Articles Posted in Nursing Home Abuse

There are various types of losses a Texas personal injury attorney can recover for an injured claimant. In San Antonio wrongful death cases , for example, medical, funeral, and burial expenses can be recovered in a survival action brought by the executor of the estate. Medical and funeral expenses are also recoverable in wrongful death actions, but recovery is strictly limited to those expenses actually incurred by the beneficiaries.

In an action for wrongful death, the beneficiary can recover medical expenses provided the beneficiary had a legal obligation to pay for those expenses. In addition, an estate can recover punitive damages in a survival action, but parents cannot recover exemplary / punitive damages for a child’s death. Any expenses must also be reasonable in order to have recovery.

In a survival or wrongful death action, there is also recovery for pecuniary losses such as the value of the care, support, and services, a plaintiff would have received if the deceased individual had lived. There must be evidence the deceased family member provided such support and services. Expenses for psychological counseling also fall under the realm of pecuniary losses and may be recovered in wrongful death actions.

Most Texas medical malpractice cases require experts to prove causation. There are exceptions where a jury does not need an expert to decide causation. Those medical malpractice cases are limited to those cases where a jury can use its own experience and common sense to determine causation. For example, a jury will not need an expert to establish a causal connection when a doctor inadvertently leaves a wire in a woman’s breast.

Another example is an elderly plaintiff who sustained personal injury at a Texas nursing home after he fell while walking down a hall in the office and sustained serious brain injuries . The defendants moved to dismiss the case on the basis that the plaintiff failed to provide expert testimony. However, the Court denied the dismissal indicating that the medical provider’s failure to provide an escort or medical device to assist the plaintiff was within the realm of the jury’s common sense and general experience. Even the defendants’ expert testified that the plaintiff required an escort to prevent falling.

In order for the court to admit expert testimony, the expert must be qualified in the particular area and the admitted facts must support the expert opinion. For example, on Texas negligence claims against a physician or hospital, the expert should be a doctor who can testify on the alleged departure from accepted standards of care. The same logic applies to Texas dental malpractice claims or Texas podiatrist malpractice claims . A nurse is generally not qualified to render an opinion on the medical causation of injury unless that opinion is used in conjunction with another doctor’s opinion.

In 2009, there were several seminal cases in the area of Texas medical malpractice and Texas nursing home abuse litigation .

In Dallas, the patient brought an action against both the physician and the physician’s assistant (PA) for their failure to follow up on a mass detected on a mammogram. It is important to note that the expert report on behalf of the plaintiff has to address the specific standard of care for both the doctor and the PA.

In a Texas dental malpractice case out of Corpus Christi, the dentist allowed her assistant to remove the crown and grind the plaintiff’s teeth. The dentist was alleged to have committed malpractice by giving work to a non-dentist and keeping unsuitable dental records.

There have been several San Antonio nursing home personal injuries which merit comment.

The executrix of the estate of a San Antonio nursing home resident sued 2 doctors and the nursing home for medical malpractice. The alleged victim was a 72 year old woman who developed a staph infection and sepsis after her back surgery. The appellate division dismissed the case on the basis of an inadequate expert report. The Court specifically cited failure to link the nursing home’s failure to tell the physicians of drainage issues with the woman’s subsequent death from sepsis.

In a Texas pharmaceutical drug injury and medical malpractice case, a woman sued Eli Lilly claiming that the company’s drug warnings were so defective as to contribute to his suicide. Texas law is instructive on this point. The plaintiff has to prove that the doctor would have changed their decision to prescribe a particular drug if the doctor was aware of an alternative drug warning. It is the pharmaceutical company’s duty to warn the doctors (known as learned intermediaries) as opposed to direct warnings to the consumers. Ultimately, doctors are aware of the risks of the drug and can make the consumer patient aware of those risks. The 5th Circuit did indicate that the read and heed presumption (i.e. the patient will follow a warning if one is given) was not applicable to failure to warn product liability cases against pharmaceutical companies involving a learned intermediary. Ultimately, the plaintiff failed to prove causation because he did not adequately show the doctor would have changed his mind given an alternative warning.

In the late 1990s, the Texas Supreme Court indicated that the substance of an expert’s testimony must be considered, specifically the data the expert relies on to form his/her opinion. If the foundational data upon which the expert bases his opinion is unreliable, then the expert’s opinion will be considered unreliable.

Very often, in Texas pharmaceutical injuries or Texas wrongful death cases from exposures to lethal substances, the Court looks at epidemiological studies of the substance’s effect on a population. The study must demonstrate that the risk of disease or injury for the population of people exposed to the substance is twice the risk of the population contracting the same disease who have not been exposed to the substance.

To illustrate, if a disease naturally occurs in 6 out of 1000 people when they are not exposed to a certain drug or substance, then a study would have to show that more than 12 out of 1000 exposed to the drug or substance would suffer the disease. Another option is that the epidemiological study must show significant results at a 95% confidence level.

Texas and the greater Southwest region has witnessed a spate of egregious nursing home neglect cases. Nursing homes know that the age of the victim will scare away many attorneys and they blatantly put dollars ahead of the well-being of the powerless.

A San Antonio Texas nursing home negligence attorney looks for certain key elements involved in the care of the elderly plaintiff including Stage III-IV pressure ulcers; symptoms of malnutrition and dehydration; fractures and spinal injuries from falls; and errors in dispensing medication.


The federal government has enacted strict regulations on nursing homes that demand compliance. Under the Nursing Home Reform Act , any facility receiving Medicare / Medicaid funds must tend to a resident’s ability to eat, bathe, and toilet. The resident must be properly cared for so as not to develop pressure sores, and they must be adequately supervised to prevent accidents.

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