Medical Malpractice

ELEMENTS OF A MERITORIOUS MEDICAL MALPRACTICE CASE

   To be successful on a medical liability case, the injured party must prove each of the following points by a preponderance of the evidence:

• That the medical or health care provider was negligent in the care and treatment of the patient. This is accomplished by showing the medical or health care provider's care fell below a legally recognized standard of reasonable and prudent medical and health care;
   
• That any such negligence was a proximate cause of the occurrence or injury or death involved in the case. This means that it should have been foreseeable to a reasonable medical or health care provider that the alleged negligent conduct could result in an injury to the patient; and, that in this instance the patient sustained injuries which, in reasonable medical probability, would not have been sustained but for the negligence of the defendant medical or health care provider;
   
• That a specific amount of money damages, if any, would fairly and reasonably compensate, the injured party for the injuries and damages he or she sustained in the past, and/or will probably sustain in the future, as a result of the occurrence or injury or death in issue.

   In the vast majority of cases, proving that a health care provider acted negligently and that the negligence proximately caused the injury and damages requires that an expert in the particular field of health care testify under oath, on the record that the health care provider was negligent and that the negligence proximately caused the complained of injury. This area of law is very technical.

   Of course, other theories of medical or health care liability may also apply depending upon the factual and legal circumstances of the particular case. In some cases, the complained of injuries and damages are caused by some combination of physician negligence, nursing negligence, hospital negligence, a defective product, or a drug defect.

   This “burden of proof” is most often an extremely difficult and expensive burden for a medical or health care malpractice victim to sustain. As a practical matter, both the liability and damage evidence must be compelling for a medical liability lawsuit to be successful. For this reason, medical liability cases are among the most difficult civil liability cases to win in court.

   Whatever future course you choose to follow, please keep in mind that the Texas Civil Practice & Remedies Code, §74.001 et seq. contains important new provisions:

Pre-suit Notice

§74.051 provides that an injured party or claimant shall give written notice of such claim by certified mail, return receipt requested, to each physician or health care provider against whom such claim is being made at least 60 days before the filing of a suit in any court of this state based upon a health care liability claim.  The notice must be accompanied by the authorization form for release of protected health information as required under Section 74.052.

Statute of Limitations

§74.251 provides that (a) notwithstanding any other law and subject to Subsection (b), no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or 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; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided this section applies to all persons regardless of minority or other legal disability and (b)  A claimant must bring a health care liability claim not later than 10 years after the date of the act or omission that gives rise to the claim.  This subsection is intended as a statute of repose so that all claims must be brought within 10 years or they are time barred.

Expert Reports

§74.351 provides that the claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.

If you would like to file a complaint with the Texas State Board of Medical Examiners against the doctor involved in the potential claim you can call (800) 201-9353 for recorded instructions on how to proceed.  Each complaint is investigated and may go to formal hearing and possible disciplinary action against the doctor involved.  For information regarding past disciplinary actions against a particular doctor, call (800) 248-4062.