Nursing Home Negligence Attorney Alex R. Hernandez Jr.

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Alex R. Hernandez Jr.

In Texas, the patient alleging negligence against a nursing home must generally prove Plaintiff elements or legal requirements to make out a successful claim of negligence to even get to a proper wrongful death claim much like a medical malpractice liability claim. Evidence of simple negligence will not satisfy the burden of proof, which may not be shifted to the defendant. TEX.CIV.PRAC. & REM.CODE ANN. § 41.003(b).

Simple Negligence is Not Enough

Simple negligence is not a cause of action against any nursing home, medical provider or other healthcare facility it must be something more, it must be gross negligence. “Gross negligence” means more than momentary thoughtlessness, inadvertence or error of judgment. It means such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected. TEX.CIV.PRAC. & REM.CODE ANN. § 41.001(5)).

Gross Negligence Must Be Proven In a Nursing Home Case

To prove gross negligence, the plaintiff must first establish that the ‘s act or omission fell below the standard of care would have fulfilled under the same or similar circumstances; the plaintiff must then prove that the act or omission departed from that standard to such an extent that the patient was subjected to an extreme degree of risk of harm. Nowzaradan v. Ryans (App. 14 Dist. 2011) 347 S.W.3d 734. The “extreme degree of risk” factor is a significantly higher standard than the “reasonable person” test for ordinary negligence. Moriel,879 S.W.2d at 22. The risk must be one that the defendant creates. Id. at 22 (citing Wal–Mart, 868 S.W.2d at 326 (“[T]he defendant must have actual awareness of the extreme risk created by his or her conduct.”)). To determine if acts or omissions involve extreme risk, we must analyze the events and circumstances from the defendant’s perspective at the time the harm occurred without resorting to hindsight. Id. at 23. The risk created by the defendant’s conduct must have been so extreme as to have created the “likelihood of serious injury” to the person affected. Universal Servs. Co. v. Ung, 904 S.W.2d 638, 642 (Tex.1995). The extreme risk prong is not satisfied by a remote possibility of injury or even a high probability of minor harm, but rather it requires the likelihood of serious injury to the plaintiff. Moriel, 879 S.W.2d at 22. Extreme risk of harm is a function of both the magnitude and the probability of the anticipated injury to the plaintiff. Id. Before a gross negligence finding can be sustained, the evidence must show both that the conduct was likely to result in serious harm and that the defendant was consciously indifferent to the risk of harm. Moriel, 879 S.W.2d at 22. The focus, in the second prong of the test, on the defendant’s mental state requires that “the actor, although not actually intending to cause harm, must have proceeded with knowledge that harm was a ‘highly probable consequence.’ ” Wal–Mart, 868 S.W.2d at 325.

Ulcers and Negligent Care

A Stage I ulcer is evident when the skin has persistent redness in a certain area caused by pressure, and the redness does not disappear within sixty minutes after the pressure has been released. Stage II is not clearly defined, and an ulcer may progress directly to Stage III. An ulcer is classified as Stage III when it breaks open to expose fat under the skin, and if bone or muscle is exposed, it is a Stage IV. Convalescent Services, Inc. v. Schultz, Court of Appeals of Texas, Houston (14th Dist.).March 14, 1996921 S.W.2d 731.

Stage IV ulcers can be serious and negligent on the nursing home if they are not taken care of immediately with certain types of care. Sepsis could set in and cause permanent injuries and death.

If you or a loved one is a victim of nursing home negligence call our law firm today