Wrongful Death

Published on: September 13, 2016

Wrongful Death, EMTALA, and Sovereign Immunity in Texas

Bansal v. University of Texas MD Anderson Cancer Center is a wrongful death and survival action that arose out of the death of a stage IV colon cancer patient. The decedent was brought into the cancer center at the University of Texas with various symptoms, and he died a week later.

The decedent’s father and wife sued the center. They alleged that the center didn’t stabilize the decedent or relieve his pain after the oncologist determined chemotherapy hadn’t worked. The decedent died less than 24 hours after the center reduced its care. The plaintiffs claimed negligence, negligence per se, breach of contract, and a violation of the federal Emergency Medical Treatment and Active Labor Act (EMTALA).

Under EMTALA, if someone comes to a hospital, and it determines that the person has an emergency medical condition, the hospital needs to provide further examination and treatment to stabilize the patient or transfer him to another facility with certain conditions. When a hospital participates in receiving Medicare payments, someone harmed by the hospital’s violation of EMTALA can sue the hospital and receive personal injury damages that are available under state law.

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Published on: July 15, 2016

Designation of a Responsible Third Party in Texas Wrongful Death Lawsuit

By Carabin Shaw

In re CVR Energy, Inc. is a 2016 Texas wrongful death case in which the defendants tried to designate a former codefendant as a responsible third party. Two men, Billy Smith and Russell Mann, were killed in a refinery explosion while they were trying to restart the pilot light in an old boiler. They were employed by Wynnewood, a wholly-owned subsidiary of CVR refinery. The boiler was not equipped with a system that would allow it to be restarted from a remote site. Wynnewood had rejected proposals for a system of this sort, and according to the plaintiffs it had actual knowledge that the boiler had previously detonated and injured workers.

The family of the deceased sued Wynnewood and CVR. Among other things, they alleged that CVR as Wynnewood’s parent company had been negligent and grossly negligent by failing to install a boiler management system and failing to install controls on all heating equipment, among other things. They served requests for disclosure on CVR while Wynnewood was still in the lawsuit, asking CVR to name any responsible third parties. Under Rule 194, a party can obtain disclosure of identifying information for anyone that could be designated a responsible third party. However, CVR did not list its codefendant as a responsible third party in its response.

The plaintiffs had nonsuited (dismissed) Wynnewood Refining Company less than 60 days before trial, after the statute of limitations had run. The remaining defendants filed a motion to designate Wynnewood as a responsible third party, but the court denied this motion.

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Published on: July 7, 2016

Wrongful Death as a Result of a Flooded River in Texas

By Carabin Shaw

In Walker v. UME, Inc., a Texas Court of Appeals considered a case in which the trial court had entered summary judgment in favor of the defendants in a wrongful death case. The case arose in 2010, when two couples, the Walkers and the Johnsons, drove to Camp Huaco Springs for a weekend of camping and river rafting. They parked in two spots that they were assigned. On Saturday, they went on a canoe trip on the river and toured caverns. They went back to the campsite and went to bed in their RV campers. It was not raining at that time.

The couples hadn’t realized that there was a forecast of heavy rain. Cynthia Walker woke at around 6:00 a.m. There was thunder and lightning, and Terry Johnson (Cynthia’s brother) was screaming that they needed to leave. She realized that the river had risen overnight. The campers were floating. The two couples were swept down the river in the flood. Norman Walker died in the flood. His wife and the Johnsons were rescued but required medical care.

Cynthia Walker and others filed a lawsuit for premises liability and negligence against UME, Inc., which was doing business as Camp Huaco Springs, and WWGAF, which was doing business as Rockin ‘R River Rides and the Rivers brothers. The plaintiffs claimed WWGAF was a joint enterprise with UME and that it was the alter ego of the Rivers brothers. They also claimed that the defendants were aware that floods were likely at the campground, and they should have provided storm warnings and planned for flood awareness. They argued that the defendants should have used sirens to warn them and hired someone to evacuate guests and educate them about risks.

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Published on: June 12, 2016

Statute of Limitations in Texas Minor’s Wrongful Death

By Carabin Shaw

In Durham v. Children’s Medical Center of Dallas, a Texas appellate court considered whether the Texas Constitution’s Open Courts Clause stopped the statute of limitations from running in a deceased 12-year-old’s survival and wrongful death claims against her health care providers.

The case arose from the medical care of the decedent, a 12-year-old girl born in 1993. In 2006, she was seriously hurt in Hawaii. Among other things, the Hawaii doctors found that she had a dilation of the ascending aorta that was not trauma-related. They recommended she follow up with a Texas cardiologist.

She was transferred to the Children’s Medical Center of Dallas with the help of her general pediatrician. However, the pediatrician didn’t see her after her transfer or before she died. She was treated by a Dr. Rupp and a nurse practitioner, and then she was discharged on the same day and told to come back for follow-up orthopedic surgery. That day, she was evaluated by Dr. Copley and then operated on. She stayed at the Children’s Medical Center for a few weeks, receiving care also from Dr. Holland and Dr. Kines, and then she was transferred again to another hospital, Scottish Rite. Two years later, at age 15, she became ill and died of aortic rupture.

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Published on: February 17, 2016

Liability of a Texas Property Owner to an Independent Contractor’s Employee

By Carabin Shaw

In Oiltanking Houston, LP v. Delgado, an employee of an independent contractor hired to work on a pipe by Oiltanking died in an explosion. He was welding a flange on a 24-inch pipe used to transport crude oil. Hydrocarbon fumes ignited, and an explosion occurred, killing the employee and injuring two others.

The employee’s family sued Oiltanking, the owner of the premises and the hirer of the independent contractor, for wrongful death. The victims also sued for personal injuries.

At trial, testimony was provided about the procedures used, the aspects of the process that Oiltanking controlled versus the aspects controlled by the independent contractor, and the events that led up to the explosion. Under Chapter 33 of the Civil Practice and Remedies Code, Oiltanking designated the independent contractor as the responsible third party. However, the judge struck the designation when the evidence closed. Due to this, the jury was asked whether Oiltanking’s negligence was the legal cause of the explosion.

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Published on: December 10, 2015

Limits of Vicarious Liability in Texas

By Carabin Shaw

In Painter v. Sandridge Energy, Inc., a Texas appellate court considered the death of two oil field employees and injuries to a third oil field employee. The workers were doing drilling on behalf of their employer, Amerimex. Amerimex was hired by Sandridge, which had a lease to drill wells at a ranch. The contract described Amerimex as an independent contractor but specified that the crew worked under Sandridge’s control, supervision, and direction. Sandridge was obligated to pay bonuses to the Amerimex employees so that they wouldn’t be hired away by other drillers. Sandridge had an on-site supervisor who stayed in a trailer.

The accident happened after the workers’ shift while they were driving to a bunkhouse 30-40 miles away owned by Amerimex. There was no requirement that the workers live in the bunkhouse or ride with their crew leader to and from the drilling site, but since the crew leader was the only one with a car, they did drive to and from the bunkhouse with him every day. The crew worked in shifts of seven days on and seven days off. While driving, the crew leader ran into the back of another car. Two of the employees were killed, and another was injured. Later, the crew leader testified that nobody at Sandridge gave him any driving instructions.

The decedents’ relatives and the surviving employee sued the other driver in the crash, Amerimex, and Sandridge, the owner of the oil and gas lease. Their petition alleged that Sandridge was responsible for the crew leader’s actions because it gave a financial incentive to the crew leader to transport them in his car. They alternatively alleged the crew leader was the agent of Sandridge due to a transportation bonus, or that he was a “borrowed servant” of Sandridge.

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Published on: December 10, 2015

Suing a Surgeon for Medical Malpractice and Wrongful Death in Texas

By Carabin Shaw

In Pisharodi v. Saldana, a Texas appellate court considered a medical malpractice case arising out of a 54-year-old woman’s death. The lawsuit was brought by the woman’s surviving children against the woman’s neurosurgeon. The neurosurgeon had treated the pain suffered by the woman in her lower back. He prescribed physical therapy, and when that didn’t work, he recommended an epidural pain block and injection in the L4-L5 part of her spine instead of surgery. He performed the procedure on her using morphine, depo medrol, a steroid, and a local anesthetic.

After the procedure, she returned to the neurosurgeon’s office still in pain. Accordingly, he performed a posterior lumbar decompression with a discectomy, fusion, and instrumentation. He discharged her five days after this procedure, sending her to rehabilitation.

Several months later, she came back, complaining once again about lower back pain. He recommended another epidural steroid injection. The same combination of medications was used as the first time. After the procedure, he left her at the clinic and went to assist with a surgery. Later, he got a phone call from his office telling him that she was nauseated and diaphoretic. Emergency services were called. She tried to talk and collapsed without a pulse. The clinic tried cardiopulmonary resuscitation.

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Published on: August 9, 2015

Proximate Cause in a Texas Wrongful Death Case

By Carabin Shaw

In Sinclair v. Estate of Ramirez, the defendant appealed in connection with a verdict entered in favor of a decedent’s estate and his wife in a wrongful death case. The case arose when the decedent finished his welding job and drank 14-18 beers with his coworkers. He and two coworkers went to a nude cabaret, which was 50 miles away, and operated by the defendant. They drank through the evening inside the club. The decedent bought four private dances in a VIP room. At some point, the decedent got aggressive with a dancer. The dancer believed that he intended to rape her and escaped.

The dancer told the defendant. The decedent left the VIP room and asked for a refund. A witness testified that he wanted a refund because he thought he would get more because he paid for dances. The defendant refused to give the refund. The decedent threw a metal box at him. The defendant got a whip from the other side of the bar.

The decedent pushed through some doors, breaking them. To stop him from getting to an area where the defendant stored cash, the defendant ran after him. The decedent charged the defendant, who hit him with the whip. The club DJ pulled the decedent back, and the decedent fell to the floor, stunned. A club patron asked if the defendant wanted the decedent removed. The defendant said yes but later claimed he didn’t tell him to drag the decedent from the club.

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Published on: August 9, 2015

Expert Reports in Wrongful Death Claims Against Healthcare Providers in Texas

By Carabin Shaw

In Nexion Health at Garland, Inc. v. Townsend, a 69-year-old Texas woman was admitted to a rehabilitation center after a back surgery. The center assessed her as a high fall risk with good potential for rehabilitation, and two people were required to assist with transfers. She was found to have deep vein thrombosis in her lower extremities. Bed rest and anticoagulants were ordered. Testing showed some issues with her coagulation, but no further tests were ordered. The woman was not able to balance at one point and sat down on the floor. There were no signs of fracture, but later she was found to have a hematomal bump and suffered from labored breathing.

The woman had to be transferred to a medical center. She was diagnosed with anemia, weakness, tachycardia, and an altered mental status. She was suffering from a hematoma that was secondary to anticoagulation. The ICU admitted her, and she was placed on ventilation and received several blood transfusions, among other things.

She died there. Her estate filed a health care liability suit against the decedent’s treating physician and the rehabilitation center. The estate offered an expert report to support its claims. The rehabilitation center filed objections and moved to dismiss the claim. The objections were overruled and the motion denied.

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Published on: May 3, 2015

Negligent Supervision in Texas

By Carabin Shaw

In ExxonMOBIL Corporation v. Pagayon, the Texas Court of Appeals considered a case in which a man died after a fight between himself, his son, and an employee of the defendant at the defendant’s service station and convenience store. The defendant appealed a judgment in favor of the man’s wife, children, and estate on their wrongful death claims.

Pagayon and Cabulang were employees at a convenience station. They and Pagayon’s father had known each other before the employment. The son had conflicts with Cabulang at work and told both his manager and his father about them. The father phoned Cabulang, and they spoke heatedly about the conflict.

While working together, Cabulang cursed at Pagayon and in Pagayon’s view threatened him and his father. A coworker told the store manager, but the manager simply told the son to stay away from Cabulang. The father came to the store to pick up his son, and Cabulang started a fight with him, hitting him multiple times in the head and back. The father was taken to the hospital emergency room. He was moved to the ICU, and when they tried to wean him from the respirator, he was transferred to a long-term intensive care facility. The father died of respiratory failure, renal failure, and cardiac arrhythmia. The organ failure was caused by sepsis, which is an infection of the blood.

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