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When we become ill, we rarely pause to consider whether or not our health care provider is following the “accepted” or “customary” treatment methods appropriate to our condition. In the majority of instances we are treated, we get better, and we go our separate ways. There are times, however, that this is not the case and our medical practitioner will make an error in judgement or in procedure and we are harmed rather than helped. When this happens, medical malpractice has occurred and we have the right to hold the practitioner liable for their actions.

What is medical malpractice?

In its general sense, medical malpractice occurs when a health care practitioner does not provide the standard of care that would be expected of other practitioners with similar professional training and experience under the same circumstances. However, under our system of civil law, if the alleged act of malpractice did not directly lead to an injury, a medical malpractice lawsuit cannot be filed.

In the “real world,” the legal definition of medical malpractice can be quite confusing. Visitors to our website who desire more information on this topic are invited to visit the “What is medical malpractice?” section of our Texas Law and Medical Malpractice page.

Are drug “side effects” and/or “defective” medical equipment considered medical malpractice?

Most of have seen the “lawyer ads” that seem to be the bread and butter of late-night television. These ads suggest that if you were prescribed this medication or if your doctor used a particular type of implanted device to replace you bad hip or knee, “You may be eligible for compensation …” To put it politely, these ads are “misleading” and are not medical malpractice lawsuits!

These ads represent what are called defective medical product lawsuits and are directed against the companies that manufacture things such as medications, medical equipment, and artificial joints that are implanted during surgery. Since these lawsuits target the corporations that made the defective drugs or devices rather than the practitioner who prescribed or implanted a product, they do not imply medical malpractice.

Who can file a medical malpractice lawsuit

Under Texas law, not just anyone can file a lawsuit. Texas courts will demand that you prove three things before they allow a medical malpractice lawsuit to proceed:

    1. you have “standing”
      Standing means the court recognizes your claim of injury (from the tradition of the English judges deciding who could “stand before the bar” to argue a case). In general, the order of standing begins with you, then your spouse and children, followed by your siblings.
    2. you suffered an injury
      The court will require that you have suffered an actual injury and that you name those you hold responsible (“liable”) for that injury.
    3. the statute of limitations has not expired

Texas law generally requires that medical malpractice lawsuits be filed within two years of the date on which the alleged malpractice occurred.

The requirements presented above is presented in very general terms and there are numerous special situations where another rule may come into play. You should always speak to an Austin personal injury attorney to discuss the details of your specific case. Please see our Texas Law and Medical Malpractice page for a more detailed look at these topics.

Damages and medical malpractice

Every state allows an individual who is injured or suffers some loss to demand damages from the party whose reckless conduct was responsible for the injury. Texas courts recognize two types of damages: compensatory damages and punitive damages.

  1. Compensatory damages
    These are damages are awarded to “pay you back” for the financial losses you suffered. In Texas, compensatory damages are themselves divided into two types:economic damages or non-economic damages.

    • Economic damages are documented by such things as medical bills and estimates of expenses that you are likely to experience in the future. Economic expenses can also include wages and other income that you lost due to your injury and other similar expenses, provided you can show that such expenses are directly related to your injury.
    • Non-economic damages are awarded for losses that are “subjective” (hard to value in terms of “dollars and cents”). The most familiar types of non-economic damages are those awarded for “pain and suffering.”
  2. On the other hand, punitive damages are awarded to “punish” or “make an example of” those whose negligence caused you to suffer unnecessarily. In theory, at least, punitive damages are intended to discourage others from acting in the same manner. Whether punitive damages are effective in that role is hotly debated, but the fear that juries might award “excessive” punitive damages are at the heart of the Texas legislature’s “tort reform” laws.

Under Texas law, the amount of damages that can be awarded is limited (“capped”) depending on their type:

  • Economic compensatory damages are not capped
  • Non-economic (“pain and suffering”) compensatory damages are “capped,” with this “cap” calculated using different rules depending on the “specifics” of each individual lawsuit.
  • Punitive damages are “capped” at either $200,000or twice (2X) the amount of the economic damages plus the amount of non-economic damages awarded butnot more than $750,000 for a single event

For more information on damages in medical malpractice, please see the “Damages in medical malpractice” section on our Texas Law and Medical Malpractice page.

Why you need an Austin medical malpractice lawyer

In the State of Texas, proving that you were a victim of medical malpractice is only half of the battle to secure fair compensation for your injuries and other losses. Under the Texas “tort reform” laws, the corporations that control everything from which doctor you can see to the price of the medications that you are prescribed are trying to protect their “bottom line” by limiting the amount of compensation that you can collect if you are injured by their negligence!

If you suspect that you were injured by medical malpractice, The Doan Law Firm is ready to stand with you and fight to protect your legal right to demand compensation from those whose negligence caused harm.

When you contact The Doan Law Firm, your case review and your first consultation with our medical malpractice lawyer are always free of charge and do not require you to hire us to act as your attorney. Should you decide to file a lawsuit, and that you would like to have us represent you in court, we are willing to assume full responsibility for all aspects of preparing your case for trial in exchange for an agreed-upon percentage of the final settlement that we will win for you.

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