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Keeping an Eye on the Date: Statutes of Limitations as They Apply to Birth Injuries

Posted on Sunday, February 24th, 2019 at 5:49 pm    

Statutes of limitations are imposed in many areas of law. They vary from state to state and may be quite complex, as is certainly the case where they apply to birth injury claims. Basically, when it comes to making a personal injury or medical malpractice claim, the state’s statute of limitations determines when you can no longer make a valid claim. The reasoning behind this is to prevent courts from being clogged up with claims made many years after an event was alleged to have taken place. Although there are exceptions, the longer a claim is made after a supposed event, the less likely it can be proven, making the claim less likely to succeed. This can prolong the claim process which can also prolong the time taken in court if it comes to that.

In most states, personal injury claims made against private individuals or organizations are two to three years after an injury has occurred. The statute of limitations for claims against government entities, like cities, states or the federal government are typically shorter, often as little as 6 months or a year and the claim process is often more complex as well.

Exceptions to the statutes of limitations when an injury or illness is discovered later in life

Most states recognize there are exceptions to the general rules about time limits. For example, if someone works in a particular industry and eventually becomes sick, they may not realize that their sickness resulted from a period working in the industry until much later in life. This is typical for many cancers and diseases like mesothelioma, for example. In these cases, the law generally allows what is called a toll or extension of the statute of limitations so that the claimant can be able to make their claim within a set number of years after the ‘discovery’ of the disease, rather than after the exact point at which the disease occurred. In most cases, this would not be possible anyway s the damage would have been done over a prolonged period of time.

A similar extension of the normal statute of limitations applies to birth injury claims as well. Theoretically, if a birth injury occurs due to the incompetence or poor medical procedures, then the family should be able to make a claim within two years of the birth in Texas. This period may be different in other states. However, that assumes that whatever happened to the baby at birth was immediately obvious. In some cases, the effects of poor procedures may not be apparent until much later in life. There may be no recognition of the effects of a birth injury, for example, until a child becomes a teenager. By that time, the statute of limitations has long passed and without an exception to the statute, it would become impossible for that child to receive compensation from the medical institution responsible for the injury.

Extension of the normal statute of limitations for some birth injury claims

In Texas, the statute is modified to take this into account in a modified version of the ‘discovery’ extension.’ A child has two years after they become 18 to make a birth injury claim a long as the claim is made against a privately owned and run medical facility or against a private individual medical professional.

Claims against a government medical facility

The law is different when it comes to birth injury claims against a government owned or run medical facility or a military hospital run by the federal government. The statute of limitations may be as little as one year after the discovery of the injury to file an administrative claim against the relevant agency.

As the statute of limitations is so important when it comes to making a personal injury claim or medical malpractice claim it is vital that you contact an experienced personal injury attorney as soon as a birth injury or other medical incident is recognized. You can contact a San Antonio Lawyer for professional and dedicated legal help at 833-210-4878.



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.

Will a Surgical Never Event Really Never Happen?

Posted on Sunday, July 30th, 2017 at 4:16 pm    

If you need surgery in San Antonio what is the chance of a surgical never event happening? If you don’t know what a surgical never event is, it is certainly not an event that never occurs, but this is what an avoidable surgical error is colloquially referred to. The name really implies that a mistake or error that takes place during surgery should “never” have occurred. Unfortunately, surgical never events do occur all the time, even though thankfully they are infrequent.

The estimated number of these mistakes, to give them a more meaningful name, is between 75 and 80 every week somewhere across the country. Many of these mistakes lead to expensive medical malpractice suits as the unfortunate victims may experience anything from temporary ill health right through to death because of the mistake made.

Types of surgical never events

There are many different types of surgical error. The majority of them are in one or more of the following categories:

  1. Surgical implements or items used during surgery left behind in the patient’s body. These include common surgical instruments like scissors, scalpels and forceps together with items used in a surgical procedure such as swabs and surgical sponges.
  2. The wrong surgical procedure is carried out. This may be due to a misdiagnosis or a surgical procedure carried out on the wrong patient or on the wrong body part.
  3. A surgical procedure is not carried out professionally. No-one can absolutely guarantee a particular surgical procedure. If surgery does not result in success or the patient dies it does not necessarily mean that a mistake has been made. What would be regarded as a “never event” is when surgery that would be normally considered straightforward or expected to be satisfactory is completed incompetently or without regard to normal professional conduct.

Why surgical mistakes are made

There is a misconception that surgical errors are made by inexperienced or insufficiently trained surgeons. This is not borne out by the statistics of such errors. In fact, more surgical errors are made by surgeons in their middle years of practice than any others. A third of surgical errors are carried out in the U.S. by surgeons between 40 and 49. This compares to less than 6% of older surgeons (over 60).

If it is not due to lack of experience then what are the principal reasons for errors?

There are a number of complex reasons and, in any one incident, there may be one or more of the following being the underlying cause of the error.

  • communication barrier or communication break down between different medical personnel;
  • fatigue;
  • distraction;
  • stress;
  • insufficient personnel at hand (lack of sufficient staff);
  • surgeon interpreting the rules incorrectly or bending or breaking the rules.

The effects of surgical never events on patients can be fatal

Surgical never events didn’t get their name for nothing. Sharp implements that are left inside a patient’s body through carelessness can cause internal bleeding and lead to more problems than the patient had originally. Death can result if further surgery to remove the implement cannot be handled by the patient.

Surgical errors are not always identified until the patient starts to complain of pains that they did not have beforehand. These pains may be in addition to those they had beforehand. This would be typically the case if the incorrect procedure had been carried out either on the wrong patient or on the wrong body part.

Surgical errors mean that surgery must be done again. In some cases, it may be simply be to remove a missing item such as a sponge or scissors. In others it will be to correct an incorrect procedure and then perform the correct one. Surgery is invasive and physically and emotionally stressful. There is no guarantee that if a patient must be operated on again that they are going to recover.

Legal options after a surgical never event

Most surgical errors are likely to lead at some point to a medical malpractice lawsuit against the surgeon or other medical personnel who was responsible for the error. It has been estimated that surgical errors cost the medical profession 1.4 billion dollars annually in medical malpractice lawsuits.

If you, or a member of your family, have been unfortunate to suffer from a surgical never event in any San Antonio medical institution, you are entitled to consider claiming compensation. Contact our experienced medical malpractice attorney at the Patino Law Office in San Antonio. An initial consultation is free and we do not charge a legal fee unless we win the case on your behalf. Call 877-333-3333 today.

Could Texas Caps on Medical Malpractice Suits Lead to More Criminal Cases Against Doctors?

Posted on Friday, February 24th, 2017 at 12:39 am    

The case of Christopher Duntsch, the ex-neurosurgeon who was sentenced to life imprisonment for just one of a number of botched surgeries, may be the start of more to come, if the caps on medical malpractice lawsuits in Texas are retained as low as they are now, claims a medical malpractice attorney.

The attorney, Chris Hamilton, who is a Dallas based attorney, says that when the cap was imposed in 2003 it meant that it became less likely that medical professionals were going to be sued through the civil court. That could mean that they would be more likely to cause harm to others and ultimately only a criminal conviction would stop them.

The Duntsch case

Christopher Duntsch was an up and coming neurosurgeon but something went wrong in his career. He was tried and found guilty by a 12 member jury in Dallas recently. The case that saw him convicted was a botched surgery on an elderly patient, Mary Efurd, that left her bleeding and eventually led to her death.

Efurd’s death was not the only one that was attributed to Duntsch’s botched surgery. Kellie Martin also bled to death in 2012. Several others of Duntsch’s patients were left with serious injuries after his surgery on them.

The jury heard from many of Duntsch’s former colleagues, family and relatives of patients who had suffered.

Duntsch is the first surgeon to have been imprisoned for medical malpractice. It took an hour for the jury to make a decision. The prosecutor, Michelle Schugahart, in her summing up said that Duntsch had continued to ruin lives because of “greed”. She said that that he owed money and being a neurosurgeon meant that he could earn plenty of it.

Duntsch’s defense attorney said that he had become a scapegoat for hospitals and medical establishments that had employed him. Melinda Lehman said that it wasn’t right that these institutions had continued to put Duntsch into operating rooms knowing that he had botched earlier operations just so “that they could continue to make money.”

The cap on medical malpractice lawsuits

Many states have a cap on personal injury lawsuits but the cap is usually imposed on what are termed “non-economic” components. These include such things as “pain and suffering,” “loss of enjoyment of life” and “punitive damages.” Economic components are medical expenses and lost wages or other income which are a direct result of a personal injury. There is not usually any cap put on these as their value can fairly easily be documented accurately.

Texas has a medical malpractice non-economic component cap of $250,000. That means that if a medical malpractice lawsuit is filed, amounts for pain and suffering and any other non-economic components cannot be more than that figure.

According to Chris Hamilton, that figure is too low. He says that because of the full cost of a medical malpractice lawsuit, it is less likely that a lawsuit will be filed because of the cap. He says that this might mean that a doctor or surgeon or any other medical professional could keep causing injury without being stopped by civil action against them. The same goes for medical establishments that might be implicated in the malpractice because they are aware of this happening yet allow it to continue. He claims that supervisors often only realize that there is something seriously wrong when a private lawsuit is filed against a medical professional.

Challenges against the Texas cap have so far failed

Texas has upheld the 2003 cap despite challenges against its constitutionality. Challenges have been successful in several other states. The Texas cap has also not been adjusted for inflation since 2003, 14 years ago and is therefore significantly lower in real terms today than it was when it was imposed.

Call a San Antonio medical malpractice attorney right away if you suspect or know of medical malpractice

Medical malpractice can cause serious injury, long term misery and even death. Call Patino Law Firm in San Antonio on 210-646-9100 to arrange a free consultation with an experienced medical malpractice attorney as soon as possible. Dr Louis Patino is an experienced San Antonio personal injury attorney with extensive experience in the medical field.