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.


I Can Understand Buying a Car Without A/C, But Not Without Turn Signals

This article may appear to be about the annoying people who change lanes and make turns without the courtesy and safety of using their turn signals. It’s not. It is about safety devices, designs and equipment that are found on consumer products.

Turn signals, seat belts, fire retardant children’™s pajamas, safety locks on guns and rifles, and shields and other protective covers are just a few of the safety devices, designs and equipment that consumers enjoy because of decades of litigation by trial lawyers on behalf of innocent victims. These safety devices, designs and equipment actually work when they are not tampered with, removed, circumvented or altered. So, if you buy a car with law-mandated safety equipment such as seat belts, why would you not use them? If you bought a table saw with a law mandated safety guard over the sharp, spinning blades, why would you remove? If you bought a gun with a safety lock, why would you not use it until ready to fire the gun? It is hard to understand, but many people do ignore safety devices, designs and equipment. Worse yet, these safety devices, designs and equipment are often tampered with, removed, circumvented or altered on a regular basis. Not only are all consumer protections lost at that point, but the ability to bring a lawsuit to recover for injuries and damages is severely impaired if not completely destroyed by such conduct. The consumer must respect not ignore – the warnings and safety devices, designs and equipment that are there for their protection.

Prescription drugs have safety devices, designs and equipment, too. Prescription drugs are dangerous and do have side effects, and need these safety devices, designs and equipment, called warnings. Warnings are contained in the œpackage insert that comes with the prescription either from the company or the pharmacists. Warnings work only when they are accurate, complete and adequate. Further, accurate, complete and adequate warnings work only when strictly followed: The drug must be taken as prescribed by the physician, and a prescription drug prescribed for one person must not be taken by someone else.

The drug companies must accurately and completely disclose all of a prescription drug’s dangerous side effects so the warnings accurately, completely and adequately warn the patient. Drug companies must also constantly update the warnings as new information is obtained. More times than not, however, the drug companies are not inclined to give accurate, complete and adequate warnings because more numerous and severe the warnings, the fewer prescriptions will be written for that drug. The prescribing physician will find a better, safer alternative drug that is equally effective without the same risks.

Litigation against the drug companies is based on inaccurate, incomplete and inadequate warnings, as well as manufacturing and design defects. The prescribing physician has the responsibility to discuss a prescription drug’s side effects with the patient, as well as the risk of those side effects and the benefits of the drug. It is only when the warnings that the physician has access to do not include all known dangerous side effects that a case exists against the drug companies. After all, we know all drugs have side effects. We as the patient have the absolute right to know what those side effects are so we can have that risk/benefit discussion with the physician and make the decision whether to take the drug. As a patient, we have the right to know what the drug company knows about their prescription drugs before we take it. After we take the dangerous drug and are injured by it, the questions becomes what did they know and when did they know it.

You can’t claim ignorance of the drug’s warnings any more than you can claim you bought the car without turn signals or that the seat belt is too uncomfortable to wear. All are safety devices that are there for your safety.