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Tort Reform€ in Texas: Implementing the Corporate Immunity Agenda

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From Alex Winslow, Texas Watch, Consumer Protection, Corporate accountability, Citizen Advocacy

Over the last decade, Texas Governor Rick Perry has presided over a series of radical legislative proposals that, under the guise of so-called tort reform, reward those who needlessly endanger our communities at the expense of families and small business owners. The Texas Watch Foundation’s latest report, Tort Reform in Texas: Implementing the Corporate Immunity Agenda, details the impact these restrictions have had on the rights of patients, families, workers, homeowners, senior citizens, policyholders, and small business owners.

Beginning with the dramatic, sweeping changes in 2003 that severely restricted the rights of patients and nursing home residents, as well as the crony capitalism behind the creation of the Texas Residential Construction Commission, and ending with the so-called œloser pays proposals of 2011, the last decade has been marked by a series of dangerous restrictions on bedrock legal and constitutional protections.

Today, Texas is place that would be unrecognizable to the framers of our state and federal constitutions who believed the right to a trial by jury was fundamental.

You can read this report at www.texaswatch.org.

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THE OUTRAGEOUS AND SAD FACTS ABOUT EMERGENCY ROOM MEDICAL ERRORS

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FACT #1: BAILEY & GALYEN receives 30 40 calls each month from potential new clients wanting to sue an emergency room doctor and hospital for their negligence.

FACT #2: Most of those potential new cases do actually involve clear negligence by the emergency room doctor and hospital.

FACT #3: Even with clear negligence by the emergency room doctor and hospital, you cannot pursue or file that case because the emergency room doctor and hospital are protected by Texas law.

The Texas legislature in 2007 amended the laws that deal with medical malpractice cases. Texas Civil Practice and Remedies Code Sec. 74.151, entitled Liability For Emergency Care, now states that a person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent. The legislature has raised the level of proof required to file a lawsuit to the highest possible degree of negligence: Wilfull or wanton negligence, which means the medical error must have been intentional. That’s right. To hold the emergency room doctor and/or the emergency room staff accountable for any serious injury or death, you must be able to show that the treatment or lack of treatment by emergency room doctor and/or the emergency room staff totally disregarded or was totally indifferent to the known consequences which the patient suffered. It requires proof of actual or deliberate intention to harm the patient, or at a minimum an absolute and complete indifference to or conscious disregard for the patient’™s safety. That standard is insurmountable, and it slams shut the courthouse door on the innocent victims.

Not being able to file a civil suit when a loved one has suffered serious complications, injuries or death from emergency room errors is a hard pill to swallow. How did this happen, you might ask? It is the result of the collision between political agenda of tort reform and patient safety where political agenda won.

The problem is that tort reform advocates never believe that they will be the innocent victim of emergency room medical malpractice. Further, they all believe that if they are, their claim will be meritorious and different from all those frivolous medical malpractice claims they heard so much about from tort reform advocates. The fact is that emergency room medical malpractice happens very frequently, and those who thought they would never find themselves in the innocent victim’™s shoes and who supported the popular political agenda of tort reform do not like not being unable to hold accountable those responsible for these serious injuries and deaths. Put another way, Texas law gives emergency room physicians and hospitals absolute and complete immunity.

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What Does It Take to WIN Your Slip and Fall Lawsuit?

Dallas, Personal Injury, Texas , , , , , , , , , ,


The Texas Supreme Court has not been a friend of the slip and fall victim. Over the last decade the Texas higher courts have handed down multiple decisions making it increasingly difficult for slip and fall victims to obtain any recovery for their injuries and losses. Many victims have even lost their right to a jury trial due to No Evidence Summary Judgment rulings that kill the lawsuit prior to trial, denying slip and fall victims even an opportunity for justice. This is why you cannot fight this battle alone! You must find an attorney who understands what it takes to overcome these obstacles and WIN this battle! You cannot afford to trust your lawsuit to just any attorney. Choosing the wrong representative could be very costly!

To prevail in a premises liability (slip and fall) claim, you must prove:

  1. the owner or operator of the premises knew or should have known of the condition/substance that caused the injury
  2. the condition posed an unreasonable risk of harm
  3. the owner did not exercise reasonable care to reduce or eliminate the risk; and
  4. the owner’s failure to use such care caused or contributed to your injuries

Often, the most difficult element of your slip and fall claim to prove is that the owner of the premises knew or should have known of the dangerous condition or substance that caused the injury. This proof can be established in one of three ways:

  1. the owner or an employee created the harmful condition (i.e., an employee left water on the floor)
  2. the owner or an employee saw or was told about the harmful condition (i.e., a customer told an employee there was a spill); or
  3. a showing that the substance or condition was present for so long that it should have been discovered through reasonable inspection

If you become injured in a slip and fall incident, taking the following steps may prove invaluable in winning your lawsuit:

  1. Gather witness information from both employees and customers who may have knowledge pertaining to the incident
  2. Determine whether there is a video camera that may have recorded the area where the incident occurred and request that recording
  3. Observe the area, looking for the probable source/cause of the condition that caused the injury
  4. Listen to what the employees and witnesses are saying. Did anyone mention that the condition was there before for example, I was about to clean that or I told you to fix that? Any employee statement that indicates someone knew the condition was there before you fell is EXTREMELY helpful.
  5. Contact an attorney who is an expert in representing victims of slip and falls immediately.
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FOSAMAX: CURE OR CAUSE?

Personal Injury, Pharmaceutical


Merck’s Fosamax is an oral bisphosphonate, and is prescribed to prevent or treat osteoporosis in postmenopausal women. The prior problem prompting the FDA requiring Merck to make stronger warnings related to Fosamax’s causing death and decay of the jaw bones. The current problem requiring FDA intervention for stronger warnings relates the drug’s causing atypical subtrochanteric femur fractures fractures in the bone just below the hip joint.

These atypical femur fractures can occur anywhere in the femur, from just below the hip to above the knee. The fractures can be completely through the femur bone or just hairline fractures, and may occur in both legs at the same time. Many patients report pain in the affected area, usually presenting as dull, aching thigh pain, weeks to months before a complete fracture occurs. While atypical fractures are very uncommon, the incidence is increased with long term exposure to Merck’s bisphosphonate Fosamax.

The truly disturbing thing about this very dangerous drug is that it was FDA approved, advertised and marketed to prevent bone weakening and breakage by slowing or inhibiting the loss of bone mass. Known as Osteoporosis, this bone weakening disease causes very weak bones that break easily. Women are five times more likely to get osteoporosis than men. Physicians know that osteoporosis is a natural part of the aging process and that there is no way to stop or cure osteoporosis. Physicians know that their patients can slow down this process by taking enough calcium, vitamin D, exercising, not smoking and limiting alcohol intake to no more than one glass per day.

Merck, however, convinced the FDA that it had made a drug that prevented this natural part of the aging process. Slow the natural aging process of loss of bone mass? Amazing discovery if true! It was too good to be true. Merck’™s Fosamax actually made the femur brittle and more susceptible to hairline fractures and breaks than the natural aging process itself.

The question regarding serious injuries from dangerous drugs like Fosamax is always the same: What did Merck know about the risk of these serious femur fracture injuries from Fosamax and how long has Merck known it? This answer to this question comes only through litigation.

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