Patients Rights to Sue Doctors For Malpractice Is Being Challenged | Dallas, Texas Personal Injury Attorney Blog
While the Texas Supreme Court considers two very similar cases (Walters v. Cleveland Regional Medical Center, and Methodist Healthcare System v. Rankin) involving medical malpractice of doctors, nurses and hospitals for leaving sponges inside a patient, the Texas Attorney General Greg Abbott has filed a brief with the Texas Supreme Court urging the Court to dismiss the lawsuit filed by Emmalene Rankin. Emmalene Rankin discovered a surgical sponge lodged against her colon 10 years and eight months after her hysterectomy.
The two Supreme Court cases belong to a special class of medical malpractice claims known as “sponge cases” – cases where foreign objects are improperly left inside the patient following a surgical procedure. Unlike many lawsuits about mis-diagnoses or mistreatment, in sponge cases there is no question that a medical mistake was made and usually no question about who was responsible. As a result, the doctors and hospitals involved in these cases are very likely to be held responsible if they cannot get the Court to dismiss the claims for technical reasons.
Emmalene Rankin’s Case:
In 1995, Emmalene Rankin had a hysterectomy at Southwest Texas Methodist Hospital in San Antonio. Ten years and eight months later, after pain sent her to a succession of doctors, a surgeon finally discovered the cause of her medical problems, an old surgical sponge that had been left inside her from her 1995 surgery was lodged in her abdomen.
Rankin filed a lawsuit against the hospital and two doctors, but the judge dismissed the lawsuit for violating the statute of repose, enacted in 2003 by the Texas legislature as part of “tort reform” legislation designed to lower medical and insurance costs by reducing the number of malpractice lawsuits and limiting the size of malpractice awards. According to the statute of repose enacted in 2003, “all claims must be brought within 10 years or they are time barred.” The Court of Appeals re-instated the lawsuit last year ruling that the statute of repose violated the Texas Constitution’s “Open Courts” provision. The Court of Appeals ruled that while “the Legislature is certainly entitled to set a period of time within which claims must be brought, but it may not deny a plaintiff a reasonable opportunity to discover the alleged wrong and bring suit.”
Attorneys for the hospital and doctors being sued claim that the legislature intended to limit the time period that these claims can be brought. However, Rankin’s lawyers point out that the intent of the legislature is irrelevant if the law violates the Constitution. The Texas Constitution trumps legislative power, patients must be given a chance to discover their injury before losing their constitutional right to access the court system, he argued.
This issue points out the issue on our legal system that the Constitution is the supreme law of the land, and the legislature does not have the power to enact laws that violate the Constitution. On other tort reform issues, the insurance companies and doctors’ lobbies realized that the tort reform issues presented a constitutional problem so they brought the issue to the voters of the State of Texas by asking the voters to approve a constitutional amendment which enabled the legislature to enact the tort reform measures that limited damage awards.
Tangie Walters’ Case:
Tangie Walters case is also a sponge case. In 1995, after giving birth to her child, Tangie Walters had a tubal ligation to prevent future pregnancies. Following the surgery, Mrs. Walters report abdominal pain that nurses at Cleveland Regional Medical Center dismissed as gas pains. In addition, Dr. Keith Spooner indicated that abdominal cramps were caused by uterine contractions from breast feeding, prompting Walters to bottle-feed her child. Over the next 9½ years, Walters visited several doctors to treat chronic abdominal pain and other ailments – bladder and lymph node infections, vaginal bleeding, pneumonia-like symptoms and fatigue. In 2005, a surgeon finally discovered the cause of her problems. The doctor found a sponge lodged against her small intestine. When these sponges and gauzes are left inside a patient after surgery, they can damage organs and produce inflammations, abscesses or a fibrous buildup that can be mistaken for a tumor.
Walters sued Spooner, the hospital and a nurse, but a Houston-area trial court dismissed the lawsuit for violating the statute of limitations. Walters appealed, arguing that the two-year time limit violated the Texas Constitution’s open courts provision – which guarantees access to the legal system for those with a valid claim – because she did not have a legitimate chance to discover the cause of her chronic illnesses. The Court of Appeals dismissed the lawsuit and blamed Mrs. Walters for failing to diligently investigate the cause of her pain. Although the pain presented a reasonable opportunity to discover the sponge before the legal deadline, the court said, Walters waited two years and three months to begin seeing a succession of doctors.
“Pain itself can be an indicator of injury,” the court ruled.
Each year, scores of lawsuits against medical professionals are dismissed because the Court finds that the patient did not bring the lawsuit in a timely manner. Often, such as in Mrs. Walters’ case, the issue is whether the patient should have discovered the problem sooner and brought the lawsuit in a more timely manner. These issues are extremely difficult and complex, and greatly favor the medical professionals as patients do not have the ability and resources to diagnose themselves, and even the medical professionals they see for their problems often cannot determine the source of the problem for an extended period of time. Then, even when the problem is located, the procedural legal hurdles that have been put in place that are designed to discourage lawsuits from being filed against medical professionals take a substantial amount of time to complete before the attorney can even decide if a lawsuit is appropriate.
Richard Sheehy a lawyer for one of the hospitals involved in these two cases argues that patients should not be given an opportunity to discover the wrong-doing of medical professionals and to hold them accountable for their actions by urging the Supreme Court to create an absolute two-year limit on all medical malpractice lawsuits, whether or not the injury could be discovered before the time limit passed. “I certainly believe this court may decide that … the Legislature may impose a strict two-year statute of limitations, and ‘we’re sorry that it may cause problems for a limited number of people, but we believe the legislative intent and public policy (benefits) of the two-year statute outweighs the problems that it might cause.”
In the end, these should be cases about providing the Constitutional guarantees to citizens of our state, but the political forces including the efforts of the Texas Attorney General are obviously at play in these matters as there is no explanation as to what the State’s interest is to justify why the Texas Attorney General would try to get involved to lobby for doctors and hospitals in a private lawsuit. The concern about political influence is very real when examining the track record of the Texas Supreme Court over the past few years in protecting patient’s and consumer’s rights against big business, corporate defendants, and medical professionals.
Class Action Lawsuits Against Credit Card Companies Filed | Dallas, Texas Personal Injury Attorney Blog
A Rhode Island woman is suing Citibank, claiming the financial giant is trying to squeeze money out of its credit-card customers in advance of changes in federal law due to take place in February 2010. In July 2009, Citibank notified Murphy that it was raising the variable annual percentage rate on her card to 29.99 percent, despite that her account was in good standing and that her original credit agreement does not expire until April 30, 2010. The lawsuit filed in U.S. District Court earlier this week by Providence lawyer Peter N. Wasylyk on behalf of Portsmouth resident Michol K. Murphy states that Citibank has violated the terms of her credit-card agreement by jacking up the annual percentage rate on her account without cause.
Meanwhile a lawsuit against Citizens Financial Group claims that ATM withdrawals and debit transactions are a trap into which unwary customers fall.
Following an uproar about the questionable actions of credit card companies and banks, the Credit Card Accountability, Responsibility, and Disclosure Act was passed in May 2009 to protect consumers. A copy of that Act is attached.
CBS 11 Report On Dangerous Driving Zones for 18 Wheeler Accidents | Dallas, Texas Personal Injury Attorney Blog
CBS 11 News ran a report on dangerous driving zones in the Dallas Fort Worth area. Below, is a link to the story and the video. (Article no longer available online)
Below are a few of the highlights of the CBS report:
- Texas leads the nation in accidents involving 18 wheelers;
- The most deadly stretch of highway was from I-20 from Benbrook to Balch Springs (14 deaths);
- The most deadly highway intersection was at I-35E and I-20 (4 deaths);
- The most non-fatal truck accidents on I-30 near Cockrell Hill;
- Dallas County had the most fatality accidents in the past 5 years than any other county in Texas with 75 deaths;
- From I-45 in downtown Dallas to I-20 (5 fatalities I the past 5 years);
- I-30 from Fort Worth to Dallas (12 fatalities over the past 5 years); and
- I-35W to Highway 114 (14 non-fatal accidents)
In addition, according to a NTSB study, 90% of the crashes involving 18 wheelers were attributed to driver error. In addition, a TxDoT study showed that restricting 18 wheelers from driving in the left lane resulted in a dramatic decline in the number of accidents involving 18 wheelers.
2009's Most Dangerous Toys | Dallas, Texas Personal Injury Attorney Blog
Two consumer watchdog groups have released their lists of dangerous toys. The World Against Toys Causing Harm (W.A.T.C.H.), released is annual list of the 10 worst children’s toys, while the Center for Environmental Health released its list of toys they believe have dangerous levels of lead paint.
WATCH’s list of toys typically have a choking hazard for small children, a risk of head injury or a risk of eye injuries. “A lot of the same hazards we see, year after year, are still appearing on the shelves,” said James Swartz, an attorney and director of group that has produced the list each year since 1972. In previous years, the group has had some success in getting some toys pulled from the shelves. The need for safe toys is obvious when you consider that the Consumer Products Safety Commission reports that in 2008 at least 19 toy-related deaths occurred in the United States alone, and that there were also about 235,300 toy-related injuries treated in hospital emergency rooms.
WATCH’S 2009 List of Toys they considered dangerous included:
- DISNEY-PIXAR WALL-E FOAM ROCKET LAUNCHER
- MOON BOARD POGO BOARD
- CURIOUS BABY CURIOUS GEORGE COUNTING – MY FIRST BOOK OF NUMBERS
- THE DARK KNIGHT BATMAN FIGURE
- X-MEN ORIGINS SLASHIN’ ACTION WOLVERINE. The group said the Wolverine has pointed plastic claws protruding some 1.5 inches from each fist. The right claw pops out and retracts upon impact, while the left stays rigid upon contact.
- LOTS TO LOVE BABIES – “mini nursery
- JUST KIDZ JUNIOR MUSICAL INSTRUMENTS
- CAT rugged mini. A Play School “Caterpillar” dump truck has a wheel that with a hard tug can be pulled off, potentially leaving a child as young as 18 months – the suggested age group for the toy – holding a 3-inch metal spike.
- PUCCI PUPS MALTESE, and
- SPY GEAR VIPER-BLASTER
Warnings on packaging for a pogo board said that an elastic cord, if pulled taut and then released, “could spring back and cause injury,” and that inexperienced users should wear safety gear
Although many of these products have warning labels. The WATCH group recognizes that children will often ignore those warnings, and those the children will be exposed to the specific hazard that the manufacturer is warning against. “When you see all kinds of warnings about where to use the product, when to use the product, how to use the product – it’s best to stay away from the product,” said Swartz.
Toys With High Lead Levels
The Center for Environmental Health tested 250 children’s products being sold this year and reports that it found Children’s toys carrying the Barbie and Disney logos have turned up with high levels of lead in them, according to a California-based advocacy group — a finding that may give consumers pause as they shop for the holiday season.
The Center for Environmental Health tested about 250 children’s products bought at major retailers and found lead levels that exceeded federal limits in seven of them. Lead is known to be dangerous because it can cause irreversible brain damage.
The toys making the list for high lead levels were:
- Barbie Bike Flair Accessory Kit
- Disney Tinkerbell Water Lily necklace.
- Dora the Explorer Activity Tote,
- two pairs of children’s shoes,
- a boy’s belt and
- a kids’ poncho.
California Attorney General Jerry Brown has sent letters to Target, Wal-Mart and the other retailers who sold the seven products, warning that children’s goods on their store shelves were found to contain illegal levels of lead and should be pulled immediately.
Following a number of revelations about lead-tainted toys in 2007, including the recall of over 2 million toys sold by Mattel, a product safety law was enacted that contained strict limits on the amounts of lead and chemicals allowed in products made for children 12 years and younger.
Manufacture’s Response to Allegations of High Lead Levels:
Mattel said it licensed the Barbie name to Bell Sports for the bike accessory kit found with high lead, but did not make or sell it. Bell said the kit was an older product that passed safety tests in 2007, but the company didn’t know it was still on store shelves.
Disney said the Tinkerbell necklace was tested by its licensee, Playmates Toys, before being distributed — and that it complied with all federal and state consumer safety regulations.
The Center for Environmental Health in Oakland, Calif., said the Barbie toy was bought at Tuesday Morning and the Tinkerbell jewelry was purchased at Walgreens. The other products the center said had high lead came from TJ Maxx, Sears, Wal-Mart and Target.
The Consumer Product Safety Commission, which regulates toys and thousands of other products, is looking into the matter.
Internal Emails From Insurance Company Describe Intentional Wrongful Denials of Claims | Dallas, Texas Personal Injury Attorney Blog
A lawsuit filed in Galveston accuses the Texas Windstorm Insurance Association (TWIA) of using prices below market rate to under-pay claims by under-estimate damages its insureds sustained as a result of Hurricane Ike. In addition, the lawsuit claims that the insurance company unfairly limited the costs allowed on roof damage claims, and discouraged re-opening closed claims. The lawsuit is based in part on internal e-mails and documents from the insurance company.
After Hurricane Ike, TWIA used different insurance agencies to help handle the number of claims that were being made. One of those insurance agencies was USAA. Internal documents show that when USAA used software prices from industry software, TWIA paid more on those claims than it did when other agencies were required to use prices set by TWIA. When this trend was noticed, documents show a TWIA manager worried that USAA was paying more on losses than other adjusters. This could create a problem at TWIA in the long run if it is discovered that USAA was allowed to do something different than the other” adjusting firms, Reggie Warren, vice president of claims for TWIA, wrote in an e-mail to USAA. In the same e-mail, TWIA allowed USAA permission to use the industry software, but suggested that TWIA should rethink its contract with USAA.
The lawsuit also alleges the insurer told adjusters to base claims estimates on an internally developed price guide – with prices lower than market – instead of pricing software commonly used by the industry. For example, one adjusting firm reported the market rate for roof repairs was $230 to $255 per 100 square feet, but TWIA’s price was $182, the lawsuit claims. In internal documents filed with the lawsuit, the association portrays its prices as just a guideline.
Another TWIA e-mail shows that TWIA may have knowingly wrongfully denied claims associated with Hurricane Ike. The claims of contractors for what is commonly referred to as”overhead and profit.” or OH&P were denied by TWIA. However, TWIA knew insurance regulators required insurers to pay “overhead and profit” when estimating claims for damage that would likely require the use of a general contractor – even if homeowners oversee the work themselves. An email from the Vice-President of claims for TWIA stated, “… (We) need to add OH & P to arrive at the appropriate repair/replacement cost, regardless if a contractor is involved,” Warren wrote in June 2008.” Despite this email acknowledging that TWIA was required to pay “overhead and profit”, the lawsuit alleges TWIA denied those payments on Ike claims involving roofs, fences, floors and some other trades..
Attorney Steve Mostyn, the attorney for the homeowner that filed the lawsuit claims that documents obtained through discovery show, “The game is rigged from the beginning. All the parts are designed for one purpose, which was to save [the insurance company] money and underpay these claims every way they can, not by accident nor incompetence but a systematic effort.”
Other e-mails suggest TWIA engaged in unfair discrimination. According to Birny Birnbaum of the Center for Economic Justice a consumer advocate group commented that TWIA’s practice “Sounds like if you’re a reasonable consumer, you get screwed,” he said. “If you’re abrasive you get something out of it. That’s the way insurance companies want to treat insureds, and then they complain about fraud.”
In addition to other problems homeowners faced in trying to get their claims paid in a timely and proper manner, the Vice-President of claims for TWIA wrote in an email that many of the adjusters that the insurance company used were inexperienced and were “not getting the job done.” If adjusters had done a better job the first time they visited a site, there would be fewer files to reopen, he noted. However, when homeowners tried to get their claims re-opened, the Vice-President of Claims for TWIA told adjusters in a memo that homeowners had to have credible evidence to force the reopening of a claim, and that an estimate from a public adjuster – independent adjusters hired by homeowners – was not enough.
The lawsuit also references that in late 2008 TWIA restructured how it paid adjusters for re-inspections, effectively discouraging them from looking for more damage. After December 1, adjusting firms earned $105 plus time and expenses if they denied a claim, according to the litigation. If they found more damage, they risked not getting paid at all if TWIA determined an adjuster erred during the first inspection, according to the lawsuit.
Sen. Rodney Ellis, (Democrat) from Houston indicated that the “The documents demonstrated a callous attitude toward insured families of the Texas coast. These documents demonstrate a pattern of deception resulting in wrongful underpayment and denial of Hurricane Ike claims by TWIA.” The scope of the problem may be enormous since Policyholders filed more than 90,000 claims after Ike. As a result, Senator Ellis has called for an investigation of the insurer and its oversight by the Texas Department of Insurance.
While not every denial of a claim by an insurance company is wrongful, the emails referenced in this lawsuit show that the insurance companies have a distinct advantage over their insureds, and the insurance companies are not afraid to take advantage of their customers. In some situations, insurance companies understand the power and leverage they have over their customers to settle claims for less than is owed, and that when the insurance company believes it can get away with under-paying a claim, it will do so. Insurance companies will issue orders to their adjusters on what to pay on a claim and how much is allowed to be paid on a certain type of claim. Even if the adjusters disagree with the insurance company’s policies, the adjusters are put in a position of losing their job if they try to treat the customer fairly. In some cases, the adjuster runs the risk of being disciplined or receiving a negative performance review if the adjuster refuses to follow illegal orders from the insurance company.
If you find yourself in a situation where you feel you are being treated unfairly by an insurance company, you should contact an attorney. Call Rachel Montes at Montes Law Group, P.C. (214) 522-9401 to discuss your case. We handle all different types of insurance claims from homeowners claims, commercial claims, to Uninsured/Underinsured Motorist claims. You deserve to be treated fairly. You pay for that right.
Medical Journal Accuses Pfizer of Skewing Test Data | Dallas, Texas Personal Injury Attorney Blog
A report in the New England Journal of Medicine is expected to show that the drug manufactuer Pzifer, skewed test data to make its test results on Neurontin look more favorable. Neurontin is primarily used to treat epilepsy, and is being marketed by Pfizer for treatment for uses that have not yet been approved. The Journal is reporting that comparisons of internal company documents with published data from 12 clinical trials found inconsistencies between data that made it into the medical journals and findings from the original trials. Discrepancies included reports of positive results from trials that were initially found to be negative, and primary study goals reported as secondary study goals. The internal company documents were obtained as a result of lawsuits filed against Pfizer and a subsidiary for promoting Neurontin, or gabapentin, for “off-label uses”,uses which are not approved by the U.S. Food & Drug Administration.
The New England Journal of Medicine reports that of 21 primary study objectives of off-label uses of Neurontin described in original documents:
•1. six weren’t included in published reports;
•2. four were reported as secondary goals, according to tomorrow’s study in the journal;
•3. For eight of the 12 published trials, the definition of the primary study goal differed between the original and published documents;
•4. Seven of the nine trials published as full-length research articles reported statistically significant results for the study’s main goal, and
•5. In more than half of those, the outcome differed between the published account and the original documents.
Pfizer has already paid $430 million in criminal fines and civil penalties in 2004 for urging doctors to prescribe Neurontin for off-label uses.
This report emphasizes how important it is for drug manufacturers to be held accountable for their actions and for the truth of their statements to the FDA and in their research results as doctors are forced to rely on the accuracy of the findings in published literature when deciding which drugs to prescribe for patients.