Archives for the month of: March, 2015

If you are the victim of medical malpractice, you may want to consider requesting copies of your medical records immediately. Obviously, any attorney you contact will need the records to assist them in determining whether you have a case. Not so obvious, however, is the need to protect yourself from destruction or alteration of the records. Believe it or not, there are some healthcare providers, although not many, who will alter records by either adding favorable information to support their claim that they did nothing wrong or by deleting unfavorable information that will establish they were guilty of medical negligence. Sometimes such alterations do not occur until after you have hired an attorney and put the healthcare provider on notice of your claim. By having the original set, you will be able to establish that an alteration has occurred. When obtaining medical records from a hospital, you can reduce the cost by requesting records on a CD, digital or other electronic medium pursuant to Section 241.154(b)(3) of the Texas Health and Safety Code. The retrieval or processing fee may not exceed $75 (which can be adjusted upward for inflation so expect a slightly higher rate) and the actual cost of mailing or shipping. I look forward to visiting with you next time.

Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood & Cartwright, P.C.

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With the recent snow storms in the Northeast, an interesting issue is raised that many people may not know about. Most people believe that if you slip and fall on ice outside of a store that you are entering, the owner is automatically liable to you, including for your medical expenses. Not necessarily so in Texas. In such instances, whether a premises owner/operator is liable to you will depend on the facts and circumstances of how that ice got there. To start with, it should be noted that premises owners and operators do owe a duty to keep their premises safe for invitees against conditions on the property that pose unreasonable risks of harm. This duty, however, does not render the business premises owner or operator an insurer of the invitee’s safety. Thus, to prevail as the invitee plaintiff in a slip-and-fall case, the injured person has to prove (1) actual or constructive knowledge of some condition on the premises by the owner/operator; (2) the condition posed an unreasonable risk of harm; (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner/operator’s failure to use such care proximately caused the plaintiff’s injuries. Importantly, if you were the person who slipped and fell in the scenario that we have presented, you would have to show the ice upon which you fell was an unreasonably dangerous condition. If there was no unreasonably dangerous condition, then, as a matter of law, the store owner/operation owed you no duty, and you could not recover on your slip and fall claim. One could argue that ice as a matter of common sense automatically presents an unreasonably dangerous condition; however, this is not the law in Texas. Whether ice poses an unreasonably dangerous condition or not depends on how it got there. In Texas, courts hold that naturally occurring ice that accumulates without the assistance or involvement of unnatural contact is not an unreasonably dangerous condition sufficient to support a premises liability claim. A natural accumulation of ice is one that accumulates as a result of an act of nature, and an unnatural accumulation refers to causes and factors other than inclement weather conditions (i.e., to causes other than the meteorological forces of nature). So does that mean then that if the owner/operator takes any steps to remove any ice accumulations that he will then be liable, as opposed to just leaving the ice alone to avoid
liability? The answer is no. Salting, shoveling, or applying a chemical deicer to a natural ice accumulation does not transform it into an unnatural one. Courts typically hold that to find otherwise would punish business owners who, as a courtesy to invitees, attempt to make their premises safe. Similarly, ice that melts and later refreezes is still deemed a natural accumulation. In short, in order to hold an owner or operator of the business premises liable, you will have to establish that the presence of the ice was not the result of natural accumulation, which in some instances can be a difficult burden. To determine if you have a case, you need to consult with a qualified personal injury trial attorney. Therefore, please feel free to contact me at 940.891.0003 to set up a cost-free consultation to discuss your case. *Please note that this Blog applies only to invitees, and not licensees (for example, going to your neighbor’s for a social gathering) or trespassers, which impose different duties on the premises owner than in situations involving invitees. Again, you should consult with qualified counsel to determine if you fall within these categories and how such classifications may impact your case. I Iook forward to visiting with you next time.

Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood & Cartwright, P.C.