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Medical Malpractice - Standard of Review

Mar 19, 2013 — by Jeff Mundy
Tags: Medical Malpractice

Appellants' claims against appellees are health care liability claims sounding in negligence. The elements of such claims are (1) a legal duty, (2) a breach of that duty, and (3) damages proximately caused by the breach. Columbia Med. Ctr. Subsidiary, L.P. v. Meier, 198 S.W.3d 408, 414 (Tex. App.--Dallas 2006, pet. denied). The standard of care for a health care provider is what an ordinarily prudent health care provider would do under the same or similar circumstances.  Proximate cause encompasses foreseeability and cause in fact. Meier, 198 S.W.3d at 414. Cause in fact is established if the negligent conduct was a substantial factor in bringing about the injuries and, without it, the harm would not have occurred. Id. In a medical-malpractice case, the plaintiff ordinarily must produce expert testimony to establish both the applicable standard of care and proximate causation if those matters are not within the experience of a layperson.

Constitutionality of Municipal Ordinance

Mar 18, 2013 — by Jeff Mundy
Tags: Civil Rights

In United States v. O'Brien, the United States Supreme Court established a four-pronged test for the purpose of determining whether a government regulation is justified and determined that a regulation does not impinge on First Amendment freedom of expression if: (1) the regulation is within the constitutional power of the government; (2) the regulation furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id.; Fantasy Ranch Inc. v. City of Arlington, Texas, 459 F.3d 546, 554 (5th Cir. 2006).

Car Wreck Law - Non-Use of Seatbelt

Mar 18, 2013 — by Jeff Mundy
Tags: Car Wreck


... it was well established in Texas jurisprudence that such evidence did not constitute contributory negligence, nor was it properly considered as a means to mitigate damages. 

Medical Malpractice - Nurse Malpractice

Mar 17, 2013 — by Jeff Mundy
Tags: Medical Malpractice

Medical malpractice also differs from ordinary negligence in the circumstances under which a duty arises.  In an ordinary negligence case, the duty to refrain from negligently injuring others requires no prior relationship.  Professionals, on other hand, do not owe a duty to exercise their particular talents, knowledge, and skill on behalf of every person they encounter.  "As is true of all callings, physicians are not obligated to practice their profession or render services to everyone who asks." It is only with the physician's express or implied consent that the physician-patient relationship is created. 

Military Personal Injury Law

Mar 17, 2013 — by Jeff Mundy
Tags: Personal Injury

Originally, the FTCA afforded tort victims a remedy against the United States, but did not preclude lawsuits against individual tortfeasors. Judgment against the United States in an FTCA action would bar a subsequent action against the federal employee whose conduct gave rise to the claim, 28 U. S. C. §2676, but plaintiffs were not obliged to proceed exclusively against the Government. They could sue as sole or joint defendants federal employees alleged to have acted tortiously in the course of performing their official duties.

Contract and Construction Law, Damages

Mar 16, 2013 — by Jeff Mundy
Tags: Contract Law

As a general rule, a plaintiff seeking "to recover the reasonable value of services rendered or materials supplied will be permitted to recover in quantum meruit only when there is no express contract covering those services or materials." Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988) [Emphasis added]. "There are instances when recovery in quantum meruit is permitted despite the existence of an express contract that covers the subject matter of the claim." Id. [Emphasis added]. In a dispute involving a contract case, such as the one here, a breaching plaintiff may recover in quantum meruit for the reasonable value of services less any damages suffered by the defendant. Id. at 937. "Central to the contractor's right to recover in quantum meruit is the owner's acceptance and retention of the benefits arising as a direct result of the contractor's partial performance." Id. [Emphasis added].

Texas Riparian Rights & Texas Class Action law

Mar 16, 2013 — by Jeff Mundy
Tags: Land Use

Because the State owns the riverbeds and the minerals underneath the riverbeds in Texas, the boundary of the riverbed is critical in determining the rights of the State, riparian mineral interest owners, and riparian surface owners. See TEX. PARKS & WILD. CODE § 1.011(c); see also TEX. NAT. RES. CODE §§ 11.041(a)(1), 51.011 (providing that the Permanent School Fund includes the mineral estate in riverbeds).

Psychiatric Malpractice - Texas Supreme Court


To determine whether the actions of the defendants in Dowell proximately caused Dowell's suicide we analyzed both factors of the cause-in-fact element of proximate cause: whether the actions were a substantial factor in bringing about the suicide and whether, but for the actions, the suicide would not have occurred. In this case we need only consider the but-for factor. That is, we consider whether the evidence is legally sufficient to support the finding that absent the negligence of Dr. Rodriguez-Escobar-but for his negligence-Goss would not have committed suicide.

Rodriguez-Escobar v. Goss (Texas Supreme Court 2013)

Land Use, Vested Rights, and Government Takings

Mar 15, 2013 — by Jeff Mundy
Tags: Land Use

A vested rights permit insulates pending development from most future ordinance changes. But certain floodplain regulation changes apply retroactively even against vested rights holders. See TEX. LOC. GOV'T CODE §§ 245.002, 245.004(9).

Texas Whistleblower Act

Mar 15, 2013 — by Jeff Mundy
Tags: Whistleblower


Section 554.002 of the Whistleblower Act provides:

(a) A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.

(b) In this section, a report is made to an appropriate law enforcement authority if the authority is part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to:

(1) regulate under or enforce the law alleged to be violated in the report; or

(2) investigate or prosecute a violation of criminal law.


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