I read blogs for information I need or perspectives I value. I read them for inspiration. Sometimes I read them for a good dose of rage that inspires me to work for a cause or give money to a candidate. The kind of blog I hope to write will do all of these things. [click to continue…]
Traveling through South Texas used to mean long drives down one or more of the lonely roads that criss-cross the region like State Hwy 83 and State Hwy 281. Motorists could often go for hours without seeing another vehicle. But over the past decade, urban development and the discovery of oil reserves in the Eagle Ford Shale, which stretches eastward for more than 400 miles from the Mexican border near Webb County and Maverick County, have created an array of new dangers for motorists.
The recent boom of rural development across South Texas, spanning from Laredo to Corpus Christi up to San Antonio and down to the Rio Grande Valley, is putting more and more commercial and industrial vehicles on public highways — and in the way of Texas drivers.
Eighteen-wheelers, tractor-trailers, dump trucks, cement trucks, oilfield trucks, fracking fluid carriers, tankers, cranes, hazardous chemical transportation trucks — heavy-duty vehicles like these are a recipe for disaster when they come into contact with the common car or pickup truck.
According to the federal Centers for Disease Control and Prevention, highway crashes were to blame for almost 33% of the deaths of oilfield workers from 2003 to 2008 — and many, many of those involved typical passenger vehicles.
And with about 1,000 trucks and other large-scale transportation vehicles required to service a single well, oilfield production has made a casualty of many public roads across Texas. The Texas Transportation Department estimates it will take more than $2 billion dollars to repair the damage these trucks have caused.
If edge drop-offs, pot-holes, dangerous merging lanes, and other unexpected hazards on the road weren’t enough, Texas drivers are also endangered by the drivers of commercial and industrial vehicles themselves.
The San Antonio Express-News reported that many drivers feel pressured into taking 20-hour shifts on the road, a position that leaves them utterly fatigued and at risk of colliding with other drivers.
Hitting the Brakes
Garcia & Karam have spent decades standing up to injustice in the courtroom. Have you been involved in a crash or accident with an 18-wheeler or oil truck? Don’t be intimidated by large oil and transport companies — Garcia & Karam has the experience and the reputation you need to defend your rights before a judge or jury. We will work with you one-on-one to build a case that can win against their high-paid attorneys. Call us today for more information on how we can reverse the damage they’ve done to you.
A vehicle that’s been “lifted” can pose a special danger to the occupants of other cars on the road. A collision with one of these “monster truck” type vehicles can turn a minor collision into a serious and devastating one. Such was the case for our client, Desiree Mendoza.
Desiree was driving her 1999 Ford Mustang down a county road when she was struck by a Dodge Ram 2500 truck after the truck driver ran a stop sign. The truck was equipped with a five-inch “lift kit” and 37- inch over sized tires that raised the vehicle’s front bumper 9-10 inches higher than the truck’s stock configuration.
When the truck struck the car, the bumper “overrode” the hood and driver’s side door resulting in the intrusion of the bumper into the passenger compartment as shown below.
As a result of the intrusion, Desiree’s head came into contact with the steel bumper (instead of her airbag) as her head was moving forward during the collision. The impact caused Desiree to suffer a traumatic brain injury. Although her condition has improved somewhat over time, her injury is permanent and she will suffer from cognitive deficits for the rest of her life.
Manufacturers of these lift kits are protected b y a powerful lobbying organization, the Specialty Equipment Manufacturers Association (SEMA). Although a few states have imposed strict bumper height requirements, most do not. Texas has enacted regulation governing bumper heights, but it is so weak it may as well not exist. It basically allows most trucks to be modified without violating the lift law. In fact, the truck involved in this case would be legal to drive on the public roads of Texas.
One of our experts labeled these “lifted vehicles” the most dangerous vehicles on the road today. He was featured on Dateline in 1996 advocating for the regulation of these vehicles for use on public roadways. Based on his research and knowledge, he said that lifted trucks are 11 times more likely to cause a fatality than any other vehicle on the road.
The case involving Desiree Mendoza settled out of court for a confidential amount. If you have a case involving a lifted truck, or if you or a family member is involved in a collision with one of these vehicles, please call us immediately. We have the knowledge, expertise and financial resources available to prosecute your case.
More than 70 percent of the drugs prescribed in the U.S. today are generic versions of brand-name medicines. These drugs are cheaper and considered identical to the original except for one critical component: their warning labels may be years behind reports of problems.
How is that again? According to the Food and Drug Administration, and acknowledged recently in a U.S. Supreme court ruling, generic drug makers are prohibited from updating dosing and side-effect information on labels even if they become aware of problems.
They must wait until the brand-name drug maker – who is filling fewer prescriptions and presumably seeing fewer side-effect complaints – updates its labeling information, according to FDA regulations. For some people, this might mean the difference between life, severe complications or even death.
Such was the case for two women whose lawsuits against generic drug manufacturers ended up in the U.S. Supreme Court.
The lawsuits involved the drug metoclopramide, brand-name Reglan. In one suit, Julie Demahy, claimed generic manufacturer Actavis should have warned her of the risks of developing a neurological movement disorder from the drug, prescribed for heartburn, nausea and vomiting.
In another case, Gladys Mensing sued the three generic drug makers in federal court after she developed the same disorder after taking generic versions of Reglan.
The FDA ordered that specific warnings about the disorder be added to both Reglan and metroclopramide labels in 2009, but this was years after both women began taking metroclopramide, the lawsuits claimed.
After hearing the arguments, the Supreme Court ruled that generic drug manufacturers cannot be sued for inadequate or false warning information because the FDA prohibits them from updating labeling information even if they were aware the information was inadequate. Obviously, the ruling was a big win for generic drug manufacturers, who don’t have to foot the bill for tracking adverse interactions.
This ruling in effect lets most of the drugs being prescribed these days off the hook legally for carrying the latest drug safety information. This presents individual consumers with a damning dilemma: spring for the higher-priced brand name drugs which are under a legal obligation to report adverse effect claims to the FDA, which can then prompt alerts and updates to labeling information, or go for the generic and cross their fingers.
At the public policy level, the FDA regulation and Supreme Court ruling denies consumer access to the only system set up in this country to hold wrong-doers accountable: the judicial system.
Threat of legal action for ignoring, delaying or obscuring the results of safety tests for medical drugs motivates drug companies to provide consumers with accurate, up-to-date drug information. Take away that obligation for one major group of drug manufacturers and you eliminate a major level of accountability.
Fighting back, the national consumer group Public Citizen has petitioned the FDA to change its regulations to allow generic drug makers to update prescription labels as soon as information becomes available, and to report to the FDA when any adverse effects from their drugs comes to their attention.
Consumers have a right to be outraged that most of their prescribed drugs lack basic protections.
Some “best” claims about Texas are just plain wrong. Among the most recent of these claims being touted at a national level is that Texas is the “best” example of the benefits that come from medical malpractice tort reform.
I’m referring to presidential candidate Gov. Rick Perry’s campaign message that limiting an injured patient’s ability to sue for damages when severely harmed by medical negligence is adding more doctors to under-served areas of the state, including the Rio Grande Valley.
According to Perry, curbing consumer legal rights in 2003, has attracted an additional 21,000 doctors to the state, lured by the prospect that “they can do what they love and not be sued.”
He went on tell attendees at a campaign stop in New Hampshire in August, “Some 30 counties that didn’t have an emergency room doc have one today. Counties along the Rio Grande, where women were having to travel for miles and miles outside of the county to see an ob-gyn for prenatal care, now have that care.”
The 21,000 number has been debunked by facts before. But now the national media is getting into the debate, rating Perry’s comment “false.”
According to the independent fact checkers of PoliFact New Hampshire 2010, Perry staffers used inflated data from the Texas Medical Association, which tracks the number of medical licenses, instead of data from the Texas Medical Board, which looks at the actual number of doctors practicing in the state. According to the medical board, there are about 13,000 more doctors in the state than in 2003, not 21,000.
Most of these doctors, according to health care analysts, moved to Texas for the same reason that doctors tend to locate anywhere, to follow population growth. From 2002 to 2010, the population of Texas rose 24 percent, compared to the rate of doctors in the state which rose 24 percent, according to the Texas Alliance for Patient Access, which is funded by healthcare providers. That translates to 1,608 doctors over and above what the state could normally expect.
In fact, according to the Texas Academy of Family Physicians, Texas recruited twice as many physicians in the years before “tort reform,” largely because of laws passed in the 1990s that required insurance companies to pay doctors promptly.
And almost all the doctors that have moved to the state in the last nine years have settled around the larger cities, not in the small towns and rural areas that desperately need medical services, according to the academy.
That’s a far cry from Perry’s claims and just adds to the perception, underscored by facts, that Texas is all gas and no beans when it comes to the topic of health care reform.
Bad accidents happen to good people every day. Sometimes these accidents are caused by other people’s recklessness, like driving while drunk. Or by greed, like when a company fails to install or maintain safety equipment, or encourage employees to shrug off safety rules to make a job go faster, and a worker gets hurt or killed.
In these cases, the person or company responsible for the accident is said to be guilty of negligence, which is a civil crime, and can be prosecuted in a court of law.
A Maryland family recently was awarded $2 million in a negligence law suit that involved a street construction site. According to the lawsuit, Xiufeng Wang and his wife, Yunshu Li, werewalking home from lunch in a closed traffic lane when a dump truck backed over them. Li, 74, died from her injuries at the scene and Wang, 78 at the time, suffered a fractured back and wrist.
The suit accused the construction company, among others, of failing to provide a safe alternative route for pedestrians around the construction site. The company, which was working on a fire station, had removed a portion of the sidewalk, thus forcing walkers onto the street where heavy equipment was in use.
Negligence is generally defined in the law as a failure to exercise the care that an ordinary prudent person would exercise. This can mean doing something that a prudent person would not do, or failing to do something that a prudent person would do. Obviously in the dump truck case, the construction company should have foreseen the need to provide pedestrians with a safe route around the site while work was in progress.
The burden of proving negligence in a court case falls on the plaintiff, or the person bringing the suit. The plaintiff must show generally that:
- The defendant showed a lack of duty of care, that is, the defendant reasonably should have foreseen that the defendant’s conduct could have injured the plaintiff.
- The defendant’s conduct fell below a certain standard, such as it violated government rules or regulations, or professional codes of behavior.
- The defendant caused the harm. This simply states that there must be proof by the plaintiff that carelessness on the behalf of the defendant caused the plaintiff to suffer damage.
- That there was a reasonable likelihood that the defendant’s action could have resulted in harm.
If you or someone you know has an accident that results in serious injury or extended job loss, you may or may not have anyone to blame. But if it’s possible that a third-party contributed to the accident, you should talk to a personal injury attorney about the possibility that negligence played a part. If this is the case, you may be entitled to compensation to help you pay medical bills or to make up for lost pay checks.
Apparently it’s no secret among doctors that if you’ve been disciplined in other states for repeated accusations of negligence, Texas is the place to set up shop.
In the first place, the Texas Medical Board doesn’t check the complaint history of doctors applying for licenses. In the second place, Texas lawmakers have made it so difficult to sue doctors for malpractice that many, many valid cases never make it to court.
The result is Texas is the go-to destination for doctors fleeing disciplinary actions in other states.
Take the case of neurosurgeon Stefan Konasiewicz. He left Minnesota and moved his practice to Corpus Christi in 1997, leaving behind him nine medical malpractice lawsuits and a public reprimand by the Minnesota Board of Medical Practice. Some of the lawsuits involved patient deaths.
Konasiewicz is currently on trial back in Minnesota on one of the malpractice suits. A story in the Duluth News Tribune first disclosed his flight to Texas and the fact that the Texas Medical Board is still allowing him to practice despite a pile of evidence that he is unqualified.
TMB spokesperson Leigh Hopper said the board is supposed to review a doctor’s malpractice and disciplinary action record when it renews a doctor’s license every two years, but that the board relies on a doctor self-disclosing these actions, according to the newspaper story.
“If the doctor doesn’t want to tell us and is not truthful when he renews his license, then we’re not going to find out about it, either,” she said.
This, despite the fact that all state medical boards have full access to the National Practitioner Data Bank, which lists malpractice cases and disciplinary actions taken against doctors. Hopper said that because the Data Bank charges for queries, it would cost the state of Texas too much — she estimated $160,000 a year — to check on every doctor licensed in the state.
That’s $160,000 to protect every man, woman and child in Texas –nearly 25 million people –against doctors who have been repeatedly sued for negligence in other states. In 2008, the TMB’s operating budget was $9.4 million.
The Texas Legislature has made it clear that protecting doctors against patients is much more important than protecting patients against doctors. In 2003, lawmakers passed laws that make it almost impossible for most patients to bring a lawsuit against a dangerous physician.
The combination of poor medical board oversight and harsh anti-consumer laws make Texas a sweet deal for bad doctors. And a bitter reality for the rest of us.
Concerned about liver toxicity, the makers of Extra Strength Tylenol have lowered the maximum daily dose instructions from eight pills a day to six. McNeil health Care, a Johnson & Johnson company, also announced it plans to lower the maximum daily dose for Regular Strength Tylenol and other adult acetaminophen-containing products beginning in 2012.
The announcement underscores that over-the-counter medicines are some of the most dangerous drugs around. Overdosing on over-the-counter medicines send some 150,000 people to the hospital every year.
About 1,000 non-prescription medications are linked to liver toxicity, which kills 2,000 Americans a year. One of those is acetaminophen, which is reported to be the most common cause of drug-induced liver damage in the United States.
Why do people tend to overdose on this drug? One of the reasons is that most people don’t realize the number of drugs that contain acetaminophen, making it hard to judge how much is being taken. For example, other common drugs that contain acetaminophen include Sudafed, NyQuil, Excedrin, Anacin, Midol, Theraflu, Alka-Seltzer.
Another factor is that television and magazine advertising push popular over-the-counter drugs to make it seem like they are safe.
Even consumers who carefully read labels can be misled, as acetaminophen is frequently listed under the abbreviation “APAP,” which is short for N-acetyl-p-aminophenol, the chemical name acetaminophen.
Two years ago, an advisory panel to the U.S. Food and Drug Administration (FDA) also recommended that the FDA place a “black box” warning on prescription medications that combine acetaminophen with another drug. These would include pain medications that combine acetaminophen with hydrocodone (Vicodin), oxycodone (Percocet), or codeine (Tylenol 3). That recommendation has not been adopted.
However, in January, the FDA mandated all drug makers to include no more than 325 mg of acetaminophen in each tablet or capsule of combination pain meds. That change will be phased in over three years.
The FDA also is looking into adding dosing instructions to acetaminophen-containing medications given to children younger than 2. The revised instructions for Extra Strength Tylenol will appear on packages in the fall.
So be safe and read dosing instructions even for over-the-counter drugs, especially if they contain acetaminophen.
If you watch TV shows about crime or lawyers, you’ve heard the term “statute of limitations.” It’s the time limit the civil justice system sets on how long after a crime has been committed, or come to light, that a lawsuit can be filed. Some serious crimes, including murder, don’t have this limitation, but most civil and criminal lawsuits do.
One reason statutes of limitations were established is because, over time, evidence can be corrupted or fade, records can be lost, and witnesses’ memories’ fade. Another reason is the belief that the injured party has a responsibility to quickly bring about charges so that the process can begin.
For anyone thinking about filing a lawsuit, the sooner he or she contacts an attorney, the better. The laws vary depending on the type of harm committed. Each state also sets its own limitations for when a suit may be filed. Meeting the standards set by statutes of limitations is important to the success of any lawsuit.
Some other things to keep in mind:
- Some limitations periods begin on the date when the cause of action occurs and is obvious, such as severe injuries after a car crash.
- Other limitations periods begin when the plaintiff had reason to know the harm, rather than at the time of the original event. This distinction is significant in cases such as medical malpractice, in which the medical error may not become evident until years later.
- Product liability claims have different time limits, depending on when the plaintiff became aware of harm or should have been aware of the harm.
- Sometimes a person may be harmed, but not realize that someone else was responsible until much later. In this case, the time for filing a law suit begins when the discovery is made.
As you can see, there are a lot of considerations to be made about whether a case meets the criteria set forth by statutes of limitations. Most plaintiffs’ attorneys, including my firm, are happy to meet with clients at no charge to go over what happened and determine if there is a case. If there is a case, my firm will represent clients at no fee. But a lawsuit must be pursued quickly in order to obtain the best evidence and to meet statutes of limitations.
Symptoms of a failed hip implant include severe pain, swelling in the hip, groin and/or lower back and difficulty walking and standing.
When Judy Walters of Marshall, Texas experienced these systems, she discovered that her hip implant was an ASR XL Acetabular System, which had been recalled in August 2010, because of a higher than average failure rate.
She is one of about 1,000 hip implant patients who have filed lawsuits against Johnson & Johnson, which manufactured the system, along with the DePuy ASR XL Acetabular System, which was also recalled. About 90,000 of the systems were sold before the recall.
Walters’ lawsuit states that since her surgeries she has suffered from cracking of her bones, metal shavings in muscles, muscle damage, intense pain and problems standing and sitting.
According to the lawsuit, there is a high failure rate of the medical device due to the design of the Acetabular metal cup which is shallower than other similar devices. The cups include a beveled edge which reduces the surface arc that contacts with the femoral head.
According to a story in the Wall Street Journal, Johnson & Johnson could be facing $1 billion in payouts to patients who received the implants, which reportedly are prone to failing within five years.
The manufacturers have acknowledged that data so far has shown that about 12% to 13% of these hips will fail within five years. However that number is expected to rise as people who received the implants continue to be monitored by their doctors.
This is another example of faulty medical devices being rushed to market before they are adequately tested.
Lawsuits over the recalled hip implants continue to be filed in state and federal courts throughout the United States, and it is likely that many more cases will be brought by individuals who received one of the defective hip replacements.
Metal-on-metal hip replacements, which use cobalt and chromium in their construction, account for about one-third of the 250,000 hip replacements performed each year in the United States. However, in recent years, concerns over problems with metal-on-metal hip replacements have been growing.
The Federal Food and Drug Administration is investigating these concerns, which center around toxic metal particles that may enter the blood stream. Because the metal ball and the metal cup slide against each other during walking or running, some tiny metal particles may wear off of the device and enter into the space around the implant. Some of the metal ions from the metal implant or from the metal particles may even get into the bloodstream. This can result in metal poisoning, also known as metallosis. This may result in soft tissue damage, inflammatory reactions, bone loss, genetic damage, asceptic fibrosis, local necrosis or other problems that may lead to the need for a risky hip revision surgery.
Device manufacturers tried to stem the tide of lawsuits over the device early on by offering to pay out-of-pocket medical expenses for victims. However, this kind of settlement would not pay for lost job income or other non-financial losses such as pain and suffering. For that reason, if you are one of the thousands of people who had this hip implant and you begin to experience problems, you should talk to an attorney before you sign any papers related to any offers of compensation.
Table saw makers are on the hot seat for not responding to the rising number of table saw accidents with better safety features. They should be. Table saw accidents now number 40,000 annually in the U.S., including 4,000 amputations. This number has risen 80% over the last decade, according to the Consumer Product Safety Commission.
The technology currently exists that can stop a table saw blade the instant it senses flesh. It’s called StopSaw. (Watch a demo of the StopSaw in action). But manufacturers say the cost of adding this technology, or something similar, is too high. They’ve also argued before the CPSC that using the technology might encourage consumers to engage in ”risky behavior.” Huh?
Saws now on the market are equipped only with flimsy plastic guards shielding the blade, and because they interfere with the work of the saw, many people remove them. If that isn’t risky, I don’t know what is. Making these saws safer would lessen the risk, not add to it.
According to Sally Greenberg, executive director of the National Consumers League, design of table saws hasn’t changed in 50 years, but because use of them is up, injuries have skyrocketed.
Stronger safety regulations for table saws were proposed several years ago, but they have languished before the CPC, probably due to manufacturer opposition. But the National Consumers League recently made headway when it held a press conference in Washington along with people who have been seriously injured by the saws.
Putting faces to the statistics appears to have helped. CPC Chairman Inez Tenenbaum told the Wall Street Journal she will consider tougher safety rules for saws over manufacturers’ objections.
“The safety standard for table saws needs to be strengthened,” she said. “I have reached out to the industry, but I am prepared to support the start of federal rule making if that is what is needed to prevent these life-altering injuries,” she added.
It’s about time. The high cost of losing the full use of hand, not to mention emergency care, far outweighs what consumers would have to pay for a safer saw. I imagine most consumers would be happy to pay extra not to lose a finger or a hand.