San Antonio Personal Injury Lawyer - Miscellaneous

Meeting Tonight in San Antonio for Cyclists to Voice Their Concerns

Beth Janicek — Wed, 14 Oct 2009 12:51:19 GMT

After three people were struck and killed within a week of each other while cycling legally, cyclists and pedestrians are asking what can be done to improve safety. Tonight, a Metropolitan Planning Organization (MPO) meeting will be held so people can come and voice their concerns. The MPO has a Bicycle Mobility Advisory Committee that is charged with conducting a continuous planning process to improve transportation systems.

Currently, Texas does not have any safe passing laws or any set penalties in the case of an accident. Recently, the Safe Passing Bill was surprisingly vetoed by Governor Rick Perry. He said,

“While I am in favor of measures that make our roads safer for everyone, this bill contradicts much of the current statute and places the liability and responsibility on the operator of a motor vehicle when encountering one of these vulnerable road users. In addition, an operator of a motor vehicle is already subject to penalties when he or she is at fault for causing a collision or operating recklessly, whether it is against a ‘vulnerable user' or not.”

The veto outraged the bill’s supporters, who argued that the point was to make drivers aware that they have to share the road.

Rep. Linda Harper-Brown, R-Irving, who sponsored the legislation said,

“We know that cyclists and motorcyclists and tow truck drivers are more vulnerable and by passing this law you are acknowledging that…I think people forget cyclists have a right to our roadway.”

She went on to say that victims and their families again feel victimized when they learn that the legal system doesn’t automatically consider what happened to them a crime.

Since I am an avid cyclist and jogger, this is an issue that I have blogged on frequently. I am always surprised by the amount of responses received from people on both sides of the argument. Safe Passing Laws are usually controversial and many people are very passionate about them. For more information on the meeting go to the Bicycle Mobility Advisory Committee link on the Metropolitan Planning Organization website.

Originally posted at InjuryBoard by Beth Janicek

Geriatric Specialists

Beth Janicek — Thu, 27 Aug 2009 17:24:26 GMT

Geriatric specialist plays important role in aiding the aging population who need specialized medical care. America needs to work to expand people coming into this field especially with our growing elderly population. According to the New York Times, a new program is allowing medical students to experience life as a nursing home patient by living in a nursing home for two weeks. Students are given a “diagnosis” of an ailment and are expected to live as someone with that condition does. They must learn how to navigate a wheelchair around the small rooms, be helped to and from the bathroom, and sleep through night checks just like every other resident.

Dr. Marilyn Gugliucci, the director of geriatrics education at the medical school said that nursing homes in the region were willing to participate and students were willing to volunteer. Rita Morgan, administrator of the Sarah Neuman Center for Healthcare and Rehabilitation said,

“My motivation is really to have somebody from the inside tell us what it’s like to be a resident.”

Geriatric specialists hope that this program will help generate interest in the profession. Due to the fact that medical schools and residencies require little to no geriatric training and because it is among the lowest paying fields, Geriatrics is one of the most underrepresented fields in medicine. According to the American Geriatrics Society, in 2005 there was one geriatrician for every 5,000 people over 65, and by 2030 that ratio is expected to increase to one for every 8,000 patients. In 2007, only 253 of 400 fellowships were filled, and only 91 of the physicians graduated from medical school in the United States.

Ms. Murphy, a medical student at the University of New England who participated in this program initially thought that nursing homes were scary. Her first few days at the nursing home included filling out paperwork, undergoing a full-body mole and sore check, eating pureed foods, and being raised out of bed with a lift. She said,

“At times I felt really lonely and got depressed. Sometimes it was an emotional roller coaster, up and down, up and down.”

Ms. Murphy realized that many of the patients cried because they knew that they would most likely never live anywhere else, or because they missed family and their old life. This program solidified her desire to work with older people, and she believes that the lessons she learned will make her become a better doctor.

Originally posted at InjuryBoard by Beth Janicek

Charging Texas Nurses Sends a Bad Signal to All Whistleblowers

Beth Janicek — Mon, 27 Jul 2009 13:24:02 GMT

The indictment of two registered nurses in West Texas that I recently blogged about, has set a bad precedent and could have a negative effect on all whistleblowers in the medical profession. The two registered nurses were charged with misuse of official information for including patient’s medical record numbers in their anonymous complaint to the Texas Medical Board.

The Texas Medical Board has since sent a letter to Winkler County Officials informing them that it is improper to prosecute anyone for raising complaints with them. It also notes that under federal law the Texas Medical Board is exempt from Health Insurance Portability Accountability Act requirements, therefore no HIPAA laws were violated and the board’s records are exempt from subpoena.

The law is supposed to protect nurses who report people for violating regulations, and if upper management fires a nurse for reporting illegal behavior then the nurse can file a claim seeking compensation. This is commonly referred to as a “Whistleblower claim” or “Retaliation claim.” These claims are especially important in the health care community to protect patients, and everyone should have immunity from prosecution for raising legitimate concerns.

Originally posted at InjuryBoard by Beth Janicek

Texas nurses facing third-degree felony charges after filing complaint

Beth Janicek — Fri, 24 Jul 2009 14:12:36 GMT

Two West Texas nurses, 53-year-old- Vickie Galle and 51-year-old Anne Mitchell, have been indicted after filing an anonymous complaint about a local doctor’s practices with the Texas Medical Board. The nurses have been fired and charged with misuse of official information, a third degree felony punishable by up to 10 years behind bars, and a $10,000 fine. The indictment alleges that they improperly accessed information that was not public “with intent to harm” the doctor for “a nongovernmental purpose.”

The nurses’ complaints stated that Dr. Rolando Arafiles encouraged patients that he saw at the Winkler County Memorial Hospital emergency room and the county’s rural health clinic to buy herbal medicines from him, and that the hospital’s chief of staff stopped Dr. Arafiles from taking supplies to perform a procedure at a patient’s home. The Texas Medical Board defended the nurses’ actions and said that it is the board’s state-mandated duty to look into such complaints. Mari Robinson, executive director for the Texas Medical Board said,

“I don’t know that I’ve ever seen a criminal prosecution for providing information to the medical board. Ever.”

The American Nurses Association and the Texas Nurses Association are concerned about a “chilling effect” on other nurses. They said that nurses file complaints all the time, but this is the first time they have ever faced criminal charges. Rebecca Patton, the American Nursing Association president said,

“It’s outrageous to file criminal felony charges against these nurses based on allegations that they raised concerns over a physician’s actions. Nurses have a duty to advocate for the health and safety of their patients, and that is what these nurses were doing.”

Clair Jordan, executive director of the Texas Nurses Association said,

“This particular hospital is alleged to have a policy that they don’t allow anyone to report outside the facility, which we believe is violation of the law.”

She further said that nurses are required by law to report questionable physicians to the Texas Medical Board, who then looks at the physicians practice and makes the decision.

After being notified by the board that he was under investigation for mistreatment and poor quality of care Dr. Arafiles filed a harassment complaint with the Winkler Sheriff’s Department. The Sheriff’s office figured out who had filed the complaint, and the local prosecutor filed charges.

The Texas Nurses Association is raising money to help with Galle and Mitchell’s legal defense, and the American Nurses Association is also supporting them in their fight. These two nurses were courageous enough to make a report on something that they thought was wrong, and are being harshly punished for it. Both nurses lost their jobs, and could end up behind bars for up to 10 years. This is a prime example of what is wrong with the medical profession, and this story should be getting extensive coverage at the national level.

You can look at your Physician’s profile to check for possible complaints with the Texas Medical Board here.

Originally posted at InjuryBoard by Beth Janicek

Boaters Beware!

Beth Janicek — Fri, 12 Jun 2009 12:55:49 GMT

With Memorial Day behind us and the Texas heat in full force, more and more people will be found out on the lake. Once summer hits, I personally hit the lake almost every weekend and I am aware of the boating laws and responsibilities but was totally naive to something called “boaters hypnosis.” According to an article entitled “Boat Safe without the Influence of Drugs and Alcohol” describes boater’s hypnosis as follows:

Boaters are exposed to significant “stressors.” These are wind, sun, glare, noise, motion from the water, and vibration. Research has proven that as little as four hours of exposure to these stressors produces “boater’s hypnosis.” Boater’s hypnosis is a type of fatigue that slows operator reaction time comparable to that exhibited by an intoxicated person.

In 2007 the top five primary contributing factors in accidents were operator inattention, careless/reckless operation, passenger/skier behavior, excessive speed, and alcohol use. The article “Boat Safe without the Influence of Drugs and Alcohol” states that a recent study conducted in four southeastern states estimated that alcohol was a contributing factor in 51% of motorboat fatalities in these states. On average the subjects were males, 21 to 40 years of age, and were in small open motorboats and non-powered craft. Important to note is that the study found that passengers had the same risk of dying as the driver, regardless of whether the boat was underway. The article also states that a boat operator with a Blood Alcohol Concentration above 0.10 is more than 10 times more likely to be killed in a boating accident than a boat operator who has not consumed alcohol.

According to the Texas Parks and Wildlife Department, a person who either appears to be impaired and/or has a blood alcohol level of 0.08 or higher while operating a boat can be arrested for Boating While Intoxicated (BWI). A person arrested for BWI may be jailed for up to 180 days, be fined up to $2,000, or both. The person’s driver’s license may also be suspended.

The Handbook of Texas Boating Laws and Responsibilities website conveys the rules associated with boating accidents and casualties. An operator involved in a boating accident must:

· Stop his or her vessel immediately at the scene of the accident and…

· Assist anyone injured or in danger from the accident, unless doing so would seriously endanger his or her own vessel or passengers and…

· Give, in writing, his or her name, address, and vessel identification to anyone injured and to the owner of any property damaged by the accident.

In addition, vessel operators involved in an accident must report the accident by the quickest means possible if it has resulted in:

· Death or…

· The disappearance of a person from a vessel under circumstances that indicate death or injury or…

· Injury requiring medical treatment beyond first aid or…

· Property damage exceeding $500 to all vessels, docks, etc. involved in the accident.

Boating is a fun, popular activity during summer months, but due to other peoples' carelessness it can become very dangerous. Therefore, it is extremely important to learn how to prevent accidents, as well as to review all pertinent safety tips, laws, and regulations regarding boating.

Originally posted at InjuryBoard by Beth Janicek

Ambulance Chasers

Beth Janicek — Wed, 06 May 2009 12:29:38 GMT

In the San Antonio Express News, John MacCormack wrote about barratry by trial lawyers. Barratry is the unlawful solicitation of clients by lawyers. Lawyers are not allowed to contact a potential client and seek to represent them in a case. There are several bills before the Texas Legislature which support further penalty and restrictions to prevent trial lawyers from soliciting cases. MacCormack also discussed that lawyers in South Texas are suing one another claiming the other trial lawyers has solicited the case in violation of the rules of professional responsibility that govern all lawyers. These claims have increased and if successful require a forfeiture of fees by the attorney who violated the rules. In other words, if an attorney illegally solicits the case then settles the case the attorney would have to forfeit the fees associated.

This has been a long standing problem for trial lawyers. The illegal solicitation destroys the image of the trial lawyer and harms the ethical trial lawyers business. As a member of the board of directors of the San Antonio Trial Lawyers Association, we recently amended our membership application to require members to affirm they do not participate in barratry. One could argue the rule is outdated and should be changed to allow an even playing field for trial lawyers to be able to solicit cases. The argument is similar to legalizing drugs. The problem with doing away with the rule is the public would get completely inundated with solicitations and further damage being done to the trial lawyer image.

Good attorneys do not violate the rules and solicit cases. A few attorneys are causing great damage to our profession. Every profession has the unethical few that damage the reputation of the group. However, the damage is worse when the profession professes to protect the victims actually preys on them. Good trial lawyers want the behavior stopped so that the public can see the positive benefits that trial lawyers do for society. Hopefully, the Texas Legislature passes additional restrictions and penalties and the lawsuits continue against those who violate the rules of ethics.

Originally posted at InjuryBoard by Beth Janicek

Funeral Home Company Accused of Abusing Corpses

Beth Janicek — Mon, 27 Apr 2009 13:13:00 GMT

A Virginia funeral home is being sued by the family of a deceased Army veteran for mishandling the man’s body. The family claims that the body was left in an unrefrigerated garage for over two months while awaiting burial at Arlington National Cemetery. The family is seeking $60 million in damages from the National Funeral Home and its parent company, Houston based Service Corp. International, according to the New York Times.

This is not the first allegation of corpse mishandling made against SCI. In December 2003 SCI settled a class action lawsuit in Florida for $100 million. That suit involved approximately 700 families who claimed that the company’s cemeteries had misplace bodies, lost track of plots, and dug up remains so new graves could be marked.

Another lawsuit has been filed against SCI in Virginia regarding the family members who were traumatized by the reopening of their loved one’s grave. There are other Whistleblower lawsuits that have been filed claiming the corpses had been stored in garages and kept in unsanitary conditions.

In Texas there is a “special relationship” between a funeral home and its patrons, which gives rise to a recognized duty of the funeral home to perform its service adequately. This duty can be violated in a variety of ways, which may result in a family having a claim for damages due to treatment of the deceased. For example the law provides that the remains in a plot can only be removed with the written consent of the current plot owner. Other cases in Texas have centered on mishandling the corpse. Some of the cases are about the funeral home director not following the contract while others have stated the wrong corpse was used during the burial.

Death is such a difficult time for the families involved and when funeral homes disregard your wishes it makes it that much more difficult to bring families to closure.

Originally posted at InjuryBoard by Beth Janicek

3 Jailed, 3 More Wanted in “Fight Club” Case

Beth Janicek — Mon, 16 Mar 2009 10:51:49 GMT

There have been some new developments in the “fight club” case in the Corpus Christi State School. As of Friday, Corpus Christi Police have arrested three of the six state workers accused of forcing mentally disabled residents into “fight-club” style brawls. In custody are Vince Johnson, 21, Timothy Dixon, 30, and Stephanie Garza, 21. Police are still seeking Jesse Salazar, 21, Guadalupe Delarosa, 21, and Dangelo Riley, 22.

Criminal charges against the six stem from allegations that for more than a year workers forced disabled residents into orchestrated, late-night fights. The employees were caught after videos of at least 20 fights were discovered on a cell phone that was lost and turned in to police. Four of the videos show residents sustaining injuries from these fights.

Johnson, Dixon (the owner of the cell phone), Salazar, Delarosa, and Riley are all charged with injury to a disabled person. Garza is charged with a state jail felony for allegedly failing to intervene to stop the fights. Arrest warrants allege that five of the employees encouraged, filmed or narrated these fights. Dangelo Riley is seen kicking a resident during a fight, and Timothy Dixon is accused of doing most of the filming and narration on his personal phone.

Since the “fight club” scandal surfaced the Department of Aging and Disability Services have made surprise overnight visits to every dorm in every state school. Gov. Rick Perry has ordered the installation of video cameras, the hiring of security guards, and adding overnight supervisors at all facilities.

Lawmakers are moving quickly to enact emergency state school safety legislation, which passed the Senate on Monday and got a hearing before the House Human Services Committee on Thursday. Rep. Patrick Rose, D-Dripping Springs, told agency officials, “I encourage you to do everything you can right now, and I’m disappointed that we haven’t done more.” The bill would create an ombudsman to oversee abuse and neglect investigations, and would require employees to submit to random drug tests and fingerprinting.

Advocates for people with disabilities say that security guards and surveillance is only a “Band-aid” on a system that is in crisis. The system is so strapped for cash that it is forced to hire inexperienced, unprofessional employees, and these new measures do not go far enough. I agree. I do not think creating an ombudsman is going to solve the problem. We have TDADS watching over nursing homes and they do little in investigating and preventing abuse and neglect of another vulnerable group, the elderly.

Originally posted at InjuryBoard by Beth Janicek

“Fight club” Investigated at Home For the Disabled

Beth Janicek — Thu, 12 Mar 2009 14:57:36 GMT

Seven employees at a state-run home for the mentally disabled in Corpus Christi have been suspended for staging a "fight club" where disabled residents were forced to shove, punch, and strike each other.

Corpus Christi Police Captain Tim Wilson said that the fight club was uncovered when someone gave a cell phone containing videos of the fights to an off-duty police officer. The videos, which date back to 2007, show mentally disabled male clients fighting each other while the employees watched.

Wilson said, “It’s pretty appalling. I’ve been in police work over 30 years and I’ve never seen anything like this. These people who were charged with caring for these clients were exploiting them for entertainment.”

The videos show seven current and four former employees, most of which have been identified. The current employees have been placed on emergency leave pending the investigation and charges are expected to be filed later this week.

Laura Albrecht, a spokeswoman for the Texas Department of Aging and Disability Services, which oversees state school institutions said, “Any abuse or neglect of residents placed in our care will not be tolerated.”

In addition to the Corpus Christi Police, the abuse allegations are being investigated by Texas Adult Protective Services, the Health and Human Services’ office of Inspector General, and the Nueces County District Attorney.

These allegations are just the latest claims of abuse to surface in the long-troubled state school system. They come as the Texas Legislature has begun taking measures to improve these institutions. These measures include requiring fingerprinting, background checks, and random drug testing of all state school employees. Lawmakers even want to create an ombudsman to investigate injuries and deaths and to oversee an abuse-and-neglect hot line.

These measures, while they are a step in the right direction, are not enough to improve these troubled institutions. People with disabilities deserve the same amount of respect and care that anyone would expect to receive; and it is important to take every measure possible to make sure that they are well taken care of. Governmental immunity will protect these employees and the state hospital from a personal injury claim by any patients injured by this incident.

Originally posted at InjuryBoard by Beth Janicek

Snakebite at Wal-Mart

Beth Janicek — Tue, 17 Feb 2009 11:28:32 GMT

In Florida, a lawsuit was recently filed regarding a snakebite a man received while shopping at Wal-Mart. The attorney for the man said that they should have taken steps to prevent these attacks since there were two previous snake attacks at another store. Years ago, I had a similar case against Wal-Mart. My client was bitten by a snake at a Wal-Mart store outside of San Antonio. The jury found Wal-Mart negligent and awarded my client monetary damages. The case was frustrating because Wal-Mart never wanted to pay for the damages until the jury ordered them to do it. They spent their time and money investigating my client in attempt to prove that he was a snake handler and had brought the snake into the store. They never entered any evidence regarding him being a snake handler but their investigator had gone through the community asking friends and family about him being a snake handler. Hopefully, Wal-Mart will take responsibility for this incident without requiring a jury to do it.

Originally posted at InjuryBoard by Beth Janicek