When a Negligent Landlord Can’t Be Sued for Negligence

Posted on Monday, August 13th, 2018 at 4:16 pm    

A recent sexual assault case in a rented apartment has highlighted the failure of Texas liability law to clarify who is responsible for a defect in the security system used in a rented property.

The case revolves around two women who shared an apartment in Garland. One of the women apparently noticed that a latch securing one of the external windows was faulty and asked her landlord to fix it. Under the Texas property code it is a landlord’s responsibility to fix window latches, amongst other things that could compromise the security of the property they are renting out.

The landlord in this case claimed that he had organized a maintenance worker to fix the lock. The two women were satisfied with the response, but were attacked a couple of months later by an intruder. They were both sexually assaulted by the intruder, who was later located by police and arrested. The intruder said he had managed to get in through the same window that had its latch supposedly fixed, because the latch wasn’t fixed!

$1 million premises liability lawsuit against the landlord

The two women filed a $1 million lawsuit against the landlord, claiming that he was negligent in his duty to maintain the integrity of the apartment and that this negligence contributed directly to the attack on them by the intruder.

The case was heard in court by a trial jury and it was determined that there was shared fault. The share of fault was determined as: 40% by the landlord, 10% by the tenant who noticed the faulty latch and brought it to the attention of the landlord and 50% by the intruder. There is no indication in the court report why it was decided that one of the victims of the attack was considered partly negligent herself. Maybe it was determined that she had failed to test the latch herself after being told by the maintenance worker that he had fixed it.

Appeals Court rules out liability and overturns the original decision

The landlord then appealed and the Appeals Court threw out the lower court’s judgment, on the basis that under Texas liability law, it must be shown by the plaintiffs that the landlord could have ‘foreseen’ the danger inherent in the failure to fix the latch. The Appeals Court ruled in this case that the landlord could not have foreseen that an intruder could have entered the apartment because of a failure to fix the latch properly.

Most right minded people would probably be surprised that the Appeals Court could have come to such a decision. It is a good example of the law being technically correct, but it is still a law which should be changed. As it stands at present, it appears that it puts an unreasonable burden on tenants to take their own precautions against a landlord’s inability to deal with reasonable requests to fix broken equipment which could lead to the property being broken into.

It could be argued that if there had been another attack or attacks in the immediate neighborhood which involved an intruder managing to take advantage of a poorly secured entrance way that the landlord would then be unable to put up a defense that he could not have foreseen an illegal entry of the type described in the case in the Garland apartment.

Until the law is changed, it does mean that tenants do need to be more careful when they find their doors and windows improperly fixed. Even if their landlord has a statutory right to making sure the faults are remedied, it appears that tenants cannot rely on the courts to defend their right to insist that their landlord makes their rented accommodation secure from intruders.

If you have been the unexpected victim of a defective product, or have been the victim of an assault or burglary that has taken place in a rental property that a landlord has claimed to have fixed, you should contact a premises liability attorney at San Antonio Injury lawyer here in San Antonio. You can make an appointment for a free consultation to discuss your legal options by phoning the office at 833-210-4878 today.

 

 

Is a School Liable for My Child’s Injury?

Posted on Friday, July 13th, 2018 at 4:17 pm    

There are many reasons why a child could be hurt or injured while at school. Both schools and those who work in them are expected to do what they can to prevent school children in their care from being hurt or injured. However, injuries do occur and in many cases, staff members or the school authorities may be considered liable and could be sued for damages.

Typical reasons for school children’s injuries

There are many reasons why a child could suffer harm while at school. In some cases, it may be that the injury was inevitable or not the result of negligence on the part of anyone working at the school or the school itself. In many cases, however, it might be proved that the accident or injury could have been prevented, especially if it happened in a classroom while a teacher was present or outside the classroom in a supervised area such as a playground or sports field. Here are some common examples of school injuries:

  • Fighting or bullying. Teachers may be held responsible if a child suffers from another child’s taunts or violence if it takes place in a classroom, a playground or anywhere else where supervision is supposed to be present.
  • Slip trip and fall injuries. These could be due to slippery floor surfaces, uneven or loose carpets, or other surfaces, food and / or drink spillages anywhere in the school or tripping over objects on the floor which should be neatly stored like school bags.
  • Sports injuries. Schools may be held responsible if an avoidable accident and injury took place on the school grounds.
  • School bus injuries. School bus drivers or other staff may be considered liable for damages if an accident took place on or near a school bus which was due to negligence.

Special problems with suing a public school

In the likely event that your child was injured at a public school, i.e. a school administered by a San Antonio school district you should be aware that suing the school is not as straightforward as suing a privately owned and administered entity. Theoretically, the school and its employees are protected from civil claims made against them by ‘sovereign immunity,’ a caveat which provides protection for all federal, state and city government agencies and those who work for them.

In practice, this immunity is waived when negligence can be proven, but suing a school district can be quite difficult. You are strongly advised to discuss your child’s injuries with a San Antonio personal injury lawyer. You will need to file an initial ‘notice of claim with the school district and wait for their decision to pay compensation. The claim must be accompanied by clear documentation that shows how the injury took place and why you think it was due to negligence. You cannot sue an individual employee of a government owned school. In many cases, your claim will be denied, but this allows you to pursue a personal injury claim instead. You will need legal help with such a claim. You will also need to be aware that Texas has stricter time limits when filing a claim against a government owned entity. The statute of limitations for claims against a government agency is 6 months from the date of the injury.

Your San Antonio Personal Injury Lawyer, Dr. Louis Patino, can provide helpful legal advice if your child has been injured while at school and can negotiate a settlement on your behalf. Contact an experienced personal injury lawyer at the San Antonio office of the Patino Law Firm on 833-210-4878 today.

When Are Swimming Accidents Someone Else’s Fault?

Posted on Monday, June 18th, 2018 at 1:22 pm    

San Antonio summers can get really hot. Of course everyone looks forward to the beginning of a new summer, especially if winter seems to have dragged on for far too long, but summer has its own drawbacks. One of these is drowning and near drowning accidents in swimming pools. This is mostly a problem that affects children, especially young children. Children love pools, but they are inherently dangerous if they are unsupervised. What happens if you let your friends’ or relatives’ kids into your own pool and for one reason or another there is a pool accident and someone is drowned or near drowned? Equally, it could be one of your own children who was injured in a swimming pool accident in someone else’s swimming pool. It could be a school pool, a city or municipal pool, a private pool or a friend’s pool.

How dangerous is swimming?

The U.S. Centers for Diseases Control and Prevention (CDC) keeps statistics on accidents such as swimming pool accidents. Their figures show that 10 people die every day on average through the year across the U.S. Their figures also show that most of these deaths (and near deaths) happen to children under14.

The organization, Safe Kids Worldwide, reports that fatal swimming pool accidents, other than in swimming pools in places like reservoirs, rivers, ponds and lakes, are actually increasing. They report that 43% of drowning or near drowning cases among younger and teen aged children occur in open water environments while slightly less, 38%, occur in swimming pools. 150 families are affected by these sorts of accidents every week.

If an open water accident happens such as a near drowning or drowning, it may be harder to blame anyone except yourself as a parent, or the child itself, if he or she opted to swim alone in an uncontrolled area. However, in Texas, there are strict rules about swimming pools that are designed to prevent untimely swimming pool injuries and drowning. If these rules are not adhered to and a pool drowning, or near drowning, takes place, then there may be legitimate reasons for taking legal action. Of course, if it is your pool where the accident took place and a child not of your own was involved you may be the defendant in a personal injury lawsuit brought against you.

Texas State rules for swimming pool owners

Every privately owned swimming pool in Texas must be surrounded by a 4 foot barrier. The barrier must have no openings or gaps that are more than 4 inches wide. The pool must have a gate or gates that close automatically after use. They must be capable of being sealed off by a padlock, combination lock, keypad or key card. Where self-closing latches are fitted, they must be on the pool side of the gate and located on the upper quarter of the gate. The whole point of these rules, of course, is to ensure that the swimming pool is not accessed without permission and supervision.

Another state rule concerns swimming pools that are built in such a way that one side of the pool area is actually part of the house. If this is the case, an alarm must be installed on any doors or windows that open out on to the pool that sound if someone enters the pool area.

A small number of pools are built above ground and are accessed by ladders or steps. In these pools, the steps or ladders must be made inaccessible by a secure lock or removed when the pool is not in use.

State rules may be complemented by city or county specific rules concerning swimming pool safety.

Penalties for violating swimming pool rules

States and other authorities may impose daily fines on owners of swimming pools that do not match safety rules. In some case, these fines may amount to $1,000 a day.

In addition to fines, if an accident does happen in someone else’s swimming pool that doesn’t meet the standards described above, then the owner may be subject to a personal injury lawsuit brought by the parents of the children harmed in a pool accident.

If your child has suffered a near drowning incident and you strongly believe that the injury happened because of someone’s negligence or the accident happened because of negligence on the part of a government authority or a private organization, contact a San Antonio personal injury attorney as soon as possible to discuss your legal options. You can make an appointment today by ringing the Patino Law Firm office in San Antonio on 833-210-4878.

 

Proving Liability in a Texas Distracted Driving Case

Posted on Sunday, May 27th, 2018 at 6:42 am    

If you have been hit by another driver and suspect that the driver wasn’t concentrating at the time, how can you prove it? It’s all very well being told that personal injury claims can only succeed if there is sufficient proof that you were not to blame and that it is your responsibility to show that the other driver was negligent, but how do you do it? The good news is that while it is not always possible to prove that the driver who hit you was a distracted driver, in many cases it may be possible, but you will need the help of an experienced and dedicated car accident attorney.

Distracted driving is one of the most common reasons for car accidents in Texas

Statistics held by the Texas Department of Transport (TxDOT) for 2017 show that there were a total of 537,475 traffic crashes. Of this total number it has been estimated that 19%, nearly 110,000, involved some kind of distracted driving. Of these distracted driving accidents, there were 2,889 people with serious injuries and 444 fatalities.

Distracted driving in Texas is defined as driving when the driver fails to concentrate sufficiently on their driving because of something that is taking up their attention. Many distracted driving crashes happen because the driver is using a cell phone, making or taking a call or texting, but there are other distractions while driving, too. Here are some examples:

  • eating or drinking;
  • talking to a passenger;
  • dealing with an annoying flying insect;
  • adjusting or programming a GPS system;
  • grooming;
  • reading a magazine, book or newspaper;
  • staring out of the side window.

Because of persistent accounts of cell phone use by drivers, the Texas state government finally passed a law last year (2017) banning the use of cell phones for texting while driving. However, law enforcement has not resulted in many citations, despite research which has revealed that more than 80% of Texan drivers actually admit to have used their cell phone for calls or text messages while driving at some time.

Checking a driver’s cell phone records may be possible

If you have been hit by another driver and believe that the driver was texting or making a call just before you were hit and that this caused your injuries, you may be able to make a personal injury claim against the driver. Proving that the driver was using a cell phone may not seem easy. If police can’t catch drivers doing it, how could you? The answer is that your attorney may make a legitimate request for the other driver’s cell phone records to the insurance adjuster dealing with the claim during discovery. If the driver refuses to give permission, or the insurer is unwilling to co-operate, then the attorney has the option of filing a subpoena. Subpoenas are legal requests for information. Generally, if the case seems to rest on phone records then the sub-poena request will be granted. The records may then determine once and for all whether the driver was actually using the cell phone at the time of the crash or just before it.

Heads Up, Texas!

The Texas DOT is well aware of the human misery caused by distracted driving and has been campaigning to convince Texan drivers to change their ingrained habits. A recent campaign launched this year is called HeadsUp, Texas! The slogan is based on the fact that drivers who have their heads down while driving are probably texting (or asleep!). In fact, police are on the look-out for drivers with their heads down, but have had little success so far in dealing with the problem. The Texas DOT is also telling Texans to use their common sense when dealing with a call on their phone or an urgent need to send a message. The main advice is to turn off the phone while driving or pull over somewhere safe to deal with it.

If you have been hit by a distracted driver in or around San Antonio and are considering filing a personal injury claim, contact a San Antonio Personal Injury attorney at 833-210-4878.

Can I Claim if My Uber Driver Crashes the Car?

Posted on Friday, April 27th, 2018 at 6:08 pm    

The well publicized driverless Uber car crash and pedestrian fatality that occurred in Arizona last month has put the spotlight back on Uber, on one hand, and liability for driverless car accidents, on the other. Driverless cars are yet to be a real concern as the technology is constantly being modified and it is probably a decade away before they become common on Texas roads. But Uber and other rideshare company accidents do happen from time to time and it is important to be aware of who is liable if you decide to use these cheaper ways of getting around.

Your Uber driver should have personal liability insurance

It may have taken time and a lot of legal action, but Uber now ensures that its drivers have auto insurance in the event of an accident in which you are a legitimate passenger. Basically, liability insurance carried by an Uber driver should cover you if you are a passenger, between the time the driver picks you up to the time you are dropped off. The amount of insurance is a maximum of $1,000,000. Items covered include medical treatment, any loss of earnings, both to date and future losses, as well as compensation for any property damage.

As might be expected, if the accident was in any way due to something you did, e.g. distracting the driver, you may not be able to obtain compensation, or at least the payment may be reduced.

The chances of an Uber accident may be higher than a standard taxi ride

You probably take a greater chance of being injured if you choose to use a rideshare company like Uber or Lyft than regular taxi or public transport, although there are no hard and fast statistics which confirm that. However, rideshare drivers do need to use their app regularly to check on potential rides and navigate to where the passenger wants them to go to, inviting the potential for a distracted driving accident. To be fair, this is the case to some extent with taxi drivers as well, but they are more likely to use a hands free radio rather than a smart phone.

What happens if your vehicle is hit by an Uber driver?

The insurance situation is different if you are not a passenger, but in another vehicle and you are hit by an Uber driver. It then becomes a more standard personal injury situation and should be covered by Texas state laws on personal liability. According to Texas modified comparative negligence rules, you are entitled to compensation in proportion to the percentage blame as long as you were not more than 50% to blame for the accident. For example, if the accident was judged to be 70% blamed on the Uber driver and 30% blamed on your actions, then you should receive 70% of the compensation claimed, as long as the claim is accepted.

Again, all Uber drivers are supposed to have liability insurance, so the worry that the driver who hit you was uninsured or underinsured should not be relevant. As in all personal injury claims, you still must be able to prove that the injuries you received were due to negligence on the part of the Uber driver. This is where a San Antonio injury lawyer with experience dealing with Uber and rideshare accidents can help with filing a legitimate claim.

Driverless car injuries – who is liable?

Uber is not the only company intent on introducing driverless cars. The Uber car that crashed in Arizona last month actually had a driver in it, but it appears that the driver may not have been looking just before the crash happened. Uber has withdrawn its driverless cars for the moment and there has been no decision yet on what happened and who was to blame for this particular accident. It may be that both the driver’s lack of supervision as well as a failure of the car’s detection mechanisms, including lasers, cameras and computers failed to detect the possibility of the accident.

Advocates for autonomous cars claim that these cars have the potential to reduce human error and ultimately lead to a lower traffic accident rate, but there are already worrying signs that car makers involved in developing fully autonomous cars are attempting to limit the ability of injured victims to sue in the event of a potential future accident.

If you have been injured in an Uber accident, whether as a passenger, or in a vehicle of your own and are considering legal action, contact an experienced San Antonio personal injury lawyer to discuss your legal options. Call 833-210-4878 today.

How Much Could I Get in a Personal Injury Claim if I was Partly to Blame?

Posted on Friday, March 23rd, 2018 at 4:41 am    

Accidents happen all the time, but each one is unique. In some accidents, injuries to the people involved may never happen at all, or may be so insignificant that they will never lead to a personal injury claim being filed. At the other end of the scale, in some accidents, the injuries may be so horrific that one or more victims may be so badly injured that their injuries could disadvantage them for life, or even lead to their death.

Apart from the scale of seriousness of the injuries received in an accident is the question of who was to blame. Many accidents may not be clear cut. Was the accident solely one person’s fault? Was more than one person to blame? If you were injured and are contemplating filing a personal injury claim, one of the first things that a defendant’s insurer will probably do is try and implicate you in the accident. The insurer may try and do this whether you know whether you shared some of the fault or not. If you know that you were not at fault or are not sure whether you were to blame for at least some of the reasons why the accident took place, it is safer not to admit fault at all. Your personal injury accident attorney will help you decide exactly how to proceed with the claim to maximize your chances of obtaining the compensation you deserve.

Texas law on comparative negligence

All states have laws that clarify who can receive what in a shared personal injury case. In some states, like Virginia, if you are judged to have had any part of the blame at all, even 1% then you will not be allowed to obtain any personal injury compensation. At the other end of the scale, pure comparative negligence rules allow a plaintiff to receive a percentage of compensation calculated on the percentage blame. This is usually decided by a judge if the case goes to court.

In Texas, the law follows what is called the modified comparative negligence rule. The defendant must be at least 50% to blame for the accident. To put this another way, if you were found to be 51% to blame, you cannot obtain compensation. If you were found to be 49% to blame, then you will be awarded 51% of the compensation payment that you originally claimed.

Basically, as long as you were not more than 50% to blame for the accident that caused your injuries, you should be awarded a percentage of the original amount claimed according to the final percentage blame which it is decided is yours.

The only way to prevent an aggressive insurer for convincing a court (if it comes to that) that you were to blame for the accident that caused the injuries you are claiming for is to get help from an experienced injury lawyer. The attorney will have dealt with claims like yours before and will probably have dealt with the insurer who is now trying to evade having to pay out any compensation at all if they can get away with it.

As with all personal injury claims, the more evidence you have that backs up your claim and negates the allegations that the defendant and his / her insurance adjuster is making, the more likely you will be able to obtain the compensation you need to get on with your life.

Comparative negligence when there is more than one defendant

Comparative negligence rules also apply when there is more than one defendant. For example, if you have been injured in a bus accident, part of the blame may be the way the bus driver handled the bus at the time of the accident, but perhaps another vehicle driver was also partly to blame, or the bus company itself. Personal injury compensation depends on identifying exactly who was at fault in an accident and to what extent.

Assuming that you, in this bus accident example, were not to blame at all, then the percentage blame must be divided between the bus driver and the other party. The total percentage must come to 100%. If the claim is for a total of $10,000 and it is decided that the bus driver was 60% at fault and another driver was 40% at fault, then if the claim is successful, the bus driver’s insurer would be liable for $60,000 and the other driver’s insurer $40,000.

No personal injury case is quite like any other and few are straightforward. If you are injured anywhere in San Antonio or the surrounding area, you should contact the Injury lawyer San Antonio as soon as you are able to discuss your legal options.

Does Amtrak Have a “Lax Safety Culture”?

Posted on Sunday, March 4th, 2018 at 11:38 pm    

The latest in a string of Amtrak train crashes has yet again focused the public’s attention, as well as that of investigators, on the rail company’s safety record, which is abysmal. It doesn’t matter what is the actual reason for each particular crash, it seems that Amtrak management appears to be attempting to dodge bullets headed at it rather than seriously address its own safety procedures.

The key seems to be getting an electronic safety program called “Positive Train Control” actually working properly. It has only been partially installed and it appears that this just isn’t good enough to prevent trains going off the rails, crashing into trains and other vehicles and lives lost or ruined because of injury.

The latest crash took place in South Carolina on February 8th when Train 91 from Penn Station, bound for Florida, was accidentally derailed from the main line and crashed head on into a CSX freight train which was parked on a siding. National Transportation Safety Board (NTSB) investigators found that in this instance that CSX crew members failed to reverse the track switch that had allowed the freight train to divert off the main line on to the siding. It also appears that there was a message to dispatchers that indeed the switch had been activated. It also appears from the preliminary results of the NTSB investigation that signals in the vicinity were not working because of lack of maintenance.

The South Carolina crash resulted in the deaths of the train’s engineer and a conductor, as well as injuries most of which, thankfully, were relatively minor, to more than100 passengers.

Amtrak management has put the blame for the latest crash on CSX, which has the contract for servicing the tracks and signals. However, critics have claimed that the recent crash is a symptom of what they say is a culture of lax safety measures at Amtrak. They say that Amtrak has had plenty of time to get Positive Train Control up and running on the rail network and properly operating this would have prevented the most recent crash, as well as most of the others. That includes the January 2018 Washington state crash when an Amtrak train reportedly derailed after negotiating a bend at more than twice the recommended speed.

Positive Train Control is a complex system that integrates sensors providing information about a train’s location and speed with signals and track switches. It is designed to automatically slow down or stop a train if there is any danger of a collision or derailment.

For example, Positive Train Control should have automatically prevented the train that was traveling too fast around the bend in Washington from reaching the speed that it did – more than 50 mph more than recommended. However, it was not turned on, as it was not yet operational. The investigators after that crash questioned why the engineer and conductor appeared to be unaware of their location and that they should have reduced speed before entering the bend. Positive Train Control is supposed to over-ride engineers and conductors if there is a discrepancy between the decisions they make and the potential for an accident as detected by information available to it.

It’s not as if Positive Train Control as a concept is totally new. It was conceptualized back in the 1960s. Congress gave railroad companies until 2015 to fully implement the system, but this was then extended to the end of 2018. It may not be until 2020 that Positive Train Control is fully implemented everywhere and even then there may be a period in which refinements and adjustments are necessary to ensure it is fully operational.

In the meantime, more accidents may be inevitable. Train crashes are potentially very serious because of the number of passengers involved and the size and weight of the train. If you, or a member of your family, are unfortunate enough to be injured in any kind of rail or train accident anywhere in Texas, you should talk to an experienced personal injury attorney at the Patino Law Firm in San Antonio. You may be entitled to full and fair compensation from the rail company or whoever was to blame for the accident that caused your injuries.

What’s Involved in a Trial in a Personal Injury Case?

Posted on Wednesday, January 24th, 2018 at 8:52 pm    

If you have been considering filing a personal injury claim or lawsuit against another person, business or organization, you should ask your attorney about the chances of the lawsuit going to trial and what might be involved if it does.

Most personal injury claims never get to the stage where a trial is called for. In fact, often times, even a lawsuit is never filed because a satisfactory settlement has already been negotiated.

A personal injury attorney will try hard to make sure that a trial is unnecessary and a successful compensation payment is made before a trial takes place. Most personal injury attorneys will carefully assess the circumstances of a personal injury case and in particular the evidence that might be available which can support the claim. The more convincing the evidence is, the less likely that there will be a need for a trial.

A personal injury claim may eventually go to trial because the attorney who represents you thinks that the claim is more likely to be won if a trial takes place or because a more generous compensation payment may be awarded if a trial takes place.

A personal injury trial is not to be taken lightly. Judges do not like their time wasted and attorneys cannot afford to waste their time and money, either, especially because the vast majority of them, like our San Antonio lawyers, work on contingency, i.e. are not paid unless there is a satisfactory outcome for the plaintiff. The legal fees come out of the compensation payment. No win, no fee.

Basically, a trial takes place when no satisfactory agreement can be arranged between you, the plaintiff and your attorney and the defendant, his or her insurer and their attorney. The trial will be heard by a judge and possibly a jury and provides an independent assessment of the circumstances surrounding the injury and how it was caused, together with supporting evidence. It is also an opportunity for the defendant to show that he or she was not responsible or that negligence was not involved. The trial decision will also decide on the eventual payment to be made, if any, to the injured party.

There are a number of steps involved in a complete personal injury trial and it is worthwhile you, as the plaintiff, becoming familiar with them.

Step 1 The jury, if any, is determined. This is not a pre-determined process, as both the plaintiff and defendant get to see who is on the list drawn up in advance and may reject any of the suggested jurors if there is any suggestion that they could be biased against either party.

Step 2 The attorneys for the plaintiff and the defendant make opening statements outlining their client’s side of the case. Usually, the plaintiff’s attorney makes the introductory opening statement and because it deals with the reason why a claim has been submitted in the first place may take longer than the other opening statement by the defendant’s attorney. In a few cases, there is more than one defendant, in which case each defendant has an independent opening statement made on their behalf, rebutting the plaintiff’s case.

Step 3 This is when any witnesses that are available give their testimony under oath and may be cross examined by the opposing side’s attorney. As with the opening statement, the plaintiff usually has the first opportunity to bring forth witnesses and make available for inspection other physical evidence, such as photos, medical statements etc. Each witness is first questioned by the attorney representing the side that called the witness, then cross examined by the opposing attorney. Each side may choose to rebut any of the opposing side’s witness statements or question the validity of any other evidence provided.

Step 4 The closing statements come after each side has “rested” with respect to witnesses and other evidence. It is an opportunity for the main points to be stressed and anything that has been raised during the trial incorporated in such a way to enhance the side that is making the closing statement.

Step 5 The jury is given instructions that are needed to come to a verdict regarding the personal injury case. This is usually based on deciding on the “preponderance” of evidence that points one way or another. The jury members then get together to discuss the case. This can take anything from a few hours to a few weeks. In a Texas personal injury trial, a majority of 10, rather than unanimity, is all that is needed for a verdict.

When a decision is made, Step 6 involves the judge announcing the verdict, i.e. whether the plaintiff was justified in suing the defendant and how much should be awarded.

Nuedexta Not a Magic Bullet in Texas Nursing Homes

Posted on Monday, December 25th, 2017 at 3:02 pm    

Nuedexta, a drug manufactured by the Southern California based company Avanir, has been heavily promoted as a means of dealing with a number of neurological disorders, especially pseudobulbar affect (PBA). However, despite the drug having FDA approval, it has been implicated in 51 deaths, 113 hospitalizations and over 1,000 reports of adverse effects. Even during clinical trials before the drug was cleared for release by the FDA, it was implicated in 3 deaths.

Despite PBA being relatively uncommon amongst the elderly in nursing homes together with doubts about the synergistic effects of Nuedexta when taken with other more commonly taken medications, the drug has been aggressively promoted to nursing homes and doctors.

Now, following a CNN investigation into Avanir and Nuedexta, the leading non-profit organization that supports those with Alzheimer’s and their families the Alzheimer’s association, has curtailed funding donations from the company. Los Angeles City is also carrying out its own probe into the use of the drug in L.A. nursing homes and the way the drug is promoted.

Avanir has only recently won a patent war with its competitors over generic versions of the drug and it is thought that the aggressive marketing is linked to an attempt by the company to balance its books after spending up big in the court battles.

The main criticism of Avanir is that it is winning influence amongst doctors and nursing home management by providing cash incentives if they help their organizations purchase the drug. In one survey, it was shown that of the prescriptions made by doctors, over half of them had already been given financial inducements by Avanir.

The tactic seems to have been working as the sale of Nuedexta has increased by some 400% over the last few years since it was released. In 2012, for example, a mere 2.83 million pills were prescribed, but by 2016, nearly 14 million Nuedexta pills were prescribed.

Much of the money made available for purchase of Nuedexta comes from the federal government through Medicare payments.

No clear evidence that Nuedexta is needed in nursing homes

Although there is no detailed evidence to show what the use of Nuedexta is like in San Antonio nursing homes is like, there is nothing to indicate that Texas nursing home managements have taken a more cautious line over purchasing the drug, despite the fact that there is no clear evidence that Nuedexta does any elderly nursing home residents any good.

In fact, the evidence elsewhere is that the drug could be doing more harm than good, unless the residents it is provided for suffer from both dementia as well as PBA. It has been reported that PBA is not common in any nursing home. Nursing home residents have been reported to have a higher incidence of falling over, confusion and dizzy spells.

The concern with Nuedexta’s use in nursing homes, in addition to the unproven benefits for residents, is that its application will be poorly carried out by untrained staff who are a feature in many nursing homes.

Avanir has also been accused of deliberately targeting advocacy groups for dementia and Alzheimer’s even though there is no evidence that the drug it makes has any effects on these afflictions.

If you have an elderly relative in a San Antonio nursing home or residential care facility it may be worth asking the management at the facility whether it is using Nuedexta and if it is whether it is one of the medications being given to your relative. Does your relative suffer from PBA, or show signs of dementia? Find out whether the relative has been exhibiting any of the characteristic symptoms of unnecessary use of Nuedexta, such as dizziness, confusion and falling over. There is no need for your relative to be given Nuedexta unless he or she has been suffering from PBA. Talk to a nursing home abuse attorney at Patino Law Office in San Antonio to find out what your legal options are.

UPS Truck Accidents in Texas

Posted on Thursday, November 16th, 2017 at 11:20 pm    

Truck accidents cause more serious injuries and fatalities on U.S. highways than any other type of vehicle. That includes highways in Texas too. Most people tend to think of the typical truck accident as a crash involving an eighteen wheeler, but there are smaller truck, too whose drivers and company profits are under the same sort of pressure as the larger trucks. One particular company that seems to stand out in terms of frequency of accident reports is UPS. According to the Federal Motor Carrier Safety Association’s (FMCSA’s) company snapshot, UPS trucks were involved in 60 fatal accidents alone in the last two years and nearly 700 more where serious injuries were involved.

UPS is admittedly a big company. It has a national delivery fleet of around 100,000 vehicles and beyond the U.S. it has a huge international presence, serving 220 individual countries and revenue in the billions of dollars annually. Considering the size of the organization and the number of parcels that need to get from one place to another in the U.S. it’s not surprising that there are a large number of accidents involving these trucks.

Why do UPS trucks cause serious accidents?

Some of the reasons why UPS trucks are involved in so many serious accidents are the same as for any trucks. The typical truck accident is caused by driver error rather than a fault in the company or defective parts, but the fact is that in any encounter between a large truck and a smaller vehicle such as the typical auto or even a SUV, the smaller vehicle is almost always going to come off worse. In fact, trucks are not necessarily more crash happy than any other type of vehicle, it’s just that they are so much heavier and larger in size than anything else on the highway.

Large, heavy trucks are not the cause of an accident. You can’t blame an accident on the truck or even the model of the truck. Truck recalls because of known defects are very rare. It is almost always something the driver has done that is the immediate cause of a crash. If UPS trucks are involved in highway accidents, then an analysis of what US drivers are doing wrong is necessary.

Truck drivers, including UPS truck drivers, primarily cause accidents because they:

  • are too tired to concentrate on driving safely;
  • are driving too fast for the conditions: note this is not the same as driving over the speed limit;
  • are under the influence of alcohol, drugs or medication that affects their ability to drive safely;
  • make poor decisions about passing or lane changing;
  • do not see a vehicle because of the truck’s blind spot;
  • fail to yield the right of way at an intersection;
  • are distracted by something, a cell phone call, texting while driving, eating or drinking, checking the GPS;
  • are inexperienced or unqualified to drive a large truck safely;
  • are suffering from psychological or emotional stress.

UPS drivers are under a lot of pressure to get their load of parcels delivered as fast as possible. Particularly in large states like Texas, that means driving for very large distances for long periods of time. The temptations to stay behind the wheel for longer than is safe as well as to drive faster than is safe are very real.

UPS drivers are not always to blame for accidents. Occasionally, defective parts let the truck down. Components like brakes, tires and steering are some of the commonest reasons for accidents that are not related to the way the driver is driving.

What can be done to avoid a UPS truck accident?

If you are behind a UPS truck, keep a safe distance behind it and only pass when you are sure it is safe to do so. Watch the way the truck is being driven. If the truck driver is tired, on drugs, or using his or her cell phone their driving may be erratic. You may have to swerve to avoid the truck when passing it id it veers out towards you.

If you are involved in a UPS truck accident, and are sure it was the truck driver’s fault, or at least not your fault, you may be eligible for compensation. Talk to a truck accident attorney such as one at Injury Lawyer San Antonio to discuss your legal options. A successful personal injury claim will help pay for any damage to your vehicle, pay medical expenses if injured and compensate for any lost earnings. Ring 210-646-9100 for an appointment.