Recently Drs. Hwang and Hun concluded studies of senior citizens who switched from traditional warfarin to the blood thinner rivaroxaban (pharmaceutical name for Xarelto). The researchers discovered the patients were at increased risk of vitreous hemorrhage or eye bleeds. In June 2015, a leading medical journal, JAMA Ophthalmology published their research detailing xarelto side effects of eye bleed injuries shortly after transitioning from Warfarin to Xarelto.

Scientists and professors from John Hopkins published a study in the April 2015 issue of BMJ (originally known as the British Medical Journal) in which they investigated the risk of gastrointestinal bleeding associated with anticoagulants. The researchers concluded that there could be a “more than twofold higher risk of bleeding with rivaroxaban compared with warfarin.”

Bayer AG and Janssen Pharmaceuticals (a subsidiary of Johnson & Johnson) marketed Xarelto as a one time daily (1x per day) medication. The idea of a once daily dosage was done to appeal to consumers and lure them away from the competitor manufacturers of Pradaxa and Eliquis. Yet studies have confirmed that the intensity of Xarelto’s anticoagulant properties largely decreases over the course of the day, leaving Xarelto users in serious danger of internal bleeding , uncontrolled bleeding , and hemorrhages . The defendant manufacturers absolutely never warned the prescribing doctors over the drop in blood thinner effectiveness, forming a large basis of “efficacy claims” in the federal courts.

Another largely unsound and deceptive business practice of the manufacturer defendants was to market Xarelto as being better than Warfarin due to their claims that a routine blood test was unnecessary for Xarelto users as compared to warfarin users. These claims have now undergone major scrutiny as it has been demonstrated that xarelto bleedout incidents would have been seriously diminished had blood monitoring taken place. In fact, Xarelto manufacturers had actually developed a blood testing device to use in conjunction with Xarelto but chose not to actively push that device for fear it would discredit their prior claims of no blood monitoring and diminish profits. Downplaying or out rightly rejecting the need for blood monitoring is a major part of the case against the manufacturers for failure to warn which has led to xarelto fatalities and serious side effects .

In our prior blog entry on the learned intermediary doctrine , we discussed the key element of whether the prescribing information given to the doctor adequately allowed medical providers to weigh the risks and benefits of prescribing Xarelto. A strong argument can be made that in fact prescribers were seriously misinformed about the effectiveness of rivaroxaban and xarelto side effects.

Baseluos Law Firm is offering free consultations for anyone in the United States who has suffered a severe bleeding event, gastrointestinal bleeding, cerebral hemorrhaging, or even death from Xarelto.

The type of contact needed to prove assault can be direct or indirect. Indirect contact examples can be a police officer who crashes his patrol car into the plaintiff’s car or a defendant who shoots a plaintiff with a gun. To prove injury, a San Antonio personal injury lawyer must demonstrate the plaintiff suffered some pain, illness, or impairment due to the contact per Texas Penal Code Section 1.07(a)(8). The type of contact must be greater than mere offensive touching. In a civil action for assault, the plaintiff can recover actual damages including damages for physical pain, mental anguish, medical care, loss of earning capacity, physical impairment, and disfigurement. The plaintiff can also recover exemplary or punitive damages. Plaintiff can also recover prejudgment and postjudgment interest as well as court costs. Generally, attorney fees are not recoverable in an assault action. There is a 2 year statute of limitations in Texas civil assault claims regardless of whether there is an ongoing criminal investigation / trial. The statute of limitations for sexual assault is 5 years. The clock begins running when the assault occurs. There are various defenses to a claim for assault damages, including consent to the defendant’s conduct and self defense provided the use of deadly force is used to defend against unlawful deadly force. The defendant does not have a duty to retreat if he had a right to be at the location, did not provoke the plaintiff, and was not engaged in criminal activity. A defendant can assert the defense of justified force to protect a third party or protect his property.

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.

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!

In San Antonio and greater Texas, there have been several key personal injury cases in the area of premises liability in 2009. In one case, a guest at a condominium severed his finger while sitting in a pool-side chair. The court held there was no evidence that the condo association had actual or constructive knowledge of the broken weld in the chair. A San Antonio personal injury attorney can aggressively pursue evidence of constructive or actual knowledge in premises liability cases. In a case against the City of San Antonio alleging benzene exposure from a nearby closed municipal landfill, the Texas Supreme Court found there was no expert evidence as to the level of benzene in the plaintiff’s daughter. There were also questions concerning the association between the mother’s exposure to benzene and the daughter’s leukemia in utero. Oftentimes, benzene lawsuits in Texas hinge on the quality and strength of expert opinions on causation. In another case, a contractor sued for personal injuries against the San Antonio property owner when he fell through the roof while trying to repair an air conditioning unit. The court denied the property owner’s motion for summary judgment, because the plaintiff’s claim arose from the condition of the roof, not the air conditioner.

In another case out of Corpus Christi, the estate and family of a deceased inmate brought a Texas wrongful death action against a private correctional facility after the inmate was murdered by two inmates. Allegedly, the prison guards did nothing to stop the attack and the prison wardens laughed. $47.5 million was awarded in actual and punitive damages. The court held there was sufficient evidence to show negligence, and it supported the trial court’s spoliation instruction concerning the destruction of the prison’s surveillance tapes.

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.

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.

For seriously injured Texas citizens, they may be able to recover damages for pain and suffering in San Antonio Texas auto accident lawsuits . In a wrongful death action, the surviving spouse, children, and parents of the deceased can recover mental anguish damages. Mental anguish damages are those damages that include a mental feeling of pain, such as those that emanate from grief, disappointment, shame, despair, and public humiliation.

In order to recover for mental anguish, a San Antonio personal injury lawyer must demonstrate that the plaintiff suffered a high degree of mental pain and distress that goes above normal worry, anxiety or embarrassment. Texas personal injury law does not require a showing of physical injury to recover mental anguish damages. There is no way to objectively measure mental anguish damages, and the jury has a great deal of discretion in the process. The plaintiff needs to prove to the jury the nature of the mental anguish, its duration, and its severity. The plaintiff must demonstrate a significant disruption in his daily routine as a result.

Future mental anguish damages may be recovered upon a showing that there is reasonable probability there will be future mental anguish. Those plaintiffs with pre-existing emotional conditions can still recover mental anguish damages, although the defendant may argue that the mental anguish suffered by the plaintiff is due to pre-existing conditions.

Whether your family has suffered a Texas wrongful death or serious personal injury, it is incumbent on you to reach out to a San Antonio and greater Texas personal injury attorney as soon as possible.

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.

The ultimate question in such a situation is as follows: Is the police officer or the Texas county municipality responsible for his conduct liable for a Texas wrongful death or personal injury caused by a vehicle being pursued by the police ?

The answer is … it depends. For example, in Draper vs. Los Angeles, the court ruled that while the police pursuit may have contributed to the reckless driving of a fleeing individual, the officers did not have a duty to allow him to escape. In addition, the court ruled that there was no requirement on the part of officers to warn other drivers to keep out of the way, and there was no evidence that the police were trying to force the fleeing individual to the curb.

In Pagels vs. San Francisco, the court ruled that the police had a duty to operate their vehicles with due care, and it made no difference whether the pursuit was close or near at the time of the collision with the other vehicle.

In contrast, in Myers vs. Town of Harrison, the widow of a taxi driver who was killed by a fleeing driver chased by the police, filed suit on behalf of her husband’s estate. The pursued vehicle driver had been in a minor accident just prior to the chase. The court ruled that evidence of wet weather and road conditions over the course of the route of pursuit and the incredibly high speeds involved backed up the claim that that the police acted negligently. It did not matter that the police later determined after the accident that the vehicle had been stolen.

There are certain elements that go into a determination of whether a police pursuit is negligent where the fleeing driver’s reckless driving causes a San Antonio auto or truck accident .

– How long was the length of the high-speed chase?
– What were the road conditions?
– What was the time of day of pursuit?
– Was the driver of the pursued car driving in a reckless manner and endangering the public before the police began to chase him, creating a situation where the police had to act to protect the public safety?
– What was the proximity of the nearest police vehicle in pursuit just prior to the collision?
– What were the speeds of the vehicles involved in the pursuit?
– Was the police officer negligent in his conduct of the stop and pursuit? (Example: the officer allows the suspect to leave the car ajar and engine running at the time of the stop and left him unrestrained, allowing him to escape.)
– Did the police flash and sound their sirens during the course of the pursuit so as to alert innocent drivers / pedestrians?
– Did the police violate their own department’s pursuit policy?

The ultimate question in which these factors play a role in answering is whether the police should have abandoned the chase out of consideration of safety to the public.

In our next blog, we will discuss some additional cases in which the police and the governing municipality were in fact found negligent for an accident caused by a fleeing driver during a police chase.

A negligent police chase in San Antonio and greater Texas can occur whether the police impacted your vehicle or acted negligently so as to indirectly cause another driver to injure you. Whether you have been affected in a personal injury car accident or a San Antonio wrongful death trucking accident, contact a San Antonio personal injury lawyer without delay.

Imagine that your child is severely burned when the fumes from an overturned gas can burst into flames. Why does this happen ? Could it be the flames of the nearby gas water heater ? Each year, this scenario plays out multiple times in San Antonio and throughout Texas and the United States. Believe it or not, these injuries are preventable and often enough, the water heater manufacturer, the gasoline can maker, and even the natural gas company may be held accountable for negligence. It is imperative to consult with a San Antonio and greater Texas personal injury attorney immediately in such cases.

Even more disturbing is the higher incidence of accidental explosions from gas leaks. Because natural gas is colorless and odorless, a chemical malodorant must be added so that a person can smell the gas. Equipment called “odorant pots” inject the malodorant into the distribution lines of the natural gas.

Generally, an investigation of accidents involving natural gas will turn up records that demonstrate improper maintenance of the odorant pots or no levels of malodorant in the pots. In addition, the odorant may not work properly due to oxidation in the lines, creating a potential case against the manufacturer of the odorant. Finally, a Texas natural gas supplier who regularly inspects an injured party’s appliances and piping may be negligent for failing to detect potential leaks.

If you or a loved one has been the victim of a gasoline spill or natural gas explosion, you should contact a San Antonio and greater Texas personal injury lawyer immediately as these cases are complex and require rapid preservation of evidence.

Many Texas residents do not know that swimming pool injuries often occur due to the negligence of the swimming pool owner. For example, perhaps the owner fails to properly mark the depth of the pool. In some cases, the owner may have failed to install a gate to keep small children out of the area of the pool. What about temporary swimming pools which often lead to injury as well ? We often hear about people diving into pools where the water depth has not been properly labeled or where water depth is incorrectly tagged (i.e. the water depth is shallower than marked).

In addition, owners have to be wary of structures from where a person can dive into a swimming pool from a height that can cause paralysis or death. Negligence actions by an experienced San Antonio and greater Texas personal injury lawyer can help you achieve justice when a home owner does not safeguard their swimming pool.