Is a spider bite like a rickety staircase or botched surgery?

If the ceiling leaked at Grandma's nursing home, dripping corrosive acid that burned her, would that be negligence for not fixing the building -- or more like giving her an overdose of medicine?

If a nursing home staffer slashed Grandma with a knife, would that be negligence for not keeping her safe -- or more like leaving a sponge inside her during surgery?

If a brown recluse spider bit Grandma while she was in her bed and she died, would that be negligence for not keeping the place bug-free -- or more like a fatal infection from a botched IV?

In Texas, a lethal spider bite in a nursing home isn't a matter of defective housekeeping, it's akin to medical malpractice. As a result, the home gets added legal protection against paying for harm to its residents.

That doesn't feel quite right.

But it's how the Texas Supreme Court recently interpreted a law that was designed to reduce frivolous medical malpractice suits.

And it means that a woman named Wilma Johnson won't get before a jury to argue that her sister Classie Mae Reed died from a brown recluse spider bite because the Omaha Healthcare Center in East Texas wasn't properly fumigated.

Reed died in March 2005, and courts at both the trial and appellate levels refused to throw out Johnson's negligence suit.

But the Supreme Court, after having the case for three years and not even holding oral arguments, ruled for the nursing home.

Omaha argued that the case falls under the law covering healthcare liability claims. In 2003, the Legislature overhauled the rules governing suits against healthcare providers to tackle what was described as a medical malpractice insurance crisis.

Anyone who sues a physician, nurse, hospital or other healthcare professional has 120 days to also file a credentialed expert's report that explains how the provider being sued breached the accepted standard of medical care. That seems like a reasonable requirement: If you can't find a qualified expert, you probably don't have a strong enough case.

Johnson didn't file an expert's report -- because she wasn't complaining about anyone's medical judgment. She claimed the home was unclean and that led to her sister's death. After all, Texas law requires nursing homes to have adequate pest control programs.

The 6th Court of Appeals in Texarkana said Johnson's claim was about living conditions, and an expert's report would be required only if it were about safety "directly related to healthcare."

But a 7-2 majority of Supreme Court justices read the law otherwise.

Healthcare "involves more than acts of physical care and medical diagnosis and treatment" and includes "any act performed or furnished" during a patient's confinement, Justice Phil Johnson wrote.

"Consistently interpreting statutory language according to its plain meaning and context, unless that interpretation yields an absurd or nonsensical result, honors the Legislature's intent and reduces confusion," he said.

But it sounded as though Justice Debra Lehrmann, a former Tarrant County family court judge, found the result absurd and nonsensical.

She wrote in dissent that the court reached "a result that is contrary to the Legislature's intent, belies common sense and contorts the role of experts in healthcare litigation."

She said a spider-bite claim was more like injury stemming from an unlocked window or a rickety staircase than from medical negligence or defective medical equipment.

Maybe Wilma Johnson wouldn't have persuaded a jury that Classie Mae Reed died from a spider bite that was preventable. The Supreme Court sent the case back for the trial judge to dismiss it and decide whether Johnson should pay the nursing home's legal fees.

But if everything that happens in nursing homes can be considered related to healthcare, then the homes always can hide behind high hurdles of the law, even if they're serving tainted meat, using cleaning solvents with poisonous fumes or leaving staircases dangerously in disrepair.

That's increasingly relevant as the population ages. Not that everyone wants to or should go around suing nursing homes, but without teeth to force improvements at slipshod facilities, the law is impotent to protect residents' safety.

It that's not what the Legislature intended, then lawmakers know how to correct it. But they don't meet for another two years.


source: Star Telegram (Campbell, 7/27)

Hot Coffee, a must-see documentary about the untruths of Tort Reform

HOT COFFEE examines the dangers of so-called “tort reform” and its threat to our civil justice system. Using the now-infamous legal battle over a spilled cup of McDonald’s coffee as a springboard, the film follows four families, including McDonald’s plaintiff Stella Liebeck and KBR/Halliburton plaintiff Jaime Leigh Jones, whose lives have been profoundly affected by their inability to access the courts, and examines the role of corporations and a complicit media in promoting “tort reform.”

HOT COFFEE is available on HBO’s On-Demand service. And, DVDs will be available in the fall. You can sign up to pre-order DVDs here.

Watch the HBO Promo:

Watch the trailer:

 

Rowlett Hospital Faces Suit by Woman for Negligent Care

Mashell Darden
(Photo: Nathan Hunsinger)

Because of what she calls negligent care, Mashell Darden says she now receives dialysis three days a week, has had two strokes, brain surgery, blood clots, liver damage, a partial hysterectomy and heart surgery.

The mother of four is on a waiting list for a kidney transplant because she says, she contracted a potentially deadly blood infection while waiting overnight at a hospital for doctors to remove a fetus that had died.

Nearly three years later, Darden is in the midst of a lawsuit against Lake Pointe Medical Center in Rowlett and several members of its medical staff. The complaint states that in the 16 hours Darden was at the hospital, doctors failed to properly examine her until she had contracted a blood infection called sepsis and it had progressed into septic shock, which is often fatal.



At the Cole Legal Group, our mission is to make our community safer by holding people accountable for breaking simple laws designed to protect us. David Cole, a Dallas/Ft. Worth and north Texas area personal injury lawyer, has a proven track record of obtaining substantial settlements and jury awards for people hurt by the negligence of another.

Let our experience, commitment and drive work to get you the money you deserve to rebuild your life.

Our commitment to you: We will not be out worked!



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source: The Dallas Morning News (NIELSEN, 06/27/2011)

Two dead in early morning 18-wheeler crash on I-12 in St. Tammany

NEW ORLEANS, LA - Two women died in a crash on Interstate 12 in St. Tammany Parish Friday morning after their SUV was rear-ended by an 18-wheeler, authorities said.

Anthony Hernandez, 34, was driving the truck westbound about three miles from the Louisiana 59 exit when he moved into the left-hand lane to pass another vehicle about 1:10 a.m., Trooper Nick Manale said. When Hernandez, of New Braunfels, Texas, tried to re-enter the right-hand lane he apparently did not notice a Ford Explorer traveling directly in his path, Manale said.

Hernandez slammed into the back of the SUV, which was driven by Desiree Hudson, 35, of Robert, Manale said. The crash caused the car to spin off the highway before striking several trees on the side of the road, he said.

Hudson and her passenger, 54-year-old Colleen Randall of Covington, were both pronounced dead on the scene by the St. Tammany Parish Coroner's Office. Both women were wearing their seatbelts at the time of the crash, Manale said.

Hernandez, who was also wearing his seatbelt, was not seriously injured in the crash, Manale said. He submitted to a chemical test that showed no sign of alcohol in his system, he said.

Hernandez was booked into the St. Tammany Parish jail in Covington with two counts of negligent homicide and one count of careless driving.


source: www.nola.com (Adelson, 6/24)

Supreme Court Blocks Huge Class-Action Suit Against Wal-Mart

Women and minorities who think they are underpaid will find it nearly impossible to band together to sue employers for discrimination under a Supreme Court ruling against 1.5 million female Wal-Mart employees in the most important job-bias case in a decade. Only if there is proof a company has a policy of paying less to women or minorities can the employees get together in a class-action suit, the court said in an opinion Monday by Justice Antonin Scalia. Statistics showing that a company's female workers earn far less and get fewer promotions than men will not suffice, the court said. The suit against Wal-Mart Stores Inc. has been seen as a key test of whether civil rights lawyers, armed with computer-generated data on wages, could force the nation's largest employer to stand trial and face billions of dollars in potential liability. Had they won against Wal-Mart, other similar suits against nationwide retailers were in the offing.

by David G. Savage, LA Times  06/21/2011

“Loser Pays” Means Families Pay

Here we go again.  Lobbyists in Austin are once again trying to shield their corporate clients by socializing the cost when they cause needless death, injury, or financial devastation.  This time they are pushing HB 274, an un-American scheme that threatens families and small businesses with having to pay the bloated legal costs of big insurance companies and multi-national corporations.  Act Now to stop this dangerous legislation.

After 20+ years of pro-defendant legal changes, passing legislation that will make it even more difficult for Texans with valid claims to access the legal system is at best detrimental to public accountability and at worst unconstitutional.The bottom line is that their proposals are designed to intimidate families and small business owners into foregoing the legal accountability process, immunizing polluters, insurance companies, and other big corporate defendants from responsibility.

These schemes most acutely impact middle class families who could be financially devastated not only if they lose a valid lawsuit, but even if they just don’t win big enough.  And, the proposal before lawmakers puts small businesses at a particular disadvantage when facing a big corporation in court.

If this bill passes, defendants will be in complete control, leaving the family or business owner at the whim of the accused wrongdoer.  Also, under their gerry-rigged formula, even if you win a verdict, you could still be forced to pay the defendant’s legal costs.  In other words, you can win and still lose.
Despite the lobbyists’ rhetorical misdirections, this issue has nothing to do with penalizing people who file meritless lawsuits.  We already have stiff penalties on the books for that, including the payment of attorneys’ fees.  Their real goal is to erase the notion of corporate responsibility.  They want to erect so many obstacles to justice that we just throw up our hands and let corporate criminals like BP off the hook.

HB 274 would allow insurance companies even more latitude to deny and underpay valid claims.  For instance, a family injured in an auto accident would face an impossible choice if the at-fault driver’s insurance company denied a valid claim.  The family would face the threat of paying the bloated legal costs of the insurance company’s legions of lawyers or accepting whatever low-ball offer the insurer makes.

Florida’s experience with a scheme similar to the one being debated by our legislature was so bad that lawmakers there repealed it just five years later.  As the Duke Law Journal notes, proponents are “diplomatically silent about Florida’s unsuccessful experience.”  A former president of the nation’s oldest association of civil defense lawyers put it bluntly: “They tried it in Florida, and it was a disaster.”

Known as the “British Rule,” this concept was roundly rejected by our nation’s founders more than two centuries ago because it guts individual liberty.  In recent years, however, Britain and other countries have begun to rethink the wisdom of this system.  In fact, the British Ministry of Justice recently commissioned a report that recommends that Britain scrap its current system in favor of the “American Rule” in which both parties are responsible for their own legal costs.  The Economist magazine proclaimed that “every citizen in the land would, at last, have a fair opportunity to have a case heard in the nation’s courts.”

The bottom line is that Texas families already face significant barriers to accessing the constitutional promise of a right to Trial by Jury.  Adopting a scheme that has a dubious history and is designed to force families and small businesses with valid claims to weigh the possibility of paying the legal costs of multi-national corporations is not in the best interests of public safety, public justice, or public policy.

Take action now.  Tell your State Representative to stand up for Texas families and our constitutional liberties by rejecting HB 274.


source: Texas Watch (May 4, 2011)