A medical malpractice claim is governed by Chapter 74 of the Texas Civil Practices & Remedies Code, and the victim must prove the following:
1. The physician acted beneath accepted standards of care applicable to a similarly trained and situated physician (negligence)
2. Such negligence caused the injury
3. Damages caused by the injury
A lawsuit cannot be filed until 60 days after the victim serves a very technical notice letter on the physician(s) or hospital, along with a very technical medical authorization.
If a medical malpractice lawsuit is filed, the victim must serve on the physician(s) or hospital a very technical report from a properly qualified expert which report must describe the specific conduct on the part of the specifically named physician(s) or hospital that was below accepted standards of care, and then explain in very detailed fashion how such conduct caused the complained of injury. Failure to timely serve a proper report will result in the case being dismissed with prejudice.
A claim must be brought within 2 years from the date of the wrongful conduct on the part of the physician(s) or hospital in both a personal injury claim and in a wrongful death claim. There are exceptions if the exact date of the wrongful conduct cannot be determined, or if the injury could not have been discovered within 2 years.
There are severe limitations on the damages the victim can recover. In spite of the fact that the Seventh Amendment of the U.S. Constitution provides “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law” the Texas legislature has placed a cap on non-economic damages of $250,000, nullifying that Constitutional guarantee. There is no arbitrary cap on economic damages, but there is almost always a subrogation lien on medical expenses.
These cases are very expensive and time consuming to bring, and in most cases, if the physician does not consent, a settlement cannot be had.