Texas Injury Lawyers Blog

Published on: August 9, 2015

Texas Medical Malpractice Claims Against a Governmental Entity

In University of Texas Health Science Center at Houston v. Cheatham, the appellate court considered the dismissal of a plaintiff’s health care liability claim based on immunity. The plaintiff had received a partial left heart bypass surgery by two employee doctors at the Health Science Center in 2008. Nurses helped doctors perform the procedure.

After the procedure, the plaintiff was X-rayed. The X-ray showed something metallic embedded within the plaintiff’s chest. He was taken back to the operator room, and the metallic object was a surgical needle. The plaintiff sued the doctors, alleging that they negligently left the needle in his chest. The doctors moved to dismiss on the grounds that they were government employees. The lower court granted the motion.

The plaintiff then filed an amended complaint, adding the Health Science Center as a defendant. The Health Science Center argued it was also immune. It claimed that the plaintiff had failed to give formal or actual notice as required by the Texas Tort Claims Act. It also filed evidence to support its plea to the jurisdiction. The plaintiff didn’t contest the evidence as inadmissible. The trial court denied the plea, and the defendant appealed.

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Published on: August 9, 2015

Use of Surveillance Video in Texas Oil Rig Work Injury Case

By Carabin Shaw

Diamond Offshore Services Limited v. Williams is a Jones Act case that arose when the plaintiff injured his back while trying to fix machinery on an offshore oil rig operated by a Texas defendant in Egypt. The plaintiff was a mechanic who had worked for the defendant two different times and in different capacities for about a decade.

One afternoon, before he was scheduled to come back to the U.S., a driller told him that the elevators had failed and he needed to repair them. He worked on the elevators for 30-40 minutes. He bent at the waist to scoot the elevators, which weighed hundreds of pounds, into his work area. While working, he felt a sharp lower back pain. When he was done, he saw a doctor who told him to rest. The next day, he felt back discomfort when bending in his bed.

The man’s back continued to hurt when he got home, and the defendant referred him to an orthopedic surgeon whom he saw 10 days later. The orthopedic surgeon was independent but had seen patients off and on for the defendant. The man told the doctor that he hurt his back on a rig in 2006, two years before the incident at issue in this case, and that he had leg pain.

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Published on: August 9, 2015

Motorcyclist Unable to Recover from City in Texas

By Carabin Shaw

In Northcutt v. City of Hearne, the appellate court considered governmental immunity in the context of a motorcycle accident resulting in the death of a motorcyclist. The motorcyclist was traveling northbound on Highway 79. A police officer had hidden on a driveway with his lights off to set up a speed trap. As the motorcyclist approached, the officer pulled his car out of the driveway to pursue a different vehicle. The motorcyclist was forced to swerve to avoid contact.

The motorcycle flipped, and he was thrown onto the highway. The defendant failed to swerve and hit him, resulting in the motorcyclist’s death. The decedent’s personal representative sued the City for negligence, seeking wrongful death and survival damages. She alleged that the city had waived its governmental immunity under the Tort Claims Act.

The City denied the allegations and put up a defense based on governmental immunity. It also filed a plea to the jurisdiction, claiming there were insufficient facts to support the claim it had waived its immunity. The trial court granted the plea. The plaintiff appealed.

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Published on: May 3, 2015

Texas Supreme Court Decides Recreational Use Statute Does Not Apply to Watching Sports Matches

By Carabin Shaw

In the recent case of University of Texas at Arlington v. Sandra Williams, the Texas Supreme Court considered whether the recreational use statute applies to those watching sports matches. The statute (Texas Civil Practice & Remedies Code section 75.001) protects landowners from run-of-the-mill negligence claims when they allow their property to be used for public recreation. However the protection only covers specific, defined recreational uses. Under the recreational use statute, plaintiffs suing landowners to whom the statute applies must prove gross negligence, malicious intent, or bad faith.

The court of appeals had determined that those watching sports matches were not doing an activity similar enough to the listed recreational uses, and it held that watching sports was not “recreation” under the statute. The defendant university asked the Texas Supreme Court to review.

The case arose when a woman and her husband sued the university for injuries the woman suffered when she fell at a university stadium. The couple was there to watch their teenage daughter’s soccer game. When the game was over, the woman went down the stairs to wait for her daughter. She stopped at an elevation, near a guardrail that separated the stands from the field. The gate’s latch had previously broken, but it was held shut with a padlock and chain. She leaned against the gate and it opened. She fell five feet to the field and hurt her rib and arm.

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Published on: May 3, 2015

Injuries on a Texas Bus

By Carabin Shaw

Buses are common carriers. If you are injured in a bus crash, you should be aware that usually their duty is higher to passengers than drivers of other vehicles. Although the duty is higher, liability is not automatic. In Mackey v. Midland-Odessa Transit, the defendant was a governmental entity that operated a public bus. The plaintiff was a representative of her sister’s estate. Her sister had died while a passenger on one of the defendant’s public buses.

In a plea to the jurisdiction, the defendant argued that it was immune from suit and that the plaintiff hadn’t shown that governmental immunity had been waived under the Texas Tort Claims Act. A plea to the jurisdiction is an assertion of immunity from suit due to the court’s lack of jurisdiction. The trial court granted the plea to the jurisdiction and dismissed the case.

The appellate court explained that sovereign immunity deprives a trial court of jurisdiction for lawsuits against governmental units unless there is consent to the suit. It found that the state had provided consent to be sued through Section 101.021 of the Texas Civil Practice & Remedies Code, which allows a governmental entity to be liable in a suit for personal injury or death proximately caused by an employee’s negligence in the scope of employment when the negligence arises from use of a motor-driven vehicle, the employee would be personally liable, and personal injury or death would, if the government were a private person, result in liability under Texas law.

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Published on: May 3, 2015

Proportionate Responsibility in Texas Work Accidents

By Carabin Shaw

In Hassan v. Rock, a plaintiff appealed from a judgment awarding him $212,136.64 in damages because he didn’t think the trial court should have reduced the award by his proportionate responsibility for the accident. The defendant had hired the plaintiff as a day laborer to clear brush out of an empty lot that belonged to the defendant’s friend. The defendant used a Bobcat loader, and the plaintiff crouched under the bucket. The bucket fell and hurt the plaintiff.

The plaintiff sued the defendant for negligence and gross negligence. The plaintiff objected to submitting proportionate responsibility questions to the jury, claiming that proportionate responsibility didn’t apply because the defendant was his employer but didn’t have workers’ compensation insurance as required under Tex. Lab. Code § 406.033(a)(1).

Nonetheless, the trial court submitted the questions related to the plaintiff’s responsibility for getting injured to the jury. The jury found that the defendant was 57% responsible and the plaintiff was 43% responsible. The plaintiff moved to disregard the jury’s answers to the proportionate responsibility questions. The trial court denied the motion and rendered a judgment reducing the plaintiff’s damages award by 43%. The plaintiff appealed.

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Published on: May 3, 2015

Negligent Supervision in Texas

By Carabin Shaw

In ExxonMOBIL Corporation v. Pagayon, the Texas Court of Appeals considered a case in which a man died after a fight between himself, his son, and an employee of the defendant at the defendant’s service station and convenience store. The defendant appealed a judgment in favor of the man’s wife, children, and estate on their wrongful death claims.

Pagayon and Cabulang were employees at a convenience station. They and Pagayon’s father had known each other before the employment. The son had conflicts with Cabulang at work and told both his manager and his father about them. The father phoned Cabulang, and they spoke heatedly about the conflict.

While working together, Cabulang cursed at Pagayon and in Pagayon’s view threatened him and his father. A coworker told the store manager, but the manager simply told the son to stay away from Cabulang. The father came to the store to pick up his son, and Cabulang started a fight with him, hitting him multiple times in the head and back. The father was taken to the hospital emergency room. He was moved to the ICU, and when they tried to wean him from the respirator, he was transferred to a long-term intensive care facility. The father died of respiratory failure, renal failure, and cardiac arrhythmia. The organ failure was caused by sepsis, which is an infection of the blood.

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Published on: March 26, 2015

Were Exemplary Damages Appropriate in Texas Forklift Accident Case?

By Carabin Shaw

Exemplary damages (also known as punitive damages) are unusual, but may be awarded in personal injury cases involving gross negligence. In contrast to compensatory damages such as lost wages, medical bills and pain and suffering, exemplary damages are meant to punish a defendant for egregious behavior. In 4Front Engineered Solutions, Inc. v. Rosales, the defendant appealed from a judgment for the plaintiff of over $10 million, including exemplary damages, in a personal injury lawsuit based on a forklift accident.

The defendant was a designer and manufacturer of equipment for loading docks and ran a warehouse in Texas. The warehouse manager hired an electrician to repair the illuminated business sign in the front of the warehouse. The electrician asked the plaintiff, also a licensed electrician, to help him to do this work. The warehouse manager allowed the first electrician to borrow a forklift to get the job done.

On the second day, the first electrician was working on the forklift, moving it back and forth so the plaintiff standing on a platform could reach the electrical connections. A forklift’s wheel rolled off the sidewalk. The forklift tipped and caused the plaintiff to fall 25 feet to the ground. He suffered injuries to his spinal cord, brain, hip and leg.

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Published on: March 16, 2015

Texas Court Affirms Judgment for Traumatic Brain Injury Plaintiff

By Carabin Shaw

In the recent case West Star Transportation Inc. v. Robison, a Texas appellate court considered a personal injury case in which the defendant appealed a judgment for the plaintiffs for damages totaling more than $5 million. The plaintiff had suffered a traumatic head injury after falling headfirst from a flatbed trailer that he was trying to cover in the shipping yard of the defendant, a company that was his employer. The defendant was a nonsubscriber under the Texas Workers’ Compensation Act.

The load was an uneven load that included crates of different heights, and it was 13 feet off the ground at its highest point. The defendant didn’t own the equipment needed to complete the task. A tarpaulin that weighed 150 pounds had to be placed at the highest point using a forklift. The plaintiff was also lifted to that point. The reason for the fall was unclear, but he fell while he was standing on the surface of a load, and because of the fall he suffered a traumatic brain injury.

The plaintiff and his wife sued, alleging that the defendant was negligent for failing to give the plaintiff a reasonably safe workplace. The plaintiffs offered to settle their claims to the limits of the defendant’s insurance policy via letters. The defendant tried to accept the settlement offer orally and via letter after the deadline passed. The plaintiffs believed the deadline had passed and rejected the offer in the letter. The defendant filed an amended answer and counterclaim, alleging that the case was settled.

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Published on: March 16, 2015

Expert Reports in Texas Medical Malpractice Lawsuits

By Carabin Shaw

In Columbia North Hills Hospital, Subsidiary LP v. Tucker, a defendant appealed the court’s denial of its motion to dismiss. The case arose when the plaintiff checked into the hospital with serious abdominal pain. Although she was discharged, she returned the same day and had to have a surgery. After surgery, she was transferred to a room with a note on her patient care plan saying that she had a high risk to fall. When she went to use the restroom three days later, she fell and a nurse found her on the restroom floor. She was discharged from the hospital, even though the injuries from the fall were serious, and she had to undergo surgeries to her back and neck because of them.

She sued the hospital and other defendants, alleging negligence and gross negligence. She attached a Nurse Dexter’s report to her petition. The defendants objected. She also served an expert report by Larry Kjeldgaard, but this report was late. She also amended her pleadings so that her suit would proceed only against the hospital.

The hospital moved to dismiss her case on the grounds that the Dexter report didn’t satisfy the legal requirements of § 74.351(a) for an expert report and that the other report was late. The trial judge sustained the defendant’s objections to the Dexter report but allowed the plaintiff to file a compliant report. She filed an amended pleading to which she attached reports from both experts.

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