Medical malpractice occurs when a health care practitioner acts in a manner that isnot consistent with how another practitioner, with the same degree of education and experience, could be expected to act in the same situation. Malpractice can occur as an act ofomission (not doing something) or an act ofcommission (doing something but doing thewrong something).
In order for a medical malpractice action (“lawsuit”) to succeed, theplaintiff (the patient or someone with the legal authority to act in the patient’s behalf) must prove that:
a practitioner/patient relationship existed, creating aduty on the part of the practitioner to act in the best interest of the patient
the practitioner failed to do so and thusbreached that duty
the patient suffered some injury as a consequence of that breach
since the injury would not have occurredexcept for the negligence of the practitioner, the practitioner should pay compensation to the injured patient
It is important to realize that a “less than desirable” response to treatment isnot “proof” that malpractice has occurred. The same holds true for complications of surgery or medical treatment: if the patient is made aware of the potential complications yet consents to treatment, so long as the practitioner promptly recognizes and treats a complication, malpractice has not occurred.
The Texas Statute of Limitations and Medical Malpractice
Inmost cases, the Texas statute of limitations requires that a civil action alleging medical malpractice must be filed within two years of the date on which the alleged act of malpractice occurred. This “two-year rule” can be modified if certain special circumstances are involved. These circumstances are set by state law and include:
The victim of the alleged malpractice was a minor at the time
If the victim was a minor when the injury occurred, a parent or a legal guardian is allowed to file a medical malpractice action on behalf of the victim at any timebefore the victim’s 14th birthday.
If the victim is 14-years-of-age but less than 18-years-of-age at the time of the injury, a parent or a legal guardian is allowed to file a medical malpractice action on behalf of the victim, but the two-year statute of limitations will apply.
Since Texas does not allow a minor to file a legal action on their own behalf, the person filing that action is said to “own” the action. This means that the person filing the action also “owns” any compensation that may be awarded to the minor.
The alleged malpractice was not discovered until a later date
The have been many cases where an act of malpractice is not suspected or detected until several months, or evenyears, afterward. In these situations, Texas courts have held that the two-year statute of limitations begins to “run” from the day the malpractice became known orshould have been known to the victim. The latter situation has been, and continues to be, a matter of “one opinion versus another opinion” and should be evaluated on a case-by-case basis by an experienced medical malpractice lawyer.
The alleged malpractice was committed a government employee
Many health care providers are employed by some branch of Texas government or, more commonly, by a local hospital, clinic, or hospital district. If the provider was a state employee at the time the alleged malpractice occurred, the victim or the victim’s representative must notify the provider withinsix months of the date on which the alleged malpractice occurred.
“Tolling” the statutes of limitations
In law, “tolling” is a legal doctrine which allows the statute of limitations to be extended beyond their usual time limitif certain conditions are present. In Texas, the two-year statute of limitations in a malpractice case can be tolled for 75 days beyond its expirationif the statue of limitations has not expiredand potential defendant is properly notified. This notification must comply with certain provisions of law and should be drafted by a lawyer.
Statute of Repose
Under Texas law, any action relating to medical malpracticemust be filed within 10 years of the date on which the act of alleged malpractice occurred. This statute isabsolute and, once the 10 years have elapsed, no legal action relating to an act of medical malpractice can begin.
Once again, the information presented above was current at the time this page was written (February 2019). Since it is possible that “matters of law” could have been changed by the state legislature or that interpretations of existing laws may have been modified by the courts, it is strongly advised that our page’s current accuracy be confirmed by consulting a currently-practicing medical malpractice lawyer.
Medical malpractice resulting in death
If it is alleged that an act of medical malpractice caused a death, then another set of rules must be considered. Let’s begin with who has the legal right to file a wrongful death action with a Texas court:
The survivingspouse of the deceased
Achild of the deceased, including a child who is an adult when a parent dies
Anadopted child of the deceased, provided that the adoption process was legally completebefore the death of the adoptive parent. Texas lawdoes not allow an adopted child to file a wrongful death action regarding the death of abiological (“natural”) parent, nor can a sibling (biological or adoptive) file a claim regarding the death of another sibling
Aparent of the deceased, even if the deceased was an adult at the time of death
Under certain circumstances, theexecutor oradministrator of the deceased’s estate may file a wrongful death action on the behalf of the estate. These conditions are:
The individual filing the claimmust be the executor named in the deceased’s will or be the court-appointed administrator of the deceased’s estate if the deceased did not have a will.
Three months have elapsed since the date of death.
None of the above-mentioned family members have filed a wrongful death action.
None of the above-mentioned family members havespecifically instructed the executor/administratornot to file a wrongful death action.
Texas law allows any of the above-identified survivors to file a wrongful death claim, either as an individual or as a group. However, onlyone wrongful death claim can be filed by an individual survivor or by a group of survivors. This means that it is legally possible for one survivor, for whatever reason, to file a wrongful death claim as theonly plaintiff and thus prevent the other survivors from filing their own claim (and receiving a share of any damages that may be awarded)!
Damages in medical malpractice
One of the foundations of civil (non-criminal) law is the doctrine oftort, which holds that anyone injured by another party has the right to demand compensation from those whose actions are alleged to have caused an injury. If the responsible party (the “actor”) refuses this demand or offers to pay compensation that is seen as insufficient, the injured victim has the right to ask a court to order that adequate compensation be paid. This compensation is commonly referred to asdamages and can be roughly divided into two general “types:”compensatory damages andpunitive damages.
As the name implies, in a medical malpractice action compensatory damages are intended to “repay” or “compensate” the injured party for his or her losses. Compensatory damages themselves can be of two types:economicdamages andnon-economic.
Economic damages are those that can be documented, and measured, in terms of “dollars and cents.” In general, economic damages are those costs and expenses that can be verified by receipts, bills, statements, or those expenses that can be reasonably expected to occur in the future. Examples of economic damages that may be awarded include, among others:
past, current, and anticipated future medical expenses
loss of past, current, and future wages or other earnings
costs of special modifications to a home or vehicle that may be necessary due to immobility or impaired mobility
replacement or repair of any special medical equipment
if the injury results death, funeral and/or burial costs as well as any legal expenses that may arise from probate or administration of the deceased’s estate
Non-economic damages are those damages that, although they cannot be “documented” as is with economic damages, are considered to be just as real as “hard” damages. Damages in this category include compensation for the “pain and suffering” experienced by the victim, the psychological trauma experienced by the victim’s family, and the loss of the victim’s ability to contribute to the family unit.
Due to their potential legal complexity, these damages must be addressed by a medical malpractice lawyer who has specific knowledge of that case as well as extensive experience in Texas law.
Punitive damages, also calledexemplary damages in some states, are damages that may be awarded to “punish” or to “make an example of” a defendant whose conduct was grossly negligent or was performed with deliberate disregard of the probability that such conduct would injure another. Although awarded relatively infrequently, “excessive” punitive damage awards have been used to justify changes in state law that place limits on certain types of damages.
Non-economic and punitive damages “caps”
Since at least the mid-1970s, the “tort reform” movement has argued that lawsuits and “excessive” damages awarded by juries are the cause of every social evil known to man and that the first step in correcting this “problem” is to “reform” the civil justice system by limiting the amount of damages that can be awarded in a civil lawsuit. Regardless of the merits raised by either side in that debate, Texas is one of the 33 states to have passed laws that impose a limit the compensation that a jury can award after a successful civil lawsuit.
In Texas, the “dollar value” or “dollar amount” of non-economic damages that can be awarded in a successful medical malpractice action is “capped” or “limited” by law. These caps are:
a maximum of $250,000 against a single physician or health care provider
a maximum of $250,000per claimant against a single health care facility (e.g. a hospital or “free-standing” clinic).
a maximum of $500,000per claimant if more than one health care facility was found liable for medical malpractice, but nosingle facility is liable for more than $250,000per claimant.
Texas law also caps the amount of punitive damages that may be awarded by a court. This cap is calculated as follows:
twice (2X) the amount of the economic damages awarded,plus
an amountequal to the amount of non-economic damages awarded, butnot more than $750,000
As with other topics discussed here, we recommend that you consult a medical malpractice lawyer for up-to-date information on the current status of “tort reform” and other factors that may affect your legal right to bring a civil lawsuit.
Contacting a medical malpractice lawyer
As you have seen, medical malpractice cases can easily become quite complex from both a legal point of view as well as their impact on the family as a social unit. During their adjustments to the changes brought about by the injury to, or even the loss of, a family member it is important to work with a medical malpractice lawyer who “looks beyond” the law in order to serve the family. One such lawyer is a medical malpractice lawyer at The Doan Law Firm, a national medical malpractice and personal injury law practice.
At our firm, our commitment to our clients begins when you contact us to arrange a free review of your potential medical malpractice case. Should you decide to file a lawsuit, and that you would like for us to represent you in court, we are willing to assume all costs necessary to prepare your case for trial in exchange for an agreed-upon percentage of the final settlement that we will win for you.