too far and the gate was not shut. Coke and steam were sprayed on them, causing burn injuries.

Later, Exxon Mobil investigated and found that the safety chain was in the wrong location and that Wyatt had reattached the safety chain in a previous maintenance session. The two employees of LWL sued Wyatt and ExxonMobil. ExxonMobil settled, so the trial proceeded only against Wyatt as the defendant. Continue reading →

Published on: January 26, 2015

Texas Recreational Use Statute Bars Grandmother’s Claim

By Carabin Shaw

In the recent ruling in City of Diboll, Texas v. Louie Lawson, a Texas appellate court considered a case in which a Texas city claimed the recreational use statute applied to the plaintiff’s claim and that it was not grossly negligent under the statute. The case arose when a woman went to a city park to watch her granddaughter’s softball game. When leaving the park, she tripped on a four-inch hollow pipe poking up from the center of the walkway on park grounds. It would usually act as a receptacle for a pole and create a barrier that prevented cars from entering the park. However, since the pole wasn’t in place, she tripped, fell, and suffered serious injuries.

The plaintiff sued the city for a premises defect. She died for unrelated reasons, but the personal representative of her estate substituted as the plaintiff. The city filed a plea to the jurisdiction and moved for summary judgment, which was denied. Accordingly, it appealed.

On appeal, the City argued that the plaintiff had been engaged in recreation under the recreational use statute, and so the plaintiff had to plead and prove the City acted with gross negligence. It further argued that the plaintiff had not pled it was grossly negligent, and the evidence showed it was not grossly negligent. Continue reading →

Published on: January 26, 2015

Can Your Chiropractor Testify in Your Texas Personal Injury Case?

By Carabin Shaw

Recently, in Moreno v. Ingram a Texas appellate court considered the question of whether a chiropractor can testify on the necessity of a plaintiff’s non-chiropractic medical treatment. The plaintiff sued the defendant for negligence, based on injuries and vehicle damage arising out of an auto accident. Before trial, she filed affidavits about her need for medical care. The court ruled these established the cost of the treatment was reasonable, but not that the treatment was necessary. The affidavits were admitted, but the references to necessity were redacted.

At trial, the plaintiff offered her chiropractor’s testimony. The chiropractor (Dr. Starry) testified about the necessity of her treatment by a pain management physician. This included epidural steroid injections and other non-chiropractic treatment. Digital animations were shown as demonstrative exhibits.

The plaintiff and defendant both testified about the crash, but their testimony contradicted each other. The plaintiff testified she had signaled to turn left from a parking lot. She also testified that the defendant was behind her but drove around on the left, swiped, and hit her. The defendant argued she was driving on the boulevard and wasn’t in the parking lot, and that the plaintiff pulled out of the driveway and caused the crash. Continue reading →

Published on: December 23, 2014

Liability Exception Under Chapter 95 in Texas

By Carabin Shaw

Under Chapter 95 of the Texas Civil Practice and Remedies Code, property owners will not be liable when a contractor or a subcontractor or its employee is hurt on a property owner’s property while performing repairs or construction. A property owner under the chapter is someone who owns real property that is primarily used for commercial or business purposes. The exception is when a property owner exercises or keeps control over the manner in which the work was performed, and the property owner had actual knowledge of the danger or condition resulting in the injury. At trial, a property owner will have to show that chapter 95 applies to the case.

In Rosa v. Mestena Operating LLC, a man and his wife sued a property owner for negligence and premises liability after the man suffered an on-the-job injury. The accident happened when the man was hurt at work while performing maintenance on electrical poles for his employer, a maintenance company. A utility company had an easement on the property and contracted with a maintenance company to perform maintenance on the poles.

The defendant, Mestena Operating LLC, was an operator of oil and gas wells that had a mineral lease on the property where the electrical poles were located. There was no contractual relationship between Mestena and the man’s employer. The plaintiffs claimed that the man had contacted an energized ground wire and suffered electric shock on the job. The ground wire was linked to equipment on the mineral lease. The plaintiffs theorized that the Mestena equipment, which was about 1,400 feet from the place where the plaintiff was located, had malfunctioned, causing the ground wire to be energized. The plaintiffs argued that Mestena knew or should have known about the danger of the ground wire. Continue reading →

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 →

Texas Injury Lawyer Blog