What to do After Discovering a Medical Malpractice In Texas?

It may be difficult to determine the best course of action after discovering a person’s injuries are due to medical malpractice, as victims or their relatives might have to grapple with understanding how their injuries or the death of a loved one is tied to medical negligence or errors. An important starting point is to understand their legal rights and obligations as victims or relatives of victims of medical malpractice.

Victims of medical malpractice have a statutory right to file a malpractice claim and request compensation against the at-fault medical staff or medical facility, but they must also:

• Notify the at-fault medical staff or facility: After discovering a medical malpractice situation, §74.051 of the Texas Civil Practice and Remedies Code requires the victim to notify the liable medical professional or facility of the malpractice incident at least 60 days before filing a claim. This notice does not begin a lawsuit process but makes the relevant professional or facility aware of a possible lawsuit. The requirement aims to facilitate possible party-driven negotiations and out-of-court settlements.
  
• Keep all medical records: This includes all documents showing there was a doctor-patient relationship with the physician or medical facility. Such documents include appointment cards, medical bills, and medical reports. When filing a malpractice complaint or commencing a malpractice lawsuit, such documents are considered in assessing the extent of the physician’s duty of care and the failure to maintain this duty. The existence of a duty of care, failure to maintain the duty, and the resulting injury are necessary factors for making a successful complaint or lawsuit against a medical staff or facility for malpractice. 
  
• Seek better health care: This is necessary for the victim of medical malpractice, especially after they have notified the medical staff or facility of their injuries and concerns, and the medical facility has offered no solutions. In order to avoid further or more debilitating injuries, it is best to seek better health care. However, ensure to keep records of expenses incurred from receiving such health care. During a medical malpractice lawsuit or settlement negotiations, such expenses may be recovered from the at-fault party.
  
• Report to the appropriate agency: The Texas Medical Board and the Texas Health and Human Services Commission regulate medical professionals and medical facilities respectively, in Texas. Reporting a medical staff or facility to the appropriate Agency is crucial when the medical professional or medical facility has failed to take steps to correct the medical error or negligence. Although these Agencies perform oversight functions, filing a complaint with them does not guarantee getting compensation. Nonetheless, the complaint may result in the investigation of the relevant professional or medical facility and possibly lead to sanctions. These sanctions include administrative fines and revocation of operational or medical licenses. 
  
• Contact a medical malpractice attorney: Generally, filing a complaint against a doctor or commencing a medical malpractice lawsuit can be intricate, with different requirements. Failure to adhere to these requirements may lead to the dismissal of the complaint or lawsuit. Hence, after discovering a medical malpractice situation, it is also best to contact a medical malpractice attorney. Besides helping to assess the situation and decide the extent of compensation a victim deserves, an attorney will also guide a victim against inadvertent admissions, low settlement agreements, and intimidation, amongst other issues. In addition, a malpractice attorney will advise their client on other crucial matters that are peculiar to their case. Therefore, while an attorney is not mandatory for pursuing a medical malpractice complaint or lawsuit, it is advisable to involve one. After contacting a medical malpractice lawyer, it is generally essential to furnish this attorney with copies of medical reports, medical bills, and other medical-related documents that can determine the extent of the liable professional’s negligence and the financial losses incurred as a result.
  
  

Where the victim of the medical malpractice is a minor, the situation is a bit different. In such instances, the minor is below the legally permissible age to formally file a medical malpractice complaint or commence a lawsuit. Usually, it is the person responsible for the minor’s care that can take all of the necessary steps related to addressing the medical malpractice. This person can either be the minor’s parents or a guardian ad litem. A guardian ad litem refers to a court-appointed guardian. 

Similarly, where the injuries from the medical malpractice result in the victim’s death, certain relatives may request compensation from the at-fault medical staff or medical facility. This is done by filing a wrongful death claim. However, the relatives entitled to file a wrongful death lawsuit in Texas are restricted to the victim’s surviving spouse, children, and parents. 

How do I Report Medical Malpractice in Texas?

Generally, after discovering a medical malpractice situation, it is best to notify the relevant medical professional first. However, after being notified, if this professional refuses to assess the situation and offers no redress or offers ineffective solutions, a victim may report to the Texas Medical Board. The Texas Medical Board offers complainants online and mail-in complaint options. Complainants can submit their complaints to the Board online by filling and submitting an online complaint form. To submit a complaint by mail, a complainant must obtain a printable complaint form, which is available in English or Spanish, and mail the completed form to the appropriate address, using the appropriate mail code. Alternatively, anyone interested in filing a complaint can contact the Texas Medical Board’s complaint hotline at 1-800-201-9353, request a complaint form by following the automated prompts, and mail in the completed form. For inquiries or assistance with filing a complaint, interested persons may contact the Board’s customer service by email or by phone at (800) 248-4062 or (512) 305-7030 for individuals within Texas and outside Texas, respectively. 

When filing a malpractice complaint, complainants are advised to include their full name, the address where the medical professional practices, the date of the incident, and specific details about the incident. The Board may not attend to anonymous complaints. Although the complaint should contain relevant details, it should also be concise and straightforward. Considering how intricate filing a complaint can get, speaking with a medical malpractice lawyer is advisable. A malpractice attorney can help highlight the elements of a complaint that are necessary and those that should not be included, amongst other things. 

How do I File a Complaint with the Texas Department of Health? 

In certain circumstances, it may be necessary to file a complaint against a health facility, such as a hospital or nursing home. Such circumstances include when the medical malpractice was due to the facility’s negligence or the negligence of the facility’s employee. Examples of a hospital’s negligence include failure to provide necessary medical supplies, failure to properly ensure the qualification of their staff, and non-compliance with medical standards that result in a patient’s injury. However, the process for reporting a medical staff is different from reporting a medical or health facility. 

The agency responsible for receiving complaints against medical facilities is the Texas Health and Human Services Commission. The Commission oversees several medical facilities, including abortion centers, clinical laboratories, intermediate care facilities, hospice, and nursing homes. Individuals interested in filing a complaint against any of the medical facilities the Commission oversees can do so online, by mail, email, or fax. To file a malpractice complaint online, complainants can utilize the TULIP complaints submission portal. Complainants who need assistance with navigating this portal can explore the portal’s training guide made available by the Commission. Similarly, to file a complaint by mail, the relevant complainant must write out their complaint and mail it to:

Health and Human Services Commission
Complaint and Incident Intake
Mail Code E-249
P.O. Box 149030
Austin, Texas 78714-9030

Note that when filing a complaint by email or fax, there are separate complaint email and fax addresses for chemical dependency treatment facilities. To file a complaint against a chemical dependency treatment facility by email or fax, complainants must put their complaints in writing and email them or fax them to (833) 709-5735. Alternatively, complainants may utilize the complaint hotline for such facilities by dialing 1-800-458-9858 and choosing the Option 6 prompt. On the other hand, to file a complaint against other facilities, a complainant must also write out this complaint and either email it or fax it to (833) 709-5735. In the alternative, complainants may file their complaint through the complaint hotline for other facilities by dialing 1-800-458-9858 and choosing the Option 5 prompt. Agents are available only between 7:00 a.m. and 7:00 p.m., Mondays through Fridays, to respond to calls put through any of the complaint hotlines.

When making a malpractice complaint, complainants are advised to include:

• Their names, addresses; and daytime reachable phone numbers; 
• Their relationship with the victim, where applicable; 
• The names of the victim; 
• The name and address of the health facility; 
• A concise but detailed explanation of the medical malpractice incident; and other necessary information that can help investigate the health facility and the incident. 
  
  

While the Commission receives anonymous complaints, complainants are advised not to submit complaints anonymously, as the Commission may be unable to provide the results of investigations to anonymous complainants. 

Generally, the online complaint portal is the better platform for submitting a complaint, as it is easier to track complaints on this platform, and complaints filed online are typically received by the Commission quicker than complaints filed through other mediums. For inquiries or assistance with filing a complaint, interested persons can contact the relevant customer service hotline of the Commission.

Who Can File a Complaint or Sue for Medical Malpractice in Texas?

In Texas, only the victim of a medical malpractice case or the victim’s estate can sue for medical malpractice, per §74.001 of the Texas Civil Practice and Remedies Code. However, when a medical malpractice occurrence causes a patient’s death, their surviving spouse, children, or parents can sue the liable medical professional or facility through a wrongful death claim and request compensation. A wrongful death attorney can help with filing a wrongful death lawsuit in line with the requirements stipulated in §71.004 of the Texas Civil Practice and Remedies Code. 

What do I Need to Know About Making an Injury Claim Under the Texas Tort Claims Act?

The Texas Tort Claims Act (TTCA) refers to certain provisions of the Texas Civil Practice and Remedies Code that outlines the circumstances whereby a governmental entity may be liable for actions or accidents which result in personal injury or property damage. These provisions are contained in Chapter 101 of the Code and serve as exceptions to the immunity of governmental entities to some civil claims. Per §101.021 of the Texas Civil Practice and Remedies Code, a government unit or entity is liable in the following circumstances:

1. Where an employee of this government unit acting within the scope of their employment causes property damage, personal injury, or death through a wrongful act, omission, or negligence, if:
   • Such property damage, personal injury, or death was due to the use or operation of a motor-driven vehicle or motor-driven equipment, and
   • Under Texas law, the employee would be personally liable to the claimant; and
2. Where personal injury or death results from the condition or use of a tangible personal or real property, and the government unit or entity would be liable under Texas law if it were a private person.
   
   

Where the actions or omissions of a government unit cause injury to an individual but do not fall under any of the above circumstances, this individual may be unable to successfully sustain a personal injury lawsuit against the government unit. Generally, the first condition, which requires that the injury must have been due to the use or operation of a motor-driven vehicle or equipment, is less common in medical malpractice cases. However, most medical malpractice or personal injury cases against a government unit, such as a government hospital, fall under the second condition. Examples of tangible personal property include surgery equipment. Therefore, where a doctor in a government-operated hospital performs surgery on the wrong body part or makes an amputation in error, the affected patient can commence a claim against the government unit. 

Most government-operated medical facilities rely on the provisions of the TTCA, as there are strict conditions a claimant must establish before the case proceeds to trial. Failure to establish these conditions may lead to the dismissal of the claimant’s case, regardless of the extent of the injury suffered. However, the provisions of the TTCA are not restricted to only government-operated medical facilities. Per §101.001 and §101.004 of the Texas Civil Practice and Remedies Code, it also applies to employees of such facilities and even medical professionals sponsored by a government unit but whose scope of employment requires them to practice in private establishments or as consultants. Accordingly, the mere fact that the medical malpractice occurred in a private-owned health facility does not exclude the possibility of requesting compensation from a government unit.

In addition to the strict conditions, a claimant must establish when suing a government unit for personal injury, there are certain procedural requirements as well. For example, before filing a malpractice claim against a government unit, this unit is entitled to receive a notice of the claim within six months of the occurrence that caused the alleged injury. Failure to serve this notice may lead to the dismissal of the lawsuit. This six-month requirement also operates as a statute of limitation. Essentially, any personal injury claim against a government unit must commence within six months after the incident that resulted in injury.

With the strict conditions and procedures associated with commencing a medical malpractice lawsuit against a government unit or entity, it is crucial for anyone intending to commence such a lawsuit to engage a medical malpractice attorney. Besides helping to gather evidence and argue their client’s case, a malpractice attorney will also help maximize exceptions in the TTCA. An example of such an exception is the effect of actual notice. While a government unit is entitled to the notice of a victim’s claim within six months of the medical malpractice occurrence, this requirement is unnecessary where it can be established that the government unit had actual notice. A personal injury lawyer is better suited at assessing whether a government unit had actual notice or imputing actual notice on the government unit. This is one of the many reasons an injury attorney may be crucial when commencing an injury claim against a government unit.

Can I Still File a Medical Malpractice Lawsuit After the Two-Year Window?

Per §74.251 of the Texas Civil Practice and Remedies Code, the statute of limitation for commencing a medical malpractice lawsuit is two years after the medical malpractice incident. Essentially, if a would-be claimant fails to commence a medical malpractice lawsuit within two years of the incident, they become unable to do so. However, there are exceptions to the Texas statute of limitation which makes it possible to file a medical malpractice lawsuit two years after the incident. One such exception is where the victim is a minor who is 12 years old or below. According to the statute of limitation, the minor has to wait until their 14th birthday to file a medical malpractice case or have one filed on their behalf. Therefore, the two-year time frame remains pending until the minor’s 14th birthday. 

Similarly, there is a statute of repose provision which provides that a victim of a medical malpractice case has until ten years from the medical malpractice incident to enforce their right to claim compensation. This provision is particularly for situations whereby the injuries from a medical malpractice incident only begin to materialize over two years after the incident. In such an instance, the victim can still file a medical malpractice lawsuit, relying on the statute of repose provision also provided in §74.251 of the Texas Civil Practice and Remedies Code.

Therefore, the instances whereby an individual can file a medical malpractice lawsuit after the two-year window are if the individual was below 12 years old when the malpractice occurred, or if the statute of repose applies to their situation. Interested persons can engage a medical malpractice attorney for more assistance on how the statute of repose works and other possible exceptions to the two-year window.

How does a Physician Navigate a Medical Malpractice Suit in Texas?

How a physician navigates a medical malpractice lawsuit in Texas largely depends on whether or not the physician has medical malpractice insurance. For physicians without insurance, the next best step after receiving notice of a lawsuit is usually to engage the services of a medical defense attorney. On the other hand, in cases where the physician or medical professional has active medical malpractice insurance, they are usually under obligation to notify their insurance provider as soon as they receive a notice of litigation. Medical insurance providers typically owe insured physicians two obligations, which are to:

• Defend the physician in the event of a lawsuit; and
• Indemnify the physician to an extent, in the event of a settlement or court-awarded damages.
  
  

In discharging the first obligation, insurance providers usually assign a lawyer to assist the insured physician or medical professional with defending the lawsuit. Accordingly, the attorney fees, filing fees, and other fees incidental to the malpractice lawsuit are borne by the insurance provider. However, the insured physician is also at liberty to engage a malpractice lawyer but will personally bear the cost of paying the lawyer’s fees and other fees incidental to retaining the lawyer. 

In medical malpractice cases, a medical malpractice attorney defending the physician in the lawsuit typically tries to either distance the physician from liability or shift the liability to another party. Some of the defenses utilized by malpractice attorneys include contributory negligence, which aims to establish that the injury suffered by the claimant was partly the claimant’s fault. Another defense is that the physician followed all available medical standards and the resulting injury was either inevitable, given the claimant’s medical condition and history, or it was due to some other factors outside the physician’s control and knowledge. The attorney may also rely on procedural deficiencies on the claimant’s part, such as a failure to obtain and serve expert reports as required by law. Expert evidence is usually necessary for establishing a credible defense in a medical malpractice lawsuit, except where the defense is on procedural grounds. 

It is advisable for physicians or medical professionals facing a medical malpractice lawsuit to cooperate with their attorneys, as this cooperation is necessary for establishing a solid defense. They are to answer questions put to them by their attorney truthfully and be detailed when giving a breakdown of the events surrounding the medical malpractice claim. Discussions with an attorney are protected by law, based on the principle of attorney-client privilege.

Generally, medical malpractice cases in Texas can go on for as long as three years. This length of time is partly due to the processes parties must go through before the lawsuit eventually proceeds to trial. Some of these processes, which also constitute part of the life cycle of the lawsuit, include:

• Filing a petition: This is when the claimant formally approaches the court to begin the lawsuit. A petition is usually filed after a claimant serves the relevant doctor or health facility a notice of the medical malpractice incident and is unsatisfied with any response received. After filing the petition, a claimant is under obligation to serve the petition and other attached court processes to the doctor or health facility, now referred to as the defendant, as notice of the lawsuit. 
• Obtaining expert evidence: Per §74.351 of the Texas Civil Practice and Remedies Code, a claimant must obtain an expert report and serve it on the defendant, along with other outlined documents, within 120 days after the defendant files their defense. This expert report is necessary to establish how the defendant has been negligent. Failure to obtain an expert report and serve it on the defendant is fatal to the lawsuit. Essentially, the case will be dismissed.
• The discovery phase: This phase refers to the procedure by which either party to the medical malpractice lawsuit requests information or documents from the opposing party. The request can take different forms, including interrogatories or requests for production. When there is a request, the other party must respond or give a valid and legally recognized reason for refusing to respond. Failure to respond or give a valid reason for refusing to respond may result in court-imposed penalties or have other legal implications. 
• Referral to mediation: After a petition has been filed, incidental processes are served, and parties are done with the discovery phase, the court may refer the case to mediation. Mediation is a neutral party-assisted process whereby parties attempt to settle the medical malpractice claim before it proceeds to trial. The mediator, a neutral third party, only helps parties express their claims and reach a compromise and cannot impose a resolution. If the mediation is a success, the parties enter an agreement and proceed to end the lawsuit.
  
  

After the above-mentioned processes and if mediation fails, the case proceeds to trial. Generally, the likelihood of successfully defending a medical malpractice case depends on how well the physician can establish that they adhered to necessary medical standards and utilized the most effective treatment procedure available at the time while attending to the claimant. Alternatively, the physician can push the liability to another party or circumstances reasonably outside their control. In any case, a medical malpractice defense attorney is better suited for establishing such defenses, and the physician’s cooperation with the attorney is crucial in this regard. 

Need help with finding a medical malpractice attorney? Medical professionals or victims of medical malpractice can find an attorney by either searching online for terms such as "medical malpractice attorney near me", or by visiting the state bar association directory to get the contact information of qualified malpractice attorneys in Texas. Concerned individuals may also use the lawyer referral services of local bar associations to find medical malpractice attorneys within their area, or ask family and friends for referrals.