San Antonio Injury Lawyer & Attorney : The McKinney Law Firm : Auto Accidents, Wrongful Death, Work Accidents : Bexar County, Travis County, South Texas

Alex Winslow has graciously granted me permission to repost his excellent Letter to the Editor, which was published in the Wall Street Journal earlier this month, discussing the fact that tort reform here in the great state of Texas has utterly failed to lower health care costs while it has dealt a huge blow to Texans with legitimate claims for serious injuries.  Here is his letter in its entirety:

A few years back, insurance lobbyists rammed through legal changes that were designed to severely limit the legal rights of Texas patients. We heard high-falutin' rhetoric promising dramatic improvements in the cost, quality and access of health care in our state. None of the promised improvements have been realized, but that hasn't stopped special interest think tanks from spinning an intricate yarn in their futile attempt to justify the rights they stole from Texas families ("Cross Country: Why Doctors Are Heading for Texas," May 17 and "Tort Reform Will Rescue Doctors," Letters, June 6).

What has really happened? 1) Health-care costs have risen dramatically in Texas, according to the Robert Wood Johnson Foundation; 2) AMA statistics show that we rank lower in per-capita physicians today than we did just a few years ago; 3) Rural and underserved areas continue to struggle to attract new physicians; 4) Texas continues to have the nation's highest rate of uninsured.

The reality is that none of this has been or ever will be fixed by taking away the legal rights of patients or their families. Unless we move beyond the insurance industry's talking points and enact real reforms that protect patients, strengthen safety standards and restore accountability, we will continue to be plagued by an inadequate health-care system that does more for insurance companies than it does for patients.

N. Alex Winslow
Executive Director
Texas Watch
Austin, Texas

My question: When will Texans say enough is enough and finally stand up for their rights against the big insurance companies and the legislators they control. 

Source:  N. Alex Winslow is the Executive Director of Texas Watch, a non-partisan, advocacy organization working to improve consumer and insurance protections for Texas families.

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Hat Tip to Torts Prof Blog for its coverage of the State of
Kentucky's investigation into the cause of the June 2007 accident in which a teenager lost both of her feet on the 'Superman: Tower of Power' ride at Six Flags Kentucky Kingdom theme park after a cable snapped. 
According to the report:

"The cause of the cable failure has been determined to be fatigue, a progressive  failure of the mechanism. The cable on the ride was  in  a condition that caused the cable to fail  under  its normal load  in operation. It is  impossible to scientifically determine how  long  the cable  had been in a condition that could  lead to the  failure of the cable under  its normal  load. The cables when new are rated to carry at least six times the  load placed upon them during  normal ride operation. Maintenance records provided  by SFKK indicate the cable units and switches were last checked on June 14, 2007, and “no further action was  needed.” However, based on expert opinion, the deteriorating condition of the cable would have been detected using the procedures outlined  in the newer ride  manual.

* * *
The extent of progressive (fatigue) cracking would have  made  it possible  for the 
park personnel to detect the deteriorating condition of the rope had they  been 
following the  inspect ion  instructions given  in the  maintenance  manual.

* * *

The considered opinion of the Kentucky Department of  Agriculture  is the cable condition and ride operator response were the largest factors contributing to the  injuries of the ride patron."

The KDA report included this chilling synopsis of a statement that it was given by the main ride operator:

• The group of three girls rode the ride once without incident. When that ride cycle had ended, the girls got to ride again because there was no line. I remember the same three seats were used the second trip. The seats were checked and the all clear was given. The ride went up.
• After about two seconds I heard a noise like a rollercoaster chain clack. The ride was about eight feet off the ground. When I looked up the cord came out; the cord was flying about. The noise and the cable coming out happened at the same time.
• I called #3333; the park phone number for emergencies. The person answering the phone asked what was going on.
• I reached my head out and around the operator station while I was explaining the situation to the lady on the phone. I told the lady on the phone that the guests were screaming. I was not sure what the people on the ride were screaming due to the volume of noise in the park.
• The lady on the phone said it was normal for riders to scream. I said the screaming was totally different this time because all the riders were screaming.
• I can’t remember what the lady on the telephone was saying. I could see the top of the ride. The other ride operator, at the other panel, told me to hit Estop.
• I hit Estop, but the ride came down normally.
• I noticed a shoe had fallen on the blue covering. I saw the injured girl. I noticed she was blinking. The injured girl had shifted down in her seat, and had a leg up in the air. At first I thought the injured girl was dead, because she was so far down in the seat. I walked over to make sure she wasn’t dead.
• I was still on the phone. I was screaming. The lady on the phone asked questions and tried to get me to calm down.
• Several people came running through the gate and through the line, and began yelling at me. When I hit the Estop that caused the harness system to remain closed. People were yelling at me to let them out, but I needed a technician to do that.
• The other ride operator was screaming, and she left the ride.
• Some woman came up and called the police. The lady on the telephone with me hung up the phone to call for first aid. I then hung up the phone.
• A man named Lou came and got me. Lou took me to Katie; and Rachel took me to the rides office about five to ten minutes after the accident. People talked to me and I gave a statement. The park employees had to find the other ride operator.

The bottom line is that the cables failed due to garden-variety fatigue that was apparently not noticed due to a lack of inspection. 

The State of Kentucky fined the park . . . $1,000.

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The National Highway Traffic Safety Administration is investigating complaints about fires in Ford Windstar minivans that may be related to a defective switch that has been recalled in millions of other Ford vehicles, according to safety data made public on Monday.

The NHTSA opened a preliminary investigation on May 13th into 130 complaints alleging engine compartment fires in Windstar vehicles.

All of the approximately 1.7 million Windstars, which were made between 1995-2003, are included in the investigation.

Thirty six reports were filed with the government within the last year, according to data released by NHTSA. Half the total alleged that a cruise control switch was to blame, but the government has reached no conclusion.

Some of the vehicles were parked while others were moving when the fires broke out.

Ford has recalled about 9.6 million cars and trucks with faulty cruise control switches since the early 1990s. Some of the faulty components have been linked to fires.

With repairs made to only half those vehicles by the start of this year, NHTSA issued an unusual public notice to owners of certain Ford, Lincoln and Mercury vehicles urging them to visit dealers to have the switch disconnected.

"Failure to have the switch disconnected could lead to a vehicle fire at any time," NHTSA said in its notice.

Vehicles recalled for faulty switches include F-150 pickups made between 1993-2004.

Source: Reuters

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On May 14, San Antonio's 4th Court of Appeals reversed a $7.75 million judgment in a case in which the plaintiffs alleged that taking the pain medication Vioxx caused the death of a 71-year-old man in April 2001. A jury in Rio Grande City, Texas, in April 2006 awarded $32 million to the widow of 71-year-old Leonel Garza, a short-term Vioxx user who died of a heart attack in 2001. That award of $7 million for compensatory damages and $25 million for punitive damages was later cut to about $7.75 million under Texas law limiting damages.

On Wednesday, a three-judge panel of the Texas 4th Court of Appeals overturned the verdict, ruling in favor of Merck. The opinion was signed by Justice Sandee Bryan Marion.

Merck had pulled Vioxx off the market in September 2004 after a study determined that the medication doubled the risk of heart attacks and strokes among patients who took it 18 months or more.

As a result of the 4th Court's decision, the Garza family will receive nothing.

Source: Texas Lawyer & AP

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Houston TV station KHOU has a very interesting piece out investigating the correlation between contributions by big business to Supreme Court justices and opinions issued by the Court in favor of these very same companies. 

You can watch the video here and then leave us a comment and tell us what you think. 

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Remember that the insurance company is not your friend.

Insurance companies go out of the way to advertise how fast, neighborly, generous, kind, understanding, patient, and friendly they are -- especially when they are trying to sell you one of their policies. It continues to be true for as long as you make your insurance premium payments on time without asking for anything in return. However, policyholders forced to present a claim often learn that this is more advertising PR than reality. 

If you are injured in an accident, get medical attention immediately. At the same time, to the extent you can you should be keeping a record that will help protect you should you need to file a claim.  File a police report, either at the scene or as soon as possible afterward. Try to get names and contact information from any witnesses. If you’re able, write down exactly what happened as soon as possible after the event.

Accident scene photographs often provide valuable evidence that can’t be duplicated after the fact. And, of course, talk to a a good lawyer as soon as possible so that you can get advice about how to proceed, what kind of records you should be keeping, and how to handle the inevitable phone calls from the insurance company, trying to get you to sign a release. 

Here is a quick checklist:

• Photograph your injuries
• Keep notes, including
  • Medical appointments/treatment
  • Medications
  • Physical Therapy sessions (including progress & limitations)
  • Record lost work time
  • Note pain and limitations
  • Record expenses incurred as a result of injuries/limitations
• Document conversations/information received from
  • Doctors and other medical professionals
  • The insurance company
• Keep all receipts, prescription records, etc.

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    Time and time again, we have run into the same story of drug manufacturers covering up known dangers regarding drugs they develop in order to get FDA approval.  One recent example: The Ortho Ebra birth Control Patch.
 
    According to recent newspaper accounts, Johnson & Johnson obscured evidence for years that its popular Ortho Evra birth control patch delivered much more estrogen than standard birth control pills, potentially increasing the risk of blood clots and strokes, according to internal company documents.  

  But because the Food and Drug Administration approved the patch, the company is arguing in court that it cannot be sued by women who claim that they were injured by the product — even though its old label inaccurately described the amount of estrogen it released.

    This legal argument is called pre-emption. After decades of being dismissed by courts, the tactic now appears to be on the verge of success in the U.S. Supreme Court, lawyers for plaintiffs and drug companies say.

    According to a recent article in the New York Times, documents and e-mail messages from Johnson & Johnson, made public as part of the lawsuits against the company, show that even before the drug agency approved the product in 2001, the company’s own researchers found that the patch delivered far more estrogen each day than low-dose pills. When it reported the results publicly, the company lied and reduced the numbers by 40 percent.
  
    Despite this egregious behavior, however, Johnson & Johnson may be allowed to simply walk away from the harm it caused without any liability whatsoever.  The pre-emption doctrine being argued for by the drug companies and Republicans holds that the F.D.A. is the only agency with enough expertise to regulate drug makers and that its decisions should not be second-guessed by courts.  This would be the case even when the company obtained FDA approval by lying to the agency.  The Supreme Court is to rule on a case next term that could make pre-emption a legal standard for drug cases. The court already ruled in February that many suits against the makers of medical devices like pacemakers are pre-empted.
  
    This means that the hundreds of women that have been injured due to Johnson & Johnson's conduct (and the families of the 50 women whose death has been directly associated with the drug) would have no legal recourse. 

Source: New York Times

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A recent study provides scientific proof that car accident victims aren't nuts, aren't faking, aren't gaming the system; they really are in pain.

In a study published last week in the journal Archives of Surgery, researchers tracked 3,047 patients ages 18 to 84 from 14 U.S. states who survived an acute traumatic injury.  A year after the injury, 63 percent reported that they still experienced pain related to the injury, with most having pain in more than one region of the body.

On average, the patients assessed their pain at 5.5 on a 10-point scale -- a level at which they would be expected to have moderate to severe interference with daily activities.

The American Pain Foundation, a Baltimore-based advocacy group, said the financial cost exacted by chronic pain in the United States -- including health-care expenses, lost income and lost productivity -- is estimated at $100 billion a year.

Source: Reuters

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Nephrogenic systemic fibrosis (NSF) or Nephrogenic fibrosing dermopathy is a rare and serious syndrome that involves fibrosis of skin, joints, eyes, and internal organs. Its cause is associated with exposure to gadolinium (which is frequently used as a contrast substance for MRIs) in patients with severe kidney failure. It does not have a genetic basis.  NSF causes thickening or tightening of the skin and connective tissues, which severely limits a patient’s ability to move, and it also causes pain, muscle weakness, scarring of internal organs and difficulty bending joints. It seems that patients’ lives are potentially at risk because of the damage to their organs, and destroyed by their inability to move.

Last year the FDA asked manufacturers to include a new boxed warning with gadolinium contrast informing health care providers that patients with severe kidney insufficiency who receive gadolinium contrast are at risk for developing NSF/NFD. Additionally, the warning states that patients with liver problems are also at risk for developing NSF/NFD if they are experiencing kidney problems.

Legal action is now being taken against the manufacturers of Gadolinium based on the premise that these companies knew that gadolinium is toxic and, if misused, could lead to serious injury. Accordingly, these companies should have properly designed and tested the gadolinium MRI contrast and given more consideration to vulnerabilities of the different types of patients who would be using the contrast, in this case, patients with kidney disease or renal dysfunction.

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