Medical malpractice arises when a medical professional or provider commits a medical error or fails to comply with medical standards and requirements when attending to a patient, resulting in the injury or death of the patient. This entails a failure to perform necessary diagnostic or treatment procedures or performing such procedures without the due diligence required of a medical professional. Unfortunately, despite the dangers of medical malpractice, they occur frequently. In 2020, the Texas Medical Board received over 8,000 medical malpractice-related complaints, leading to more than $250,000 in administrative penalties. These figures do not account for many unreported cases and out-of-court settlements.
Medical malpractice errors can be severe and result in extensive injuries to patients, including permanent loss of mobility, loss of enjoyment, and pain and suffering. Due to the severity of such errors, victims have a right to file a medical malpractice lawsuit and claim compensation, as provided under Chapter 47 of the Texas Civil Practice and Remedy Code. Some of the errors that could lead to a medical malpractice lawsuit include:
For example, a medical facility’s failure to provide timely medical care to a patient, which resulted in the patient’s paralysis, was ruled by a Texas District Court to be medical malpractice in the case Robert H. Detrick and Carolyn Dart Detrick v Regent Care Center of San Antonio. However, the term “medical malpractice” should be distinguished from “medical negligence,” although both are often used interchangeably. Medical negligence entails medical errors and reckless conduct stemming from a health provider’s failure to maintain the duty of care they owe their patients, which results in these patients sustaining injuries. On the other hand, medical malpractice covers all medical violations of a healthcare institution or provider against a patient. Such medical violations include any action, inaction, or conduct that disregards medical standards or practice guidelines and that is generally unethical to the medical profession.
As earlier noted, medical malpractice covers any unethical or negligent conduct of a medical professional which results in the injury of a patient or several patients. Essentially, there are several actions or omissions that may constitute medical malpractice. While this is the case, some of the common acts of negligence or malpractice by a nurse, doctor, and medical professionals generally include:
Misdiagnosis/failure to diagnose: This type of medical malpractice happens when a medical professional wrongly diagnose a patient or fails to conduct adequate tests, despite available information and standard medical procedures. This includes the failure to notice symptoms or associate specific symptoms with the correct medical condition and failure to discover a medical condition requiring treatment, resulting in injury or further injuries to the affected patient. Every year, nearly 12 million adults across the United States, including Texas, are victims of medical misdiagnosis, suffering varying degrees of injury.
Improper treatment/failure to provide treatment: This covers situations where a medical professional fails to provide treatment to a patient or provides unsuitable treatment for addressing a diagnosed medical condition. It also covers instances when a medical professional utilizes the least effective treatment method for treating a medical condition while there are more effective alternatives. Allegations of improper treatment account for 27 percent of medical malpractice-related complaints in the United States, ranking third behind allegations of surgical errors and failure to diagnose, respectively.
Surgical errors entail performing surgical procedures without complying with established medical standards or performing such procedures without due diligence. Examples include performing surgery on the wrong body part, forgetting medical instruments in a patient’s body, or administering the wrong dose of medication. Surgical errors can have severe consequences on a patient's health and lead to death if not quickly rectified. Over 4,000 surgical errors occur annually across the United States, including in the State of Texas.
Failure to warn the patient of treatment risks: Medical professionals owe their patients the duty of stating the concerns associated with a treatment procedure, the possible success of this procedure, other available treatment options, and the risks associated with each treatment option. Failure to discharge this duty of warning and counseling is a form of medical malpractice, especially if this results in injury to the affected patient. The reason for this duty is not far-fetched, as patients should have a choice in deciding which medical procedure they prefer, considering their needs, financial capabilities, fears, and medical background.
Hospital-acquired infections: While there are medical standards and requirements in place to ensure hospitals are safe from infections, this is not always the case. According to figures published by the Texas Department of State for Health Services, 4% of patients in Texas get an infection from hospitals. Generally, medical professionals and health providers owe their patients a duty of care to ensure that their facilities are safe and properly sanitized. If they fail to maintain this duty of care and their patients acquire an infection, then this is sufficient cause for commencing a medical malpractice suit or filing a medical malpractice complaint with the appropriate authorities.
In order to successfully prove a medical malpractice case, a would-be complaint needs to establish certain facts, typically referred to as “elements” of the case. Therefore, it is not in all cases where a patient suffers medical injuries that a medical professional or health provider will be held liable. This is especially the case when the medical professional alleged to have caused an injury establishes that they followed all necessary medical standards and procedures, given the circumstances. Essentially, anyone making a medical malpractice claim must prove certain elements that are necessary for imputing culpability on the relevant medical professional or health provider. In this regard, the four primary elements to establish are:
There was a duty of care: A medical professional who undertakes to diagnose, treat, or give medical advice to a person owes this person several duties of care. These duties are provided by law and practice guidelines, one of which is to disclose to the person the risks and hazards associated with a particular medical procedure, as provided in §74.104 of The Texas Civil Practice and Remedy Code. Although there are several duties of care, all boils down to ensuring that a patient receives proper medical care in line with established medical standards and requirements. To qualify as a legitimate complainant in a medical malpractice case, a victim must show that a doctor-patient relationship exists with the allegedly liable medical practitioner or institution. It is this relationship between the medical caregiver and the patient that primarily gives rise to the duty of care that the law requires.
Dereliction of duty of care: After establishing a doctor-patient relationship, a claimant must further establish that the medical professional or health professional breached the duty of care arising from the relationship. A claimant in a medical malpractice case must show that the acts or omissions of the medical professional were improper and noncompliant with obligations imposed by law, practice guidelines, or medical standards. Summarily, dereliction of duty occurs when a medical caregiver either intentionally or inadvertently neglects a patient's care or acts unethically.
The breach of duty resulted in injury: This is another essential element for proving medical malpractice. It entails showing that a medical professional’s breach of duty has resulted in the injury or death of a patient. Such injury may be physical, psychological, or even pecuniary. A claimant who is able to prove injury can claim compensation, which can be in the form of economic, non-economic, or even punitive damages.
Direct Cause: An alleged breach of duty on the part of a medical professional must be linked to the cause of death or injury of an affected patient. A claimant can hardly maintain or successfully handle a medical malpractice case if the actions of the medical caregiver are judged to be too remote to be the cause of the claimant’s injury. An act is said to be too remote when other surrounding circumstances could have caused the injury. The common test for causation is the reasonable foreseeability test, which generally aims to determine whether a medical professional would be able to reasonably foresee that their actions may result in an injury. To successfully prove this element in a medical malpractice case, it would be necessary to obtain the assessment of a medical expert or practitioner.
A statute of repose in Texas medical malpractice cases is a provision of law that specifies the time limit for enforcing a right or making a claim for compensation in court. This is similar to the statute of limitations, but it is more extensive. While the Texas statute for limitation for medical malpractice cases requires that an affected patient commence the case within two years, the statute of repose extends the time limit to ten years. The statute of repose enables victims of a medical malpractice incident who find out the effects of the medical malpractice over two years after the incident to commence a claim for compensation. Essentially, while the statute of limitation in Texas focuses on the time limit for bringing an action relating to medical malpractice before the relevant court, the statute of repose focuses on the time limit for enforcing one’s right to compensation altogether. Therefore, a victim of medical malpractice that fails to commence a medical malpractice case within ten years from the alleged incident is barred and forfeits the right to do so. Nonetheless, it is best for intended claimants to consult a medical malpractice attorney for more information and clarification on this statute of repose and how it may affect their right to file a malpractice lawsuit in court.
An expert report is a written statement by a specialist that provides a fair summary of their professional opinion regarding a situation. In medical malpractice cases in Texas, claimants are required to obtain an expert opinion on their case and serve the expert’s report on the defendant before the case can continue in court. The purpose of an expert report is to provide fair notice of this expert’s testimony, as the expert may be summoned to give witness testimony during the trial. The claimant is required to serve the report within 120 days after the defendant files their original answer, per §74.351 of the Texas Civil Practice and Remedies Code. Failure to comply with this requirement will lead to a dismissal of the lawsuit. A dismissal “with prejudice” implies that the claimant cannot file the case again.
The report to be served on the defendant(s) is to include the resume of each expert listed in the report. The purpose of the expert resume is to show the qualification of the expert, as this lends credence to the testimony. Flowing from §74.351 of the Texas Civil Practice and Remedies Code, the contents of an expert report include:
In addition to being a physician, an expert must;
It should be noted that a claimant can serve several expert reports, and the requirements mentioned above may be varied intermittently.
In Texas medical malpractice lawsuits, several individuals or institutions can be named as defendants. The main question or determining factor to consider is who would the Texas law likely assign medical malpractice liability to, based on the facts of the case. Possible defendants typically include the allegedly liable medical caregiver, the hospital or health facility where the caregiver is employed, or practices. It could also include medical specialists. When filing a medical malpractice lawsuit, the claimant must present their evidence and clearly name the defendants, detailing each defendant’s involvement or contribution to the medical malpractice situation. It is vital to correctly name the defendants as the legitimacy of the medical malpractice claims depends on it. More extensively, below are some possible defendants in a medical malpractice case and the reasons for their inclusion as defendants:
In a medical malpractice case, the primary caregiver is the chief defendant. A medical caregiver typically refers to the person responsible for a patient’s health or treatment. It includes the medical professional who made the medical error that resulted in the patient’s injury. In a medical malpractice suit, the medical caregiver may be just one person or a team of medical professionals, which is common in surgery-related medical malpractice claims. A medical malpractice case usually stems from the actions, inactions, or conduct of the claimant’s medical caregiver, as there must be a doctor-patient relationship or evidence that links the claimant’s injuries to certain medical errors or procedures.
A hospital or health facility can also be included as a defendant in a medical malpractice case. This is usually the case when the liable medical professional is under employment with or is an agent of the hospital or health facility. The hospital or health facility may be held vicariously liable in such instances. Vicarious liability entails imputing the liability of a third party on another person or entity, usually because this person or entity supervises the third party. Examples of situations where a hospital may be vicariously liable are if they did not provide necessary equipment for the liable medical caregiver; if it is proven that the hospital did not perform background checks on the caregiver, and if this caregiver has a record of medical malpractice; if the hospital or health facility failed to attend to initial complaints submitted by the claimant, amongst other instances.
There are situations where a medical professional or hospital may engage the assistance of a specialist to help with diagnosing or treating a patient. If the opinion of this specialist directly resulted in medical negligence or malpractice, and the opinion violated medical standards or practice guidelines, then the specialist may be included as a defendant in the medical malpractice case. Similar to proving that a medical caregiver's actions, inactions, or conduct were improper, a claimant must also prove that the specialist’s opinion or advice was improper and reckless, given the circumstances, the specialist’s knowledge, and established medical standards. In this regard, an expert witness will be necessary. This is mandatory under §74.351 of the Texas Civil Practice and Remedies Code.
While these are usually the defendants in a medical malpractice case, there may be other individuals who should be included as defendants, depending on the circumstances of each case. A medical malpractice attorney is in the best position to advise on who may be named as a defendant in a medical malpractice case
Before filing a medical malpractice claim against a hospital in Texas, the intending claimant must write to the hospital or healthcare provider by sending a notice of litigation. The intending claimant must deliver this notice of litigation to the hospital at least 60 days before filing the medical malpractice case in court, as provided under §74.051 of the Texas Civil Practice and Remedies Code.
Medical malpractice cases can be quite complex and difficult to litigate. Successfully making a claim for medical negligence requires proving several elements that can be difficult to collect evidence to prove.
In a 2016 Senate hearing on the need to improve patient safety and reduce preventable deaths, medical errors were surmised to be a quiet and largely unseen tragedy. It was estimated that between 210,000 and 440,000 Americans die annually due to medical errors and other preventable harm at hospitals. Based on these figures, medical errors could be considered the third-leading cause of death in America, behind heart disease and cancer. Despite the tragedy and prevalence of medical errors and mistakes, it is the case that much of them go unreported.
Medical mistakes go unreported for many reasons. Significantly, the reasons are contributory, and it may be difficult to find a sole or predominant reason. Nonetheless, some of these major reasons include:
Liability concerns: This is mainly on the part of medical professionals, caregivers, and health facilities. These individuals or facilities do not report or document medical errors partly to avoid administrative censure, potential medical malpractice lawsuits, personal shame, and settlement claims from affected patients, especially patients who were initially unaware of the medical negligence. This is due to self-preservation, as admissions of medical malpractice support a claimant’s medical malpractice claim and reduces the need for extensive evidence. Accordingly, only a fraction of hospital staff would voluntarily disclose medical mistakes resulting from their actions or omissions.
Lack of systemic accountability: In Texas, there is no major law or practice guideline requiring medical professionals and health facilities to report medical malpractice cases. As a result of this lack of systemic accountability, there is no compelling reason for these professionals to report any occurrence of medical malpractice. Also, victims of medical malpractice are reluctant to report the issue or institute an action, as this lack of systemic accountability partly results in insufficient administrative or governmental support necessary to ensure complaints are adequately addressed.
Low confidence in administrative systems: To some extent, victims are not motivated to file a medical malpractice lawsuit or at least report medical negligence or error because of the public’s low confidence in administrative systems for addressing such reports. For example, the Texas Medical Board does not publish complaints and investigational information it receives. It only publishes the resulting disciplinary orders. This makes it difficult to follow through on the effectiveness of investigations and compare the rate of disciplinary actions with the rate of complaints filed with the Board. Accordingly, victims of medical malpractice do not have any assurance that their complaints will be looked into and possibly addressed. Besides this lack of transparency, it is also the case that investigations into medical malpractice are infrequent and inconsistent. For example, for the 2020 fiscal year in Texas, the Texas Medical Board opened investigations into only 1,915 medical malpractice complaints out of the nearly 9,000 complaints received. This indicates some level of ineffectiveness in addressing complaints relating to medical malpractice and errors. Even more, the number of investigations conducted keeps declining while complaints are increasing exponentially.
Legislative limit to compensation: Per §74.301 of the Texas Civil Practice and Remedies Code, the maximum amount of non-economic damages a court can award in a medical malpractice case must not exceed $500,000. While there is no express limit to economic damages, such a limit on non-economic damages may likely discourage potential complainants, as they may feel unable to recover adequate compensation for their injuries.
As was earlier noted, the reasons why medical mistakes go unreported in Texas are numerous, some of which are even personal. However, the above-listed reasons are also fundamental, and they contribute to the problem significantly.
By the provisions of §74.301 of the Texas Civil Practice and Remedies Code, there is a restriction on the amount of compensation medical malpractice victims can get from health care professionals, healthcare providers, or institutions in medical malpractice lawsuits. However, this restriction is limited to non-economic damages, as there is no express limitation on economic damages in the law. Non-economic damages are a form of compensation aimed at reimbursing a claimant for losses that cannot be reasonably calculated and are typically non-monetary. This includes compensation for constant pain and suffering, loss of consortium, and emotional distress. Inversely, economic damages aim to compensate a claimant for reasonably calculable losses, which are typically monetary. Such losses include past and future medical care fees, loss of earning capacity, loss of income, and other consequential financial deprivation resulting from a liable party’s action.
Accordingly, Texas caps non-economic damages in medical malpractice lawsuits, and the limits are outlined thus:
Considering this limit on non-economic damages, the strength of a claimant’s claim for compensation in a medical malpractice case will likely depend on how well they prove their entitlement to economic damages.
Generally, a medical malpractice case can be complex, and all these reasons indicate the need to engage a malpractice lawyer before approaching the courts. An experienced medical malpractice attorney understands the complex laws regulating medical malpractice in Texas and can negotiate a favourable settlement on behalf of their clients. To find a Texas medical malpractice attorney, concerned individuals may search online for terms such as "medical malpractice attorney near me" or "medical negligence lawyer near me". The search engine provides results containing the official websites of law firms and lawyers specializing in medical malpractice in Texas. Concerned individuals may also check the state bar association website or use the lawyer referral services of professional bar associations to find the contact information of medical malpractice lawyers or law firms within their locality. Victims looking for a medical malpractice attorney can also ask their families, friends and coworkers for referrals. However, it is important to conduct further research on any referral or recommendation received to ensure that such attorney is best suited to handle one's case.