Rule 702 of the Texas Rules of Evidence governs the admission of expert testimony. First the expert must be qualified. Second, his proposed testimony must have scientific or technical foundation. The trial court has the discretion to apply such standards to determine the admission of expert testimony. In Robinson, a Texas product liability case , the plaintiff sued a pesticide manufacturer for a product that damaged their pecan trees. Initially, despite the plaintiff’s expert credentials, the plaintiff’s expert was not allowed to testify due to alleged unreliable testimony. The Texas Supreme Court in response adopted the Daubert standard indicating that both relevancy and reliability were needed for admissibility of an expert’s testimony. The Court cited such factors as the extent of scientific testing of the expert’s theory, the amount of subjective expert interpretation, peer review of the theory, potential rate of error, acceptance of the theory by the scientific community, and non-judicial uses of the theory. As you can see, a Texas personal injury lawsuit begins and ends with the quality of the expert. The expert’s theory must be relevant and reliable. If you can overcome the hurdles involved and get the expert’s testimony admitted, a Texas medical malpractice or San Antonio wrongful death attorney can recover what you deserve.

A medical malpractice plaintiff in San Antonio and greater Texas must prove that their injuries were “proximately caused” by the negligence of the medical care provider. There are two elements of proximate cause : Cause in Fact (also known as Substantial Factor) and Foreseeability. The jury must decide whether by a preponderance of the evidence, the act of negligence was a substantial factor in causing the harm. Usually the evidence must meet the “degree of reasonable medical probability” that the doctor’s negligence caused the injury. The injured plaintiff does not have to exclude every possible cause. To prove cause in fact or substantial factor, a San Antonio Texas personal injury attorney must prove that had it not been for the doctor’s act or omission, the serious injury would not have occurred based upon reasonable medical probability. Mere speculation, conjecture, or possibility does not meet the standard of reasonable medical probability. The next issue in a Texas medical malpractice case is foreseeability. This term does not mean that the particular accident or injury could be predicted – it simply means that the harm that occurred could reasonably have been anticipated. For example, if a patient needs an escort for safety and the escort has to be able to prevent a patient from falling, then it is foreseeable that an injured plaintiff has a risk of falling unless an escort is provided. The jury applies a practical inquiry to determine whether an injury was foreseeable. Whether you have been a victim of nursing home abuse or medical malpractice, contact a San Antonio and greater Texas injury lawyer today.

In 2009, there were several seminal cases in the area of Texas medical malpractice and Texas nursing home abuse litigation . In Dallas, the patient brought an action against both the physician and the physician’s assistant (PA) for their failure to follow up on a mass detected on a mammogram. It is important to note that the expert report on behalf of the plaintiff has to address the specific standard of care for both the doctor and the PA. In a Texas dental malpractice case out of Corpus Christi, the dentist allowed her assistant to remove the crown and grind the plaintiff’s teeth. The dentist was alleged to have committed malpractice by giving work to a non-dentist and keeping unsuitable dental records. In a Houston Texas Gynecology malpractice case, a woman experienced grave difficulties during childbirth and suffered serious personal injuries during childbirth. Under Texas law, the employer of the obstetrician has 21 days to object to the plaintiff’s expert report. By failing to object within the statutory timeframe, the employer waived his right to object to the report. Also, the injured mother’s claims against the obstetrician’s employer under respondeat superior and Texas Professional Association Act did not require a separate report to discuss negligence of the employer. In a Texas nursing home abuse case , the plaintiff sued on behalf of a family member who allegedly had been abandoned during Hurricane Rita leading to her death from dehydration and malnutrition. The Court ruled that such claims were considered Texas health care liability claims and required an expert report.

If you or a family member has been the victim of nursing home negligence a breach in the standard of care by a medical professional, you owe it to yourself to contact a San Antonio and greater Texas nursing home and medical injury lawyer today.

In a case involving Baylor Medical Center, plaintiff alleged medical malpractice when the emergency doctors failed to discover a cerebral hemorrhage which led to permanent brain damage. The Court accepted the report filed by the plaintiff’s expert as to causation and indicated the report did not have to eliminate every possible cause of injury. In another case involving Baylor College of Medicine, plaintiff sustained injuries during a knee surgery and sued for medical malpractice. The court accepted the expert report of the orthopedic surgeon as to causation. Medical malpractice cases are harder than ever but you will never know unless you consult with a San Antonio and greater Texas medical malpractice attorney as soon as possible.

In a Fort Worth Texas medical malpractice case a family sued an EMT doctor when the biopsy by the physician allegedly struck the husband’s skull and affected his central nervous system. The court held that the suit against the hospital for the physician’s malpractice did not survive because there was no evidence of an employment relationship , agency relationship or actual control over the EMT doctor by the hospital. Finally, a midwife and her religious organization were sued for complications arising out of childbirth. The Court deemed a midwife a Texas health care provider and the plaintiff could assert a Texas health care liability claim. Texas nursing home abuse is inexcusable and despicable. The elderly have rights but because there is no voice to defend them, nursing homes and their corporate structures believe they can take advantage. If you or a loved on have suffered nursing home personal injury in San Antonio and greater Texas , contact a San Antonio personal injury lawyer today.

If the seller has properly demonstrated the presumption, then it is up to the Texas personal injury lawyer to demonstrate that the standard / regulation was not strong enough to safeguard the public from unreasonable risk of injury or damage. The other option is to prove that the manufacturer, either before or after he commenced marketing the product, kept information or misrepresented information to the federal government. Such withholding or misrepresentation of information would have altered the federal government’s creation of a proper safety standard.

In almost every Texas products liability case, the defense attorney premises his defense on his client’s compliance with government standards. Counsel will claim that ultimately the government gave the seller a de facto seal of approval. In response, the Texas personal injury lawyer will counter that the federal government’s standard has always been a minimum floor and is often outdated and incapable of creating safety.

Another tactic is to attack how the manufacturer communicated with the government about the adequacy of a safety regulation. Such a tactic will open up a tremendous amount of discovery about not only the product itself, but exactly what the manufacturer told the government about how to construct its standard. It is a somewhat confusing wording on the legislation, because it almost puts the manufacturer in a type of watchdog role on the government’s standards.

Under the bill, there is no exception to the presumption of no liability if the manufacturer misleads or omits key information about its products under the applicable regulations. This key provision allows plaintiff’s counsel to obtain all communication between the manufacturer and government as to all information the manufacturer gave the government as well as any communication related to the government’s regulation in general. You may recall that during the Vioxx litigation, there were allegations that Merck withheld key research data from the government that reflected an increased incident of serious cardiac injury.

CPRC 82.008(c) also creates a presumption of no liability if the formulation, labeling, and design of the products had to acquire a pre-market licensing or approval from the federal government. Provided the federal government gave pre-market licensing / approval of the product’s design, risks, and benefits, then there would be a presumption of no liability.

A Texas serious personal injury attorney would attack this presumption by demonstrating that the standards of pre-market licensing could not have protected society from unreasonable risk of serious personal injury. Another option is to show the manufacturer withheld information from the government that was material to the product’s performance and caused the plaintiff’s injury. Withholding information must be relevant to the product’s performance and causally related so that you may be successful in a Texas product liability lawsuit.

There are several ways a Texas medical device injury lawyer can overcome the presumption of no liability, First, he can show that the manufacturer deceived the FDA by omitting or distorting required information needed for pre-market government endorsement and licensing. Any deception in the withholding or distortion of information must be material to the Texas serious personal injury claim and the element of causation is present.

Another way to overcome the presumption of no liability is to demonstrate continued sale of the drug or medical device after the FDA mandated market removal or no longer endorsed the product.

Another way to overcome the presumption of no liability is to demonstrate “off label” use. An off label use occurs when doctors and drug companies begin using a pharmaceutical to treat a problem for which it did not originally receive government approval. If in fact, there was off label use, the presumption of no liability disappears. There are elements of proof associated with off label use. The injured plaintiff must prove that the healthcare provider and / or drug company promoted, advertised, or prescribed the off label use; the injured party used the product as it had been recommended, promoted, advertised, or prescribed; and there was a causal connection between the injury and the recommendations, promotion, advertisement, or prescription of the product.

Another way to overcome the presumption of no liability given compliance with the FDA requirements is that the defendant, either before or after pre-market government approval / licensing, bribed a public official in violation of 18 U.S.C. Section 201 and such conduct precipitated FDA warnings of the product to be substandard.

There has been some controversy over whether a State District Court judge can determine if material information was withheld from the FDA so that plaintiffs can overcome the presumption of no liability. One district court judge granted summary judgment in a Texas Vioxx case on the basis that the FDA is the only entity that can make a determination about whether a manufacturer was deceptive in the warnings information it provided. There have been several follow up cases which have criticized the decision.