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  • Writer's pictureNicole Linko


Medical Malpractice cases are one of the most difficult, time intensive, and expensive cases to pursue in our legal system. To be successful on a medical liability case, the claimant must prove each of the following points by a preponderance of the evidence:

a. 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 recognized standards of care.

b. 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; and

c. Proof of damages that resulted from the injury or death.

In most cases, after malpractice has occurred, the victim will be treated by other doctors who were not involved in the malpractice. What those subsequent treaters believe and say can be crucial. Subsequent treating physicians are not only fact witnesses to the important facts, but they are also expert witnesses on such issues of whether the preceding medical treatment or healthcare was below accepted standards of care. If such subsequent treating physicians do not support your case, they are likely to support the case of any healthcare providers who you believe acted negligently. It is very important at the outset to find out what opinions they hold regarding standards of care, whether the conduct of the preceding physicians or healthcare providers was below such standards of care, what specific acts or omissions on the part of such preceding physicians or healthcare providers amounted to a breach of the standard of care, what acts or conduct on the part of the preceding physicians should have occurred which would have prevented the injury that you believe was caused by negligence on the part of the preceding physicians or healthcare providers, and how any such substandard care caused your injuries. If the victim retains the services of expert witnesses to answer all the preceding questions in a fashion which supports your claim for damages, and your own subsequent treating physician(s) contradict such retained expert opinions, your case is significantly weakened.

The victim has the burden of proof. This "burden of proof" is most often an extremely difficult and expensive burden for the victim to sustain. That burden requires the victim to put on evidence that a doctor or nurse acted below accepted standards of care in providing treatment and that such conduct that was below accepted standards of care caused an injury that would not have occurred in the absence of such conduct that was below accepted standards of care.

In Texas all medical malpractice claims are governed by Chapter 74 of the Texas Civil Practices & Remedies Code. That code provides that no lawsuit may be filed until after 60 days from receipt by the negligent healthcare providers of a notice letter. A properly served notice letter will extend the 2-year statute of limitations for an additional 75 days. Once a lawsuit is filed, the victim is required to serve upon each healthcare provider who has been sued a report and curriculum vitae of an expert within 120 days of the date the lawsuit was filed. The requirements for that expert report seem straightforward, but the truth of the matter is that there are many technicalities in getting the reports in compliance with the requirements of the rules. If the expert report is not timely served or if it is deficient, the case will likely be dismissed with prejudice. The rule and the court opinions interpreting the rule and compliance are very harsh and many cases are dismissed with prejudice at the outset without the victim having a chance to have a jury trial.

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