Nursing Home Abuse - Baseluos Law Firm

Types of Economic Damages in Texas Wrongful Death & Survival Actions

Baseluos Law Firm — Wed, 07 Apr 2010 17:52:18 GMT

There are various types of losses a Texas personal injury attorney can recover for an injured claimant. In San Antonio wrongful death cases , for example, medical, funeral, and burial expenses can be recovered in a survival action brought by the executor of the estate. Medical and funeral expenses are also recoverable in wrongful death actions, but recovery is strictly limited to those expenses actually incurred by the beneficiaries. In an action for wrongful death, the beneficiary can recover medical expenses provided the beneficiary had a legal obligation to pay for those expenses. In addition, an estate can recover punitive damages in a survival action, but parents cannot recover exemplary / punitive damages for a child’s death. Any expenses must also be reasonable in order to have recovery. In a survival or wrongful death action, there is also recovery for pecuniary losses such as the value of the care, support, and services, a plaintiff would have received if the deceased individual had lived. There must be evidence the deceased family member provided such support and services. Expenses for psychological counseling also fall under the realm of pecuniary losses and may be recovered in wrongful death actions. When an adult child has died, the parents are entitled to pecuniary damages relating to care and maintenance that the parent would have received from the adult child if he had not died. /for example, in the Ledezma case, the jury awarded $215,000 in pecuniary losses to the mother of an adult child who had supported his family since the age of seven. Under the Texas Wrongful Death Act, the beneficiary may assert damages for loss of inheritance. The loss of inheritance damages are determined by estimating the amount the decedent would have left the beneficiaries if not for the premature death or accident. If for some reason, the deceased injured party would have outlived the beneficiary, then inheritance damages would be denied. There must also be enough evidence in the record to place a dollar figure on the likely estate value at the end of a normal life as well as the present value if the estate in order for such inheritance damages to be awarded. Wrongful death claimants and survival beneficiaries are also entitled to lost earnings. A loss of earnings capacity damages claim is not limited by the deceased’s salary prior to injury. For example, a plaintiff has been found entitled to loss of earnings capacity damages when the deceased was unemployed at the time of injury.

There is a distinction between loss of earnings capacity damages and loss of earnings damages. In contrast to loss of earnings capacity, to obtain loss of earnings damages, the wrongful death plaintiff must demonstrate with reasonable certainty that actual amount of lost past earnings. It must also be shown that the plaintiff who was killed had capacity to work prior to the injury and the injury seriously hurt that capacity. Moreover, any past employment that can illuminate what the plaintiff’s future earnings could have been can be introduced. Evidence of the weaknesses and degenerative nature that resulted from personal injury and plaintiff’s work-life expectancy are additional factors. Medical and funeral expenses, pecuniary losses, loss of inheritance, loss of earning capacity, and loss of earnings are some of the economic damages a Texas wrongful death lawyer will pursue for you in a San Antonio serious personal injury accident or malpractice claim.

Texas negligence experts in medical malpractice lawsuits

Baseluos Law Firm — Fri, 02 Apr 2010 05:02:18 GMT

Most Texas medical malpractice cases require experts to prove causation. There are exceptions where a jury does not need an expert to decide causation. Those medical malpractice cases are limited to those cases where a jury can use its own experience and common sense to determine causation. For example, a jury will not need an expert to establish a causal connection when a doctor inadvertently leaves a wire in a woman’s breast. Another example is an elderly plaintiff who sustained personal injury at a Texas nursing home after he fell while walking down a hall in the office and sustained serious brain injuries . The defendants moved to dismiss the case on the basis that the plaintiff failed to provide expert testimony. However, the Court denied the dismissal indicating that the medical provider’s failure to provide an escort or medical device to assist the plaintiff was within the realm of the jury’s common sense and general experience. Even the defendants’ expert testified that the plaintiff required an escort to prevent falling. In order for the court to admit expert testimony, the expert must be qualified in the particular area and the admitted facts must support the expert opinion. For example, on Texas negligence claims against a physician or hospital, the expert should be a doctor who can testify on the alleged departure from accepted standards of care. The same logic applies to Texas dental malpractice claims or Texas podiatrist malpractice claims . A nurse is generally not qualified to render an opinion on the medical causation of injury unless that opinion is used in conjunction with another doctor’s opinion.

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.

Texas Personal Injury Cases Update

Baseluos Law Firm — Mon, 15 Mar 2010 19:16:23 GMT

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.

San Antonio Texas Nursing Home Abuse and Medical Malpractice Cases Update

Baseluos Law Firm — Sun, 07 Feb 2010 21:01:11 GMT

There have been several San Antonio nursing home personal injuries which merit comment. The executrix of the estate of a San Antonio nursing home resident sued 2 doctors and the nursing home for medical malpractice. The alleged victim was a 72 year old woman who developed a staph infection and sepsis after her back surgery. The appellate division dismissed the case on the basis of an inadequate expert report. The Court specifically cited failure to link the nursing home’s failure to tell the physicians of drainage issues with the woman’s subsequent death from sepsis. In a Texas pharmaceutical drug injury and medical malpractice case, a woman sued Eli Lilly claiming that the company’s drug warnings were so defective as to contribute to his suicide. Texas law is instructive on this point. The plaintiff has to prove that the doctor would have changed their decision to prescribe a particular drug if the doctor was aware of an alternative drug warning. It is the pharmaceutical company’s duty to warn the doctors (known as learned intermediaries) as opposed to direct warnings to the consumers. Ultimately, doctors are aware of the risks of the drug and can make the consumer patient aware of those risks. The 5th Circuit did indicate that the read and heed presumption (i.e. the patient will follow a warning if one is given) was not applicable to failure to warn product liability cases against pharmaceutical companies involving a learned intermediary. Ultimately, the plaintiff failed to prove causation because he did not adequately show the doctor would have changed his mind given an alternative warning.

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.

Reliable Expert Testimony in Texas Personal Injury Cases

Baseluos Law Firm — Fri, 22 Jan 2010 04:41:39 GMT

In the late 1990s, the Texas Supreme Court indicated that the substance of an expert’s testimony must be considered, specifically the data the expert relies on to form his/her opinion. If the foundational data upon which the expert bases his opinion is unreliable, then the expert’s opinion will be considered unreliable.

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.

Texas and San Antonio Nursing Home Neglect Personal Injury Lawsuit

Baseluos Law Firm — Fri, 20 Mar 2009 01:06:48 GMT

Texas and the greater Southwest region has witnessed a spate of egregious nursing home neglect cases. Nursing homes know that the age of the victim will scare away many attorneys and they blatantly put dollars ahead of the well-being of the powerless.

A San Antonio Texas nursing home negligence attorney looks for certain key elements involved in the care of the elderly plaintiff including Stage III-IV pressure ulcers; symptoms of malnutrition and dehydration; fractures and spinal injuries from falls; and errors in dispensing medication.

The federal government has enacted strict regulations on nursing homes that demand compliance. Under the Nursing Home Reform Act , any facility receiving Medicare / Medicaid funds must tend to a resident’s ability to eat, bathe, and toilet. The resident must be properly cared for so as not to develop pressure sores, and they must be adequately supervised to prevent accidents.

The Texas Department of Aging and Disability Services provides assistance and mechanisms for lodging complaints concerning nursing home abuse.

A nursing home negligence case in San Antonio and greater Texas requires extensive document review and investigation by a variety of doctors, nurses, and nursing home administrators.