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.

In Hawley, plaintiff sued a hospital for failure to timely inform her of a colon cancer diagnosis known as “Duke’s C” cancer. By the time she learned of the diagnosis a year later, she had developed an inoperable liver tumor. The defendant doctors and hospital argued that there was no evidence to prove that Hawley had a greater than 50% chance of survival with a Duke’s C diagnosis. However, Hawley’s medical providers indicated that with a Duke’s C diagnosis, she had a 60-65% chance for survival as opposed to a Duke’s D diagnosis in which she had a 0-30% chance of survival. The jury’s verdict in favor of the plaintiff was upheld. If you have been a victim of misdiagnosis or medical negligence that has caused a Texas wrongful death or personal injury, contact a wrongful death San Antonio and greater Texas lawyer today!

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 another medical negligence case arising in Corpus Christi, a woman’s legs were burned and scarred when a nurse allegedly committed medical negligence with a laser. The patient also sued the doctor, claiming vicarious liability for the nurse’s negligence. The court did not consider the suit a health care liability claim per se, although it did classify the laser as a regulated medical device, which can represent a form of San Antonio product liability negligence . Finally, in another Dallas claim, the Court ruled that claims against a plastic surgeon and the plastic surgery company after a negligent face lift procedure was considered to be a health care liability claim and not a claim under the Texas Deceptive Trade Practices Act (DTPA) . The plaintiff had to satisfy the expert report requirement for medical malpractice claims. Causation and damages were an essential part of the claims and the finding of negligence against the plastic surgery company was dependent on a medical malpractice finding as to the surgeon. If you have been a victim of medical malpractice or suffered injury from a medical device or pharmaceutical drug, contact a San Antonio and greater Texas personal injury attorney immediately.

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.

In Borders, the Court excluded the testimony of plaintiff’s emergency physician expert testimony on ER treatment of a head injury which led to respiratory arrest. In the Texas wrongful death suit, the Court indicated that the ER expert was not competent to offer opinions that would counter the neurosurgeon experts for the defense. In another case, parents sued on behalf of their child who contracted AIDS from a tainted blood transfusion. The parents sued for failure to screen the blood. Although plaintiff’s expert held a degree in various disciplines including public health, he was not a trained doctor and did not consider himself an expert in blood banking or hematology. The plaintiff’s expert simply could not testify as to the standard of care in the blood bank industry. A plaintiff’s expert must have the knowledge, skill, experience, training, or education to give an expert opinion not only on the duty and standard of care, but also as to specific causation. Otherwise, many San Antonio and greater Texas personal injury cases run the risk of dismissal with prejudice.

Very often, in Texas pharmaceutical injuries or Texas wrongful death cases from exposures to lethal substances, the Court looks at epidemiological studies of the substance’s effect on a population. The study must demonstrate that the risk of disease or injury for the population of people exposed to the substance is twice the risk of the population contracting the same disease who have not been exposed to the substance.

To illustrate, if a disease naturally occurs in 6 out of 1000 people when they are not exposed to a certain drug or substance, then a study would have to show that more than 12 out of 1000 exposed to the drug or substance would suffer the disease. Another option is that the epidemiological study must show significant results at a 95% confidence level.

The Supreme Court detailed additional criteria known as the Bradford-Hill criteria before the court can draw any conclusion about causation on the basis of studies. On top of that, the plaintiff must demonstrate he or she is similar to the study members, including proof of exposure to the same substance, a dose level similar to the persons injured in the study, that the exposure occurred before the injury onset, and that the timing of the onset of injury is similar to the study members. The classic example is epidemiological studies for Texas benzene exposure cases and leukemia onset, which can be as long as 30 years after the exposure. The type of injury suffered by the plaintiff must obviously be the same as the study that shows the statistically significant risk.

One classic recent case occurred with the San Antonio Vioxx injury lawsuit against Merck. Upon being given Vioxx, the plaintiff suffered and died from a heart attack. The plaintiffs filed a Texas product liability claim against Merck, claiming design defect and marketing defects in Vioxx which caused a wrongful death. Merck moved to dismiss, arguing that the plaintiffs failed to introduce into evidence at least 2 statistically significant studies showing that the risk of a heart attack was twice as great with a person taking Vioxx. The plaintiff’s experts demonstrated that before Vioxx, the plaintiff had a stable cardiac status. After taking Vioxx, the plaintiff developed two fresh clots in 2 different arteries, a type of problem caused by Vioxx.

The bottom line is that in San Antonio personal injury cases , it is critical the expert has the qualifications and credentials to give testimony to overcome a motion for dismissal. Moreover, the expert’s knowledge, skill, experience, training, and education must be in line with the specific case and causation questions.

Non-economic damages compensate an injured plaintiff for physical pain and suffering, mental or emotional pain, loss of consortium (the services of a spouse), disfigurement, physical impairment, and other types of non-monetary losses.

Exemplary damages, also known as punitive damages, are those damages which are often assessed against defendants for reckless or malicious behavior. Juries award these types of damages for the defendants’ behavior. Exemplary damages are not included in the cap for non-economic damages.

The limit of civil liability for non-economic damages for a physician or health care provider is $250,000. The civil liability of healthcare institutions such as hospitals is $250,000 for non-economic damages. Registered nurses fall under the realm of healthcare providers and would be subject to a $250,000 cap.

Even if there are multiple number of plaintiffs suing under the death of the single individual, the plaintiffs count only as on claimant for purposes of the cap. With multiple health care institutions, the most a medical malpractice plaintiff can recover in non-economic damages from personal injury is $750,000.

In Texas wrongful death cases , the limit for civil liability on a health care liability claim is $500,000 including exemplary damages. The cap does not include medical or hospital expenses incurred in the treatment of the injury. The cap applies regardless of the number of plaintiffs. In addition, the liability of any insurer for a healthcare defendant is limited to the cap, circumventing the Stowers doctrine which deals with insurer liability.

Those plaintiffs who are not seeking recovery for a wrongful death health care liability claim can expect to recover economic damages.

A Texas wrongful death attorney must know how to navigate costs to maximize recovery to a plaintiff given caps on non-economic and exemplary damages.

To counter the defense experts, it is often a wise tactic to ask the defense to list the medical periodicals from which they draw their conclusion. A Texas medical malpractice attorney will often contact the editors of these texts to determine if they are willing to serve as Plaintiff’s experts to counter the defense experts who incorrectly rely upon their texts.

Too often, medical malpractice cases are birth injury cases, which can return multi-million dollar verdicts / settlements. We often hear that despite the protests of the American College of Obstetrics and Gynecology , cerebral palsy is often times the result of doctor neglect or error.

An obstetrician will violate an applicable standard of care by failing to employ a Cesarean Section rather than vaginal delivery. The doctor may incorrectly read fetal monitor strips or unnecessarily create head trauma to the baby using a harmful forceps or vacuum extraction delivery. The medical provider may often contribute to unnecessarily tearing the nerves and muscles of the baby’s shoulder known as “dystocia”.

A San Antonio and greater Texas medical malpractice firm will employ trained doctors to study the medical records for evidence of violation of the duty of care.

A San Antonio personal injury attorney will paint a clear picture of your damages by engaging experts to perform very focused evaluations including:
– Hand / Upper Extremity Functional Capacity Evaluations;
– Daily Living Skills tests;
– Back Exams for spinal and neck injuries;
– Work and Vocational Assessments;
– Ergonomic Evaluations; and Occupational Therapy.

The key for a jury is to see the link between the medical evidence provided by doctors and the vocational findings that impact a person’s employability. It is not enough for an attorney to argue to the jury or judge that you suffered a major back injury. A strong Texas personal injury attorney will use experts to demonstrate the effect of the injury on a person’s daily performance and how simple daily tasks have become incredibly difficult. This technique truly demonstrates the tremendous impact of the injury in a way juries can relate to.

For victims of negligence , your attorney may use Occupational Therapists who perform Functional Capacity Evaluations (FCEs) to assess a person’s work capacities. FCEs are used with vocational evaluations to provide performance-based information that is critical to Workers’ Compensation and Social Security disability claimants.