Texas Injury Lawyers Blog

Published on: June 13, 2013

Texas Ranks Third in the Number of Dog Bite Claims Reported by State Farm

The American Veterinary Medical Association estimates that the dog population in the United States reached approximately 70 million in 2011. This means that over 35% of the U.S. population has a dog. Unfortunately, this also leads to a high incidence of dog bites and dog attacks.

Indeed, a report released by State Farm on May 15, 2013, revealed that there are approximately 4.7 million dog bite victims each year. Dog bites are not only a serious health and safety issue that can cause injury and even death, but dog bites can also cost dog owners, insurance companies, and the nation a great deal of money. In fact, the Insurance Information Institute estimates that in 2012, insurers across the country paid nearly $489 million in dog bite claims.

At the same time, the U.S. Centers for Disease Control and Prevention (CDC) says 800,000 Americans seek medical attention annually for dog bites. Of those injuries, nearly half require emergency room treatment. According to Prevent the Bite, a nonprofit organization devoted to dog bite prevention, many of those injuries are to children. The organization reports that from 2001 to 2011, dog bites were the ninth leading cause of nonfatal unintentional injury to children ages 5 to 9 (512,638) and tenth for children ages 10-14 (412,895).

In 2012, State Farm alone paid about $108 million in dog bite claims in 2012. Although dog bite claims were down by 2.1% in 2012 from 2011, Texas (along with three other states on State Farm’s Top 10 states for dog bite claims–Illinois, Indiana, and Georgia) reported more claims. Notably, according to the report, Texas ranked number three in the United States for State Farm dog bite claims, behind only California and Illinois. Specifically, 236 claims were made in Texas alone, costing State Farm an estimated $4.3 million.

Summer can be the most dangerous time of the year for dog bites as kids, neighbors, friends, relatives and pets interact more frequently. The National Dog Bite Prevention Coalition and the CDC provide various tips to prevent dog bites, including:

1. Do not leave a baby or small child alone with a dog, even if it is a family pet.
2. Never put your dog in a position where it feels threatened.
3. Put your dog on a leash in public.
4. Do not play aggressive games with your dog (e.g., wrestling).
5. Do not approach an unfamiliar dog.
6. Remain motionless (e.g., “be still like a tree”) when approached by an unfamiliar dog.

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Published on: June 10, 2013

Wrong Way Drivers on Texas Roads

By Carabin Shaw

Wrong Way Drivers – Info and Stats on the Idiots that can Kill You

Drivers, some may call them idiots or drunks or other applicable names – who somehow manage to travel the wrong way on a restricted roadway such as a freeway represent a significant risk of catastrophic injuries or death to you, your family or friends.

While wrong way driving crashes are less frequent than other types or causes of auto accidents, these head-on collisions usually result in serious, life-altering injuries and deaths to all individuals involved.

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Published on: June 9, 2013

The Most Common Reason Behind Medical Malpractice Lawsuits is Mistake in Diagnosis

By Carabin Shaw

According to a recent article in The New York Times, citing a study published online by BMJ Quality & Safety on April 22, 2013, most medical malpractice settlements and damage awards were the result of diagnostic mistakes. In fact, the study, which was compiled using the National Practitioner Data Bank, found that among the 350,706 paid malpractice claims analyzed from 1986 to 2010, diagnostic errors appeared to be the most common, most costly, and most dangerous types of medical mistakes.

More specifically, the report found that diagnostic errors were the leading type of paid medical malpractice claims (28.6%), and accounted for the highest proposition of total payments at 35.2%. Additionally, diagnostic errors accounted for 33.8% of the disabilities and almost 40% of the deaths that resulted in medical malpractice payments. Notably, more diagnostic errors were outpatient than inpatient (68.8% vs. 31.2%). However, inpatient diagnostic errors were more likely to be lethal (48.4% vs. 36.9%).

After diagnostic errors, treatment errors and surgical mistakes accounted for the second and third highest reasons for payouts. All other errors combined, including birth injuries and other obstetrical errors, medication mistakes, monitoring mistakes and anesthesia mistakes, accounted for only 20% of payouts total.

Moreover, a study of 190 errors at a VA hospital system in Texas found that, while many diagnostic errors involved common diseases such as pneumonia and urinary tract infections, 87% of these errors had the potential for “considerable to severe harm”, including “inevitable death.” A commentary on the Texas VA study revealed that misdiagnosis is not limited to hospitals. The commentary estimates that “with more than half a billion primary care visits annually in the United States . . .at least 500,000 missed diagnostic opportunities occur each year at U.S. primary care visits, more resulting in considerable harm.”

Dr. David E. Newman-Toker, a senior author of the study and an associate professor of neurology at John Hopkins, stated, “this is a major health problem”, and “physicians, hospitals, and insurers all need to contribute to fixing it.” Indeed, problems with misdiagnosis are not a new problem. In 1991, the Harvard Medical Practice Study found that misdiagnosis accounted for 14% of adverse events and that 75% of these errors involved negligence such as failure by doctors to merely follow up on test results. Furthermore, a 2009 report funded by the federal Agency for Healthcare Research and Quality found that 28% of 583 diagnostic mistakes reported by doctors were life threatening or had resulted in death of permanent disability.

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Published on: May 29, 2013

FDA Proposes Change to Safety Approval Process of Metal-on-Metal Hip Replacement Implants

By Carabin Shaw

As previously reported by Carabin Shaw, there have been a number of hip replacement recalls in recent years, including recalls of the of the DePuy ASR Hip, the Biomet M2a Hip, the Stryker Rejuvenate and the ABG II, among others. These recalls brought attention to the potentially serious injuries that could be caused by metal-on-metal hip replacement implants.

The Food and Drug Administration (FDA) cites the following general risks for all types of hip devices:

• Hip dislocation
• Bone fractures
• Joint infection
• Nerve damage, including numbness/weakness
• Device breakage or loosening
• Differences in leg length
• Bone loss (osteolysis)

In addition, due to the friction caused between metal components, all-metal hip replacements may shed bits of metal, causing these additional specific injuries:

• Damage to the bone and tissue surrounding the hip joint
• Loose implants and loss of mobility
• Complications from metal in the bloodstream, including damage to the heart, kidneys, nervous system and thyroid
• Severe inflammation
• Pseudotumors
• Infections
According to The New York Times, manufacturers rarely tested metal-on-metal hip replacements before placing the devices on the market. Not surprisingly, the devices failed at high rates soon after being implanted. As a result, many patients were forced to undergo costly and painful procedures to replace the devices. Due in part to the high number of recalls and injuries, in January 2013, the FDA proposed a rule that would require that the manufacturers of metal-on-metal hip replacement implants prove that their devices are safe and effective before they could continue selling existing implants through the premarket approval (PMA) process. The proposal would also require that manufacturers obtain approval for all new metal-on-metal designs.

The new process differs from the current 510(k) approval process, which merely requires that a product be equivalent to another product already on the product. More specifically, the new pre-approval process will also require all-metal hip replacement manufacturers to submit clinical studies to the FDA prior to placing them on the market, something manufacturers are not required to do under the current approval process.

On April 18, 2013, Consumers Union sent a comment letter to the FDA signed by more than 11,000 consumers. The letter expressed support for the proposal’s requirement to necessitate all metal-on-metal to be reviewed through the FDA’s PMA process. At the same time, the letter also strongly urged the FDA to push all manufacturers of metal-on-metal hips to remove their products from the market.

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Published on: May 24, 2013

National Safe Boating Week : May 18-24, 2013

By Carabin Shaw

The National Safe Boating Council (NSBC) runs the North American Safe Boating Campaign each year. In advance of the kick off to summer, the week leading up to Memorial Day Weekend (May 18-24, 2013) is recognized as National Safe Boating Week.

As part of National Safe Boating Week, the U.S. Coast Guard initiated its “Wear It” campaign. The Coast Guard’s Safe Boating Campaign also advocates the following principles:

1. Wearing a life jacket saves lives.
2. Designate a driver. Sober boating saves lives.
3. Boater education saves lives.
4. Safe boats save lives.

The campaign hopes to educate the boating community about the importance of wearing life jackets and the various life jacket options available.

In 2012, an estimated 651 boating deaths were reported nationwide. Moreover, in 2011, the Coast Guard counted nearly 4,600 accidents that led to 758 deaths, 3,081 injuries and approximately $52 million dollars of property damage. Highlighting the importance of wearing a life jacket, 70% of those individuals involved in fatal boating accidents drowned, and 84% were not wearing a life jacket. Not surprisingly, the highest incidents of these accidents occur during the summer months of June and July.

A 21% increase in Texas boating accidents from 2010 to 2011 underscores the need for additional boating safety awareness. In Texas alone, 162 accidents were reported in 2012, with 32 fatalities reported. Texas Parks and Wildlife partnered with the Lower Colorado River Authority, the NSBC, the U.S. Coast Guard and other sponsors to promote the “Nobody’s Waterproof” campaign. The campaign is designed to increase water safety awareness and encourage the practice of safe boating. Texas also participates in the “Wear It” campaign.

In addition to the importance of wearing life jackets, it is essential to highlight the risks of driving a boat under the influence of alcohol. Driving a boat under the influence is just as dangerous as driving a car while impaired. It is illegal in all states to operate a boat while under the influence. According to the 2012 Recreational Boating Statistics released by the U.S. Department of Homeland Security and the U.S. Coast Guard, aside from Florida, the State of Texas had the highest number of boating accidents that cited alcohol as a contributing factor.

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Published on: May 15, 2013

Bicycling Safety Tips for You and Your Family

By Carabin Shaw

As summer approaches, you and your children will have more free time, which may mean more time for them, and you, to participate in outdoor activities, including bike riding.

According to the U.S. Department of Transportation’s National Highway Traffic Safety Administration, in 2011, 677 pedacyclists were killed and an additional 48,000 were injured in motor vehicle crashes. This accounts for 2 percent of the people injured in traffic accidents in the United States each year. In Texas, pedacyclist traffic fatalities accounted for 1.4% of all traffic accident fatalities in 2011.

To ensure safe bicycle riding for you and your children, it is important to familiarize yourself and your children with the state and local laws.

In the State of Texas, all bicyclists, including children, must follow Texas Motor Vehicle laws while using public roads in Texas–this means that a person riding a bicycle has the same rights and duties of any driver.
The City of San Antonio is embracing the popularity of bicycle riding in Texas through its adoption of the Bike Light Ordinance and Safe Passing Ordinance. The Bike Light Ordinance, which is the same as Texas state law, requires that all bicycles have a front white light and a rear red reflector or red rear light. Failure to comply with the ordinance can lead to a fine of up to $200.

In addition, the City of San Antonio also adopted the Safe Passing Ordinance to help increase safety for bicyclists. The ordinance establishes a requirement that all motor vehicle operators maintain a safe passing distance from bicyclists–generally, 3′ for cars and 6′ for commercial or large trucks. Failure to keep a safe distance from bicyclists pursuant to this ordinance can lead to a fine of up to to $200.

Other important state and local bicyclist laws to remember include:

• Like drivers, you must obey all traffic signals and signs.

• In the City of Antonio, unless you are a member of law enforcement or emergency personnel, you may not ride your bicycle on the sidewalk.

• Like drivers of motor vehicles, you must yield to pedestrians in crosswalks.

• Riding against traffic is illegal.

• Your bicycle should only be used to carry the number of persons it was designed to carry.

• You are required to always keep at least 1 hand on the handle bars.

• Your bike must be equipped with breaks.

• A bicycle in use may not be attached to a vehicle on the roadway.

• You must ride as far over on the right side of the road as practicable.

Failure to comply with any of these laws is a Class C Misdemeanor, punishable by a fine of up to $200.

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Published on: May 12, 2013

What is Distracted Driving?

By Carabin Shaw

Distracted driving includes activities such as eating, applying make-up, reaching into the backseat, using in-vehicle navigation systems and cell phone use. Yet, while there are many forms of distracted driving, all of which increase the likelihood of car crashes, cell phone use by drivers is the most deadly threat due to the fact that more drivers are engaging in cell phone use, and for longer periods of time. In fact, according to a 2012 survey conducted by the AAA Foundation For Traffic Safety, more than two in three drivers report talking on their cell phone while driving at least once in the past 30 days.

Cell Phone Conversations

The dangers of texting while driving receive the most attention in the media; however, using a cell phone to simply have a phone conversation, even with the use of hands-free technology, is also very dangerous. The National Safety Council estimates that 24% of all motor vehicle crashes involve cell phone use.

Additionally, drivers talking on handheld or hands-free cell phones are four times as likely to crash. Notably, a controlled driver simulator study conducted by the University of Utah found that drivers using cell phones had slower reaction times than drivers with a .08 blood alcohol content, the legal intoxication limit.

Traditional Texting vs. Voice-to-Text

In addition to having cell phone conversations while driving, approximately thirty-five percent of drivers admitted to reading a text or email while driving and twenty-six percent admitted to typing a text or email. What many people do not realize, however, is that voice-to-text may be just as distracting as traditional texting using your hands.

A study carried about the Texas Transportation Institute at Texas A&M University reveals that sending text messages via voice while driving can be just as dangerous as texting using your hands. Specifically, the study found that not only did it take drivers using voice-activated texting longer to send a message than traditional texting, but also that while texting (whether via voice or with fingers), a driver’s eye contact with the road decreased and response times were significantly delayed. Notably, and potentially the most concerning, is that drivers using speech-to-text devices felt like they were safer, despite the fact that the study revealed just the opposite: both types of texting are dangerous.

Steps Being Taken to Reduce Distracted Driving

Many steps have been taken to reduce the incidence of distracted driving, particularly, distracted driving associated with mobile devices.

For example, many states, including Texas, have enacted laws limiting the use of cell phones for some, or all individuals, while driving. According to the Texas Department of Transportation, in 2012, there were 90,378 traffic crashes in Texas that involved distracted driving. These crashes resulted in 18,468 serious injuries and 453 deaths. In fact, nearly one in four crashes in Texas involve driver distraction.

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Published on: April 25, 2013

As the Number of Emergency Visits Involving Energy Drinks Rises, Individuals and Groups Push the FDA for Increased Regulation

By Carabin Shaw

In March 2013, a group of doctors and researchers sent a letter to the Food and Drug Administration (“FDA”) urging it to take action to protect teens and children from the health risks associated with energy drink consumption. The letter specifically states that there is scientific evidence that the high level of caffeine in energy drinks–about 80 to more than 500 milligrams of caffeine, compared with amount 100 mg in a 5-ounce cup of coffee or 50 mg in a 12-ounce soda–have adverse health and safety consequences.

Indeed, in the eight years since energy drinks such as Monster, Red Bull, Rockstar, and 5-Hour Energy have been on the market, the FDA has reported six deaths and eighteen hospitalizations associated with the energy drink Monster alone. In addition, according to the FDA, 5-Hour Energy drinks have been cited in 13 deaths in the last four years. Moreover, federal data shows that the number of emergency department visits involving energy drinks doubled from 10,068 visits in 2007 to 20,783 visits in 2011.

According to the Drug Abuse Warning Network (DAWN), a public health surveillance system that monitors drug-related emergency department visits in the U.S., the majority of energy drink-related emergency department visits involved either adverse reactions or misuse or abuse of drugs. Although males make up two-thirds of the energy drink-related emergency room visits since 2007, emergency room visits doubled for both sexes from 2007 to 2011. Finally, of the 20,783 emergency room visits in 2011, 58% involved only energy drinks, while the remaining 42% involved other drugs as well.

Typical problems linked to excessive caffeine consumption can include anxiety, headaches, irregular heartbeats and heart attacks. Other possible side effects include:

Caffeine toxicity
High blood pressure
Withdrawal
Dehydration
Irritability
Insomnia
Death

Notably, effects of the energy drink are even more heightened in individuals that suffer from certain pre-existing or undiagnosed conditions, including heart problems, epilepsy, seizures, mood or behavioral disorders. Individuals who use certain medications or other supplements may also be at a higher risk of health complications.

Recent Lawsuits
These deaths and hospitalizations have led to an array of lawsuits against energy drink companies. Last year, the family of a 14-year old Maryland girl sued Monster Beverage, alleging that its energy drink was responsible for the girl’s death. The teenage girl went into cardiac arrest after drinking two, 24-ounce cans of Monster in a 24-hour period. Monster Beverage denies the allegations, stating that a team of physicians they hired to review the girl’s medical records found no evidence to show caffeine was a factor in the girl’s death, concluding that she likely died of natural causes.

In addition, a class action lawsuit was also filed against Monster Beverage by its shareholders, alleging that the company knowingly marketed, advertised, and sold the drink as a safe beverage despite its toxic mix of ingredients.

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Published on: April 23, 2013

National Highway Traffic and Safety Administration Investigations and Recalls May Not Accurately Represent Car Safety

By Carabin Shaw

In 2012, about 16.2 million car and truck owners received notification that their vehicles had safety problems and were being recalled. However, despite the high number of recalls, according to the Center for Auto Safety, changed auto recall accounting methods are raising questions about the productivity of defect investigations. Additionally, according to John Claybrook, former head of the National Highway Traffic Safety Administration (“NHTSA”), investigations by the agency are taking longer than they should, meaning many drivers could be driving unsafe vehicles without being aware of it.

The Department of Transportation’s NHTSA has the authority to issue vehicle safety standards and to require manufacturers to recall vehicles that have safety-related defects or do not meet Federal safety standards. Recalls are necessary when a vehicle or vehicle equipment (including tires) does not comply with a Federal Motor Vehicle Safety Standard or when there is a safety-related defect in the vehicle or equipment.

While manufacturers voluntarily initiate many recalls, auto companies are required to tell the NHTSA about claims they receive about serious injuries and deaths in their vehicles, so that NHTSA can then investigate the claims. Owners may also submit complaints to the NHTSA, prompting investigations.

Recall Accounting Methods Raises Safety Concerns

Due to budget issues, 28 NHTSA investigators handle every inquiry and complaint brought to the agency–meaning 28 individuals are responsible for investigating every automaker, truck maker or parts supplier.

In a recent New York Times article, David Strickland, current NHTSA administrator, argues that the limited number of investigators are sufficient due to new tools for data analysis, which allow the investigators to work more efficiently. Strickland added that NHTSA investigations resulted in 134 vehicle recalls in 2012, the second highest number since 1966.

According to the executive director of the Center for Auto Safety, Clarence Ditlow, however, the total number of recalls does not accurately measure the agency’s productivity since one inquiry can generate dozens of recalls. Specifically, federal auto safety regulators are counting what used to be considered multiple recalls as one recall. For example, 61 of the 131 recalls reported in 2011 resulted from one investigation involving aftermarket sunroofs–any car dealership or business that installed a sunroof was listed as a separate recall. As a result, the number of investigations actually being carried out is far fewer than expected based on the number of recalls.

Defect Investigations Taking Too Long and Kept Secret

In 2011, the U.S. Transportation Department reported that not all investigations were being completely in a timely fashion. At that time, the Transportation Department reported that 40% of those cases investigated missed the deadline by an average of six months. More recently, however, NHTSA’s investigations into possible defects and safety issues have been taking much longer than the agency’s own 12 months guideline. According to Claybrook, a safety investigation into 2002-2005 Ford Explorers and Mercury Mountaineers took 42 months–well over the agency guidelines of 12 months.

Perhaps even more concerning, is the fact that information about the investigations is only available to the public and news media through a Freedom of Information Act request. Even then, carmakers can still request the information they submit to the NHTSA be kept confidential. This means that car buyers may not learn the vehicles they own or are thinking about buying have raised safety concerns at NHTSA and among auto manufacturers.

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Published on: April 15, 2013

Anemia Drug Omontys Used to Treat Kidney Dialysis Patients Recalled Following Serious Allergic Reactions

By Carabin Shaw

Less than one year after the U.S. Food and Drug Administration (“FDA”) approved the Omontys (peginesatide) injection, pharmaceutical company Affymax, Inc. (“Affymax”) and its partner, Takeda Pharmaceutical Co. (“Takeda”), voluntarily recalled the anemia treatment for kidney dialysis patients after reports of fatal allergic reactions.

Since its approval by the FDA in March 2012, more than 25,000 kidney dialysis patients have used Omontys to treat anemia stemming from chronic kidney disease. Omontys was favored over other similar drugs because it only had to be infused once a month as opposed to other anemia drugs that often must be given more than a dozen times per month. Omontys also broke the previous monopoly that Amgen’s Epogen and Aranesp had on treating anemia in dialysis clinics. Notably, Epogen and Aranesp have also run into their own safety problems, including an increased risk of heart attacks and strokes associated with the overuse of the drugs.

Unfortunately, on February 23, 2013, the FDA revealed that it had received nineteen reports of anaphylaxis, three to five of which resulted in death. Other patients required prompt medical attention, including resuscitation, or hospitalization. Anaphylaxis is a severe allergic reaction. While the severity of the reaction varies from person to person, symptoms include flushing of the skin, hives, swelling of the tongue and throat, and difficult swallowing and breathing. Symptoms can be life-threatening or fatal.

According to the New York Times, approximately 0.02% of patients treated with Omontys have experience a fatal reaction following the first intravenous administration. Overall, approximately 2 out of every 1,000 patients had a hypersensitivity reaction. These reactions were surprising given that no cases of hypersensitivity were recorded in any of the clinical trials. As a result, the original Omontys warning label contained no warning of possible allergic reactions. By August 2012, however, the FDA was receiving reports about severe allergic reactions to the drug. Additionally, by Fall 2012, Affymax contacted the FDA about adding an updated warning label, cautioning of the risk of severe allergic reaction.

Notably, both the FDA and the drug companies reported that the serious allergic reactions occur within 30 minutes of the drug being administered for the first time. There have been no reports of such allergic reactions in subsequent doses or in patients that completed their dialysis sessions. In fact, according to the press release issued by the drug companies, the most common adverse reactions in clinical studies of patients treated with Omontys were dyspnea, diarrhea, nausea, cough, and arteriovenous fistula site complication.

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