Articles Posted in Wrongful Death

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The Texas Court of Appeals recently considered a wrongful death claim allegedly arising out of medical malpractice. The plaintiff had filed a survival and wrongful death lawsuit against a hospital, claiming it was negligent and grossly negligent in treating the plaintiff in 2014. The hospital answered, denying all of the allegations included in the plaintiff’s lawsuit.

The plaintiff served an expert report from a nurse on the hospital after that. The hospital moved to dismiss the nurse’s report on the ground that she wasn’t qualified to offer opinions about causation. The plaintiff responded by asking for 30 days to fix the deficiencies in the report. The court sustained the hospital’s objections and granted a 30-day extension to fix the report defects. Trying to fix the deficiencies, the plaintiff served the report of a doctor on the hospital.

The hospital sought to dismiss and objected to the expert reports. It argued that the doctor didn’t explain the necessary ways in which there had been a breach in the professional standard of care and how that caused the injury. It also argued that the doctor’s report simply asserted that the staff had allowed the tracheostomy tube to get dislodged, and there was no detail to support this claim.

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In a recent Texas Supreme Court decision, the Court considered a wrongful death that arose from a fistfight. Two cashiers, one of them J.R., worked at a Houston convenience store owned by a gas corporation. Two others also worked there, along with a manager. J.R.’s father had previously worked there, but he had moved on to working as a tollbooth attendant. He’d asked the manager to hire his son. The other cashier also knew the father, who drove him to and from work.

J.R. believed everyone got along until someone asked him if he was having a sexual affair with another man who worked there. J.R. felt harassed and complained. While J.R. was working at the convenience store alone, two customers complained that there was an “out of order” sign on the men’s restroom door. J.R. checked and found that the restroom wasn’t out of order, and he believed that the guy who’d harassed him before was doing it again. He complained about the coworker to his father, who called and told the coworker to stop harassing his son.

On another day when the father took him to work, the coworker came in and began threatening J.R. Things calmed down for the rest of the day, but later the coworker attacked the father and beat him up. The fight ended, but the father couldn’t breathe and had to be taken to the ER. The ER physicians misinterpreted a dark space on the X-ray and found that the left lung had filled with fluid. They tried multiple times to put in a chest tube to drain away the fluid. Eventually, the father’s condition went downhill, and sepsis resulted. He died for multiple reasons, but among the reasons was probably sepsis-caused organ failure.

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In a 2016 Texas Supreme Court case, the Court considered an error in 911 dispatching that resulted in a wrongful death lawsuit.

The case arose from two early morning 911 calls. The calls came from two different numbers but were within 10 minutes of each other and came from the same building. Both asked for help for a drug overdose victim, but the calls were about two different victims. The second call was placed shortly before 3:00 a.m. and concerned the plaintiffs’ child. A 911 dispatcher got information about the emergency and the apartment number and told the caller that the emergency responders were on the way. The call was disconnected.

After the responders got to the building to help the drug overdose victim who was the subject of the first call, they mistakenly determined that the second call was about the same victim. They didn’t go to the plaintiffs’ son’s apartment to help him, and he died shortly before 9:00 a.m.

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In a recent Texas work injury case, the court considered a case in which a man was fatally injured while working on a drilling rig that was drilling a well on a lease owned by a company. The survivors of the man sued the company as well as his employer, claiming negligence and premises liability.

The company was the owner or operator of oil and gas leases and had contracted with the man’s employer, a drilling company, to drill a well on its mineral lease. The decedent and other rig hands were rigging up the rig to prepare for drilling. The decedent was working in the cellar, a substructure area of the rig, trying to repair a pipe that worked to vacuum fluid from the cellar.

He and other rig hands used a catline to lift the cellar jet line to make the repairs. While using the catline, it got caught in the cathead, causing the cellar jet line to rise suddenly and hit him in the head. This caused his death.

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A recent Texas appellate case concerns a cement truck crash that resulted in the driver’s death. The plaintiffs in the case argued that the crash was due to a failure of the front tire on the truck. They sued the tire manufacturer as well as the company that owned the cement truck.

During discovery, they asked the manufacturer to produce certain tire building machines that were used to put the liner and steel belts into the tires. The manufacturer objected and argued, among other things, that it asked for data that was confidential or a trade secret.

The plaintiffs moved to compel production of the tire building machines in order to compel discovery filed by Goodyear. The manufacturer responded with its manager’s declaration that the tires in question had stopped being produced in 2010 and that none of the tires now being produced had the same specs as the subject tire.

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In Knox v. Rana, a Texas appellate court considered the wrongful death claim of a woman’s children against the cancer center where she’d been treated. The woman had survived endometrial and breast cancers and was getting radiation treatment from a defendant doctor for a basal cell carcinoma lesion on her nose. The doctor ordered a PET scan, based on the woman’s prior history of cancer. The scan showed she had a mass that seemed like metastatic disease in her pelvis. However, the doctor never told her this or ordered her to obtain treatment.

Later, the defendants would provide evidence that the mother was informed about the worrisome nature of the mass in her pelvis and was asked to get a follow-up in three months. She didn’t undergo the follow-up and in 2012 was diagnosed with metastatic cancer. She passed away in 2013 at age 76, due to her metastatic cancer.

The woman’s children filed a lawsuit against the doctor and cancer center. The defendants filed a motion for summary judgment. The lower court granted the motion. The children appealed. The appellate court explained that the Texas Supreme Court had held that the Wrongful Death Act authorizes recovery for injuries that actually cause death, rather than those that cause less-than-even odds of avoiding death.

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In Jacobs Engineering Group, Inc. v. Elsey, two engineering companies appealed the trial court’s denial of a motion to dismiss the plaintiffs’ wrongful death lawsuit. Their argument was that the plaintiffs had failed to file a certificate of merit as required by section 150.002 of the Texas Civil Practices and Remedies Code.

The case arose upon the wrongful death of a man who worked as a sound engineer for 30 years, most of the time for Lockheed Martin and Jacobs Engineering, but also for NASA. The decedent built structures for testing in the acoustics lab. All of the construction was performed at the direction of the defendants. In bringing their lawsuit, the man’s surviving family argued that when he constructed these structures, he wasn’t given the appropriate personal protective equipment to work with various materials that contained carcinogens.

The family also alleged the decedent had come home every day covered in a dust that contained carcinogens that led to his getting cancer and dying. Although he’d been provided uniforms because the defendants knew he’d be covered in fine dust, he hadn’t been given protective equipment like face masks.

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In JSC Lake Highlands Operations, LP v. Miller, a Texas appellate court considered causation in a wrongful death case. The case arose when a woman was discharged from the hospital and admitted to JSC (the defendant’s facility) for rehabilitation. The following month, she received a phone call from her daughter, who thought she sounded strange. That evening, she told the staff that her dental bridge was missing, but the staff couldn’t find it.

The staff called the woman’s other daughter and told her that her mother was upset about losing the bridge. The daughter sent her husband to look for the bridge at the facility. He couldn’t locate it. The daughter spoke to her mother that evening and thought that her voice sounded raspy. The woman started coughing and showing chest congestion shortly thereafter. A doctor ordered a chest x-ray and Robitussin. The staff didn’t tell him her bridge was missing.

The chest x-ray said little more than that the heart was normal in size and configuration. The doctor was told of the results and ordered medication. The woman was found unresponsive in her room early in the morning. She was brought to the hospital but was unresponsive with seizure-like movements.

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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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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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