The medical malpractice lawyers at Harmonson Law Firm are among the leading medical malpractice lawyers in the El Paso, Texas area. Every day, we are asked to review potential medical malpractice claims against local doctors, hospitals and other healthcare providers like nurses, physicians’ assistants and nurse practitioners.
This guide will provide a brief overview of the Texas laws with respect to medical malpractice cases.
What is medical malpractice?
Medical malpractice is the legal term for when a healthcare professional does some action that is:
- Not typical of their medical practice; and
- Somehow injures a patient.
What is the law that governs medical malpractice lawsuits in Texas?
Texas medical malpractice is governed by Chapter 74 of the Texas Civil Practice and Remedies Code. Chapter 74 defines the rules and laws that govern “healthcare liability claims” in the State of Texas. If the claim is a “healthcare liability claim” according to Chapter 74, there are some procedural hurdles to overcome and, sometimes, caps on the amount of damages that an injured person can recover.
What claims are considered medical malpractice?
All healthcare liability claims are governed by Chapter 74. A “healthcare liability claim” is
“a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.”
In other words, someone files a healthcare liability claim when they believe their healthcare provider has done something not only outside of typical healthcare provider behavior, but something that actively harmed the person who filed the claim (or someone filed it on their behalf).
Virtually all claims involving healthcare are governed by the Texas medical malpractice statute Chapter 74.
Some examples of medical malpractice claims in the State of Texas include:
- Diagnosis errors (misdiagnosis and lack of diagnosis, where a victim may have left the hospital without the treatment they need or received treatment for the wrong issue)
- Surgical errors (the wrong body part, leaving surgical tools inside the body)
- Medication errors (incorrect prescriptions or dosage amounts, or a lack of medication altogether)
- Negligent treatment (a mistake that a competent doctor would not reasonably make)
- Failure to warn (of risks post-surgery, side effects of a perscription, etc.)
What healthcare providers are included in this law?
All healthcare providers, of every sort and type, fall under the protections of Chapter 74. Healthcare providers that are specifically included in the definition of a healthcare provider include:
- Registered nurses
- Optometrists, and
- Health care institutions, which include:
- Hospitals and hospital systems,
- Surgical centers
- Assisted living facilities
- EMS service providers
- Hospice centers
- Nursing homes
- Facilities for the intellectually disabled, and
- Dialysis centers
(Note: The directors, officers, partners, members, employees and independent contractors of these facilities and healthcare providers are included in the definition.)
Essentially, all conduct that relates to healthcare by any type of healthcare provider is governed by the Texas medical malpractice laws found in Chapter 74. These laws are designed to protect doctors, hospitals and other healthcare providers.
In order to successfully win a medical malpractice case, you’ll need an experienced medical malpractice lawyer who knows the ins and outs of this code.
What is a tort or a breach, and how are they related to medical malpractice?
A tort is the legal term for the action (or inaction) that causes someone to suffer harm and allows them to seek a civil lawsuit against the person or persons who caused them harm. Torts are often unintended, but they are always civil actions, not criminal actions. Some examples of torts include:
- Car accidents
- Invasion of privacy
- Wrongful death
- Medical malpractice
Separately, a breach is a legal term when someone refuses to act according to their duty (or, in some cases, breaks their word). The most common use of a breach in legal terms is a breach of contract, but there are other examples, as well:
- Breach of duty
- Breach of trust
- Breach of peace
- Breach of close
- Breach of warranty
- Breach of promise
Both torts and breaches have relevance in the world of medical malpractice, which is why we’ll be using these terms occasionally throughout this guide.
Do I have to give notice of a claim before filing a medical malpractice lawsuit?
Yes, you are required to provide a pre-suit notice. Written notice of a healthcare liability claim should be mailed, with a return receipt requested, to each physician and healthcare provider against whom a claim is made at least 60 days prior to the filing of a lawsuit in Texas based on a medical malpractice claim. The injured person is also required to fill out and sign an authorization (included with the notice letter), which provides information about the claimant’s medical history and allows the physician or healthcare provider to gather relevant medical records.
If a person does not provide the required notice letter, the court can abate (pause) a medical malpractice lawsuit until such notice is provided.
Perhaps the only benefit to an injured claimant found in Chapter 74 is that once the notice letter has been sent to one doctor, healthcare provider or healthcare institution, the statute of limitations is extended 75 days as to any and all potential defendants.
Do I have to provide evidence of my claim to a Court as a condition to filing a lawsuit?
Once each defendant doctor or healthcare provider has received notification of the lawsuit and filed an answer to the lawsuit, the claimant (the injured party) has 120 days to respond with an expert report. In Texas medical malpractice lawsuits, this expert report must provide a fair summary of the expert’s opinions concerning the following three issues:
- The applicable standard of care
- The manner in which the physician or healthcare provider breached the standard of care
- The casual relationship between the breach of the standard of care and the injuries, harm or damage claimed
The expert report must be written by one or more experts.
In a claim against a physician, only another physician can act as an expert to write the report. That physician must have the requisite qualifications to discuss the care rendered and must be practicing medicine at the time the testimony is given (or was practicing at the time the claim arose).
In claims against non-physician healthcare providers, a physician is not required to discuss the standard of care; however, the expert needs to have the necessary qualifications, education and training to render opinions as to the standard of care. For example, a nurse with education, experience and training in labor and delivery can opine as to the negligence of another nurse in a case involving the labor and delivery department of a hospital.
A physician is required to opine as to the casual relationship between the breach of the standard of care and the injury, harm or damage claimed in every expert report. Hence, in every expert report, a physician must testify as to “causation”.
There are numerous Texas Supreme Court cases that have analyzed every aspect of the expert report requirements.
What happens if I fail to file the expert report?
If the expert report is not filed or is found to be deficient, the court is required to award attorney’s fees and costs against the injured claimant and dismiss the lawsuit against the provider without the possibility of refiling the lawsuit.
It is very important to get the expert report right and timely filed. That’s why we counsel people injured by medical malpractice to hire a lawyer that knows the laws concerning the expert report and has studied these requirements in depth – so that the claim is not dismissed by the court.
Are there any caps on the amount of damages that can be recovered in a Texas medical malpractice claim?
Yes, there are significant caps that can be recovered for non-economic damages.
The cap in Texas is $250,000.00 for non-economic damages in any lawsuit against one or more doctors or healthcare providers, regardless of the number of defendant doctors or healthcare providers. If one or more hospital or other healthcare institution is involved in the lawsuit, there is an additional $250,000 in non-economic damages that can be recovered against each hospital or healthcare institution with a total of $500,000 aggregate maximum that can be recovered against all hospitals and healthcare institutions.
However, the caps on damages only apply to non-economic damages. Non-economic damages include:
- pain and suffering
- mental anguish
- physical impairment
For those types of “intangible” damages, the above caps apply. There are no caps on economic damages. Economic damages include items such as past and future medical expenses, lost earnings and loss of earning capacity and loss of household services.
In a wrongful death or survival lawsuit, in addition to the above caps, there is a maximum cap of $500,000 (which is adjusted for inflation).
What is the statute of limitations for this type of claim in Texas?
A statute of limitations is a law that governs the time limit for filing a lawsuit.
In Texas, the statute of limitations for filing a medical malpractice lawsuit is two years from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed. So, for example, if something happened to you at a hospital on December 3 of 2020, you would only have until December 3 of 2022 to file your medical malpractice lawsuit with the help of an experienced attorney.
The statute also provides that for minors under the age of 12, the statute of limitations is extended until the minors 14th birthday. (However, because of constitutional issues, it is believed that the statute of limitations for a minor will not run until 2 years from the minor’s eighteenth birthday.)
Can the statute of limitations be extended?
There are some ways in which the statute of limitations may be lengthened, such as in cases where the injury is not discovered until after 2 years from the date of the tort. For example, the discovery rule may extend the statute of limitations when a retained sponge is left inside a patient after a medical procedure and is not found until many years later.
What is the statute of repose for medical malpractice in Texas?
There is also a state of repose of ten years. A statute of repose is an absolute bar to recovery after a set amount of time. So, for medical malpractice in Texas, the statute of repose is ten years from the date of the tort or breach.
Are medical malpractice suits common?
Doctors, nurses, and everyone who takes part in the healthcare system perform amazing feats all the time, but at the end of the day, they’re just human. Plenty of mistakes are made, and many go unreported. There’s no legal requirement for doctors to admit their mistakes, after all.
The Johns Hopkins University School of Medicine found in 2013 that there were 250,000 deaths due to medical error that year. That makes these types of deaths more common than many types of diseases and even car accidents.
The Texas Medical Board receives more than 7,000 complaints each year from patients regarding health care providers, but even for the cases that are investigated and found to have merit, no compensation is given to the victims.
In fact, Texas medical malpractice insurers reportedly pay less compensation to claimants than in other states. But because of the capped damages victims can receive, many lawyers are unwilling to put in the time and effort to help victims recover them.
That’s why you need a legal team who’s willing to fight for you every step of the way – getting you the treatment you need and the money you deserve.
Contact Harmonson Law Firm today
We hope that this guide answers some of the basic questions you may have about a potential medical malpractice claim for you or your loved one. If you have any questions about your specific situation, please feel to call and ask to speak with one of our medical malpractice lawyers at (915) 584-8777 or submit your claim here.