Medical Malpractice Cases

There are different kinds of medical malpractice cases in Texas. Medical malpractice cases usually arise when a healthcare professional fails to provide proper medical care or omits to give an appropriate treatment, the result of which causes injury or death to a patient. Some of the common medical malpractice claims in Texas include failed or erroneous diagnosis and treatment, surgical errors, childbirth injuries, medical negligence, and patient abandonment, amongst others. This article discusses the different kinds of medical malpractice cases in Texas, the elements to prove in each case, and the steps to take when filing a Texas medical malpractice claim.

Can You Sue a Doctor for Wrong Diagnosis in Texas?

In Texas, a patient can file a malpractice lawsuit against a doctor for making a wrong diagnosis of a harmful medical condition. Some common types of misdiagnosis include cancer, asthma (which may be misdiagnosed as recurring bronchitis), heart attack (which can be mistaken for panic attack or indigestion), or staph infection (which can be dismissed as common flu). Since a wrong diagnosis is a result of the medical negligence of a healthcare provider, a patient has a right to institute an action in court and recover compensation from the negligent doctor.

When filing a medical malpractice lawsuit for a wrong diagnosis, the plaintiff must show that the doctor breached a medical standard of care and failed to demonstrate the level of skill that a similarly-trained doctor would have shown under the circumstances. It is not enough to show that the doctor failed to make the right diagnosis. The plaintiff must also show that the wrong diagnosis resulted in harm to them. For example, if a doctor wrongly diagnosed a patient of having cancer, the patient must show that this misdiagnosis needlessly exposed them to harmful treatments such as radiation and chemotherapy or unnecessary surgical procedures which resulted in disfigurement. Some of the steps a victim can take when pursuing a wrong diagnosis claim in Texas include;

• Hiring an experienced medical malpractice attorney: This is one of the most important steps to take when filing a claim against a doctor for a wrong diagnosis. A medical malpractice lawyer is a professional who advises and represents clients in medical malpractice cases. Hiring an experienced medical malpractice attorney can help the victim gain the upper hand in the case. Such an attorney will conduct a thorough investigation and ensure the victim recovers substantial compensation from the negligent party.
• Obtaining medical records and conducting an investigation: After hiring a malpractice attorney, the next step is to conduct a thorough investigation into the victim's medical records. A competent medical malpractice lawyer can quickly obtain their client's medical records and other medical documentation on time. The medical records give the attorney an in-depth understanding of the case and allow them to dissect the victim's case from their initial medical condition to their current state after the misdiagnosis. Such a lawyer will usually employ the services of a medical expert who can give their professional opinion regarding the case and the treatment that the victim received. The medical expert will not only show that the doctor breached a medical standard of care but that this breach also resulted in harm to the victim. Under the Texas Civil Practice and Remedies Code, this professional opinion is to be contained in an affidavit or certificate of merit, which an attorney must obtain before filing a medical malpractice lawsuit.
• Pre-trial discovery: During this stage, the medical malpractice lawyer collects information through depositions, interrogatories, and requests relevant documents from the opposing counsel.
• Settlement: Most medical misdiagnosis cases do not always make it to trial and are usually settled out of court. This is because taking a case to trial can be highly costly and time-consuming. An experienced medical malpractice attorney knows how to negotiate a favorable settlement on behalf of their client. The case goes to trial if the defendant fails to agree to the plaintiff's settlement.
• Trial: Here, both parties present their cases and introduce all relevant evidence before a judge or jury who decides the final outcome of the case. If the defendant is found liable for a wrong diagnosis that causes harm to the plaintiff, the court orders them to pay both economic and non-economic damages to the plaintiff. It is important to note that a plaintiff in a medical misdiagnosis case in Texas can only recover non-economic damages of not more than $250,000.
  
  

Under Texas law, all medical malpractice cases must be filed within two years from the date the victim was misdiagnosed. This is referred to as the statute of limitation. Failure to file an action within this limitation period can result in the claim being statute-barred. This means that the court will not be able to exercise jurisdiction over the case. If the misdiagnosis occurs in the course of ongoing healthcare treatment, the statute of limitation begins to run from the date the course of treatment is concluded. When a child below 12 years is the victim of a medical misdiagnosis, the lawsuit is to be filed on the child's 14th birthday under Texas law. In addition, Texas has a 'statute of repose' that establishes that patients must file a medical malpractice lawsuit within ten years, after which they lose the right to do so. It is therefore advisable to file a medical misdiagnosis claim as soon as possible to prevent the case from being dismissed in court.

How Long do You Sue for Medical Negligence?

On average, most medical negligence cases take up to two to three years to settle. The timeline to complete a medical negligence lawsuit usually depends on the strength and complexity of the case, as well as the extent of injuries suffered by the victim. While some cases take a year or two to settle, others take up to three to five years before the suits are completed. In Texas, most medical negligence claims end up settling out of court, but both sides are still required to file motions and go through the discovery process. If a medical negligence case does not settle and goes to trial, the lawsuit can take up to four to five years, depending on the circumstances of each case. Several factors determine how long a medical negligence suit can take, and these include:

• The complexity of the medical issue, especially one requiring the opinions of multiple medical experts.
• The extent of the plaintiff's injuries.
• Cases involving multiple doctors or medical professionals from the same medical group or hospital.
• Cases involving multiple witnesses.
  
  

What is Patient Abandonment?

Patient abandonment occurs when a physician terminates the doctor-patient relationship without reasonable notice to the patient and at a time when continued medical treatment is necessary. When terminating a professional relationship with a patient, Texas law requires the physician to give sufficient notice to the patient in order to find a new physician. A doctor who drops a patient without giving reasonable notice can be liable for medical malpractice, especially if the doctor's actions caused severe injury or death to the patient. To file a patient abandonment claim in Texas, the patient must prove several elements, including:

• That there existed a doctor-patient relationship: It must be proven that the physician had a professional relationship with the patient. To establish a physician-patient relationship, the patient must show that the physician agreed to treat them and that the treatment was already underway.
• Abandonment must have taken place when continued medical treatment was necessary: Here, the patient is required to prove that the abandonment occurred at a time when the patient is still in need of medical attention.
• Failure to give reasonable notice: Here, it must be shown that the abandonment was so sudden that the patient did not have sufficient time and resources to find a replacement physician.
• Abandonment led to severe injury or death: This element requires the patient to prove that they suffered serious harm and that this harm or injury was a direct result of the doctor's abandonment.
  
  

When do Most Cases of Patient Abandonment Occur?

In Texas,  most patient abandonment cases occur when a doctor, hospital, or medical facility unjustifiably and abruptly ends a professional relationship with a patient. Patient abandonment cases are not only limited to physician-patient relationships but can also arise between other kinds of healthcare providers and their patients, such as a nurse-patient relationship. There are other situations when patient abandonment can occur, including:

• Failure of the medical staff to reach out to a patient concerning a follow-up appointment which subsequently caused harm to the patient.
• Inadequate staffing in a hospital that results in harm or injury to the patient.
• Failure of the medical staff to convey an urgent communication between the patient and the doctor.
• Scheduling a follow-up appointment too far in the future, which worsens the patient's medical condition
• Unavailability of the physician for an unreasonable period of time when the patient needs medical attention, the result of which worsens the patient's condition.
  
  

It is important to note that a physician is allowed to terminate their professional relationship with a patient if such termination is done for valid reasons and in an appropriate manner. For example, a doctor may decide to end a doctor-patient relationship either because there are insufficient resources or equipment to provide adequate treatment to the patient or due to ethical or legal conflicts that may arise during the course of treatment. Other valid reasons for terminating a doctor-patient relationship include when;

• The patient refuses to comply with the physician's policies that were established at the beginning of their relationship.
• The patient cancels or misses their appointments on numerous occasions.
• The patient demonstrates illicit or inappropriate behavior such as engaging in verbal or sexual abuse towards the physician.
• The doctor has insufficient skills to provide adequate treatment to the patient. This can occur when the medical condition of the patient develops outside the physician's area of expertise. When this happens, the physician has a duty to recommend another qualified physician and to transfer the patient's medical records in a reasonable and timely manner.
  
  

What is a Breach of Doctor-Patient Confidentiality?

According to the Texas Occupation Code, a breach of doctor-patient confidentiality arises when a physician divulges the medical information of a patient to a third party without the patient's consent. Upon taking a patient for treatment, the doctor is required to hold any special knowledge in confidence and to use it exclusively for the benefit of the patient. A doctor, therefore, commits a breach of doctor-patient confidentiality if they inappropriately disclose such knowledge or information to a third party without the patient's express authorization. In Texas, a breach of doctor-patient confidentiality is considered malpractice and can serve as grounds for initiating a medical malpractice lawsuit. Depending on the circumstances of the disclosure, a medical malpractice attorney can help a patient to recover compensation for the loss or damage suffered as a result of the breach.

It is important to note that the duty to hold a patient's medical information in confidence covers not only what a patient may reveal to the physician, but also any opinions or diagnoses the doctor may develop after examining the patient. The duty of confidentiality covers all medical records including lab reports, x-rays, or medical history. It also covers any information relating to the patient's appointments, medical procedures, or assessments, as well as any communication which the patient shared with the physician and other medical staff.

What is Failed/Erroneous Diagnosis and Treatment?

A failed/erroneous diagnosis and treatment occurs when a delay or failure to diagnose or treat a disease causes injury or death to a patient. Most cases of failed/erroneous diagnosis and treatment usually occur when a doctor fails to treat a medical condition by dismissing the patient's symptoms as minor, or unimportant. A physician's failure to give the right diagnosis or treatment can worsen the patient's underlying medical condition and cause further harm and injury. For example, a patient may file an action for failed/erroneous diagnosis and treatment if such patient has cancer and the doctor diagnoses it as some other condition,  leaving time for cancer to spread when it should have been treated immediately. Failed/erroneous treatment may also arise when a doctor has rightly diagnosed a patient's medical condition but failed to apply proper treatment which resulted in further harm and injury to the patient.

When filing a medical malpractice lawsuit involving failed/erroneous diagnosis and treatment, the patient must prove several elements, including:

• The existence of a doctor-patient relationship
• Failure to maintain a medical standard of care in diagnosing and treating the patient's condition
• Doctor's failed/erroneous diagnosis and treatment directly caused injury or harm to the patient. In Texas, the patient has a duty to prove that the doctor's failed/erroneous diagnosis and treatment worsened their injury and that this would not have occurred if the doctor had made the right diagnosis or had started treatment immediately. For example, a cancer patient filing a failed/erroneous diagnosis and treatment claim must show that the delay in diagnosis or treatment worsened their condition and that this would not have happened if the diagnosis and treatment was done in a timely manner.
  
  

What is Birth Injury?

A birth injury is a preventable condition that results from something that happened during the process of delivering the baby. It includes any harm or damage that a baby suffers during pregnancy, childbirth, or just after the birthing process. Some common examples of birth injuries include cerebral palsy, facial nerve injury, brain damage, respiratory problems, seizures, fetal and maternal death. It is important to note that a birth injury is different from a birth defect, which is typically inherited genetically or caused by environmental conditions. Common examples of birth defects include down syndrome, club foot, malformed heart, or any other medical condition arising from genetics. Unlike cases of birth injuries, affected individuals cannot file a lawsuit for birth defects, unless the defect is caused by an environmental factor such as chemical pollution or pharmaceutical product defect.

To establish a medical malpractice claim based on a birth injury in Texas, the plaintiff must prove several elements, including:

• The defendant had a duty of care: The plaintiff must show that the defendant, as a physician or medical provider, had a duty to administer care according to reasonable medical standards. The test is whether the physician or healthcare provider acted in a manner that a similarly-trained and experienced physician would act in the circumstances. The plaintiff can successfully prove this element by showing that the birth injury would not have happened if another physician of the same specialty and experience had been involved in the birthing process.

• The defendant breached their duty of care: Here, the plaintiff must show that the defendant failed to act according to applicable standards of medical practice. This can be done by proving that the physician failed to exercise the degree of care and skill required of a reasonable physician of a similar specialty and experience. Examples of medical negligence that may result in birth injuries include pulling or twisting the infant during delivery, failure to detect or monitor distress or fetal heartbeat, improper use of forceps, other birth-assisting tools, oxygen deprivation, and administering an incorrect or wrong dosage of medication, etc.

• The defendant's breach caused the plaintiff's injuries: The plaintiff must also be able to show that the defendant's negligence directly caused or resulted in their injuries.

• The plaintiff suffered actual damages: Here, the plaintiff must show that they suffered damages as a result of the defendant's medical negligence. In Texas, a parent is responsible for filing a birth injury lawsuit on behalf of their injured child. The damages recovered from the lawsuit usually belong to the child and are placed in a trust. Some of these damages cover economic and non-economic damages, including medical costs and expenses, lost income, disability, disfigurement, pain, and suffering.
  

It is important to file a birth injury lawsuit as soon as possible to prevent it from being time-barred. Texas statute of limitation requires that all medical malpractice claims (including birth injury lawsuits) be filed within two years from the date the injury was sustained or discovered. In addition, Texas has a ten-year statute of repose for filing a lawsuit for an injury caused by medical negligence. A plaintiff who fails to file a lawsuit within this deadline will risk their case being dismissed by the court and will not be able to recover damages based on their claim. It is therefore advisable to hire an experienced birth injury lawyer who has access to medical experts and understands how birth injury claims work in Texas. Such a lawyer will help to investigate the birth injury and gather solid evidence to support their client's case. The evidence may take the form of the child's medical records, employment records of medical professionals involved in the case, eyewitness testimony, and expert testimony. A competent birth injury attorney also handles negotiations with hospitals and insurance companies and ensures their client receives a fair settlement. 

Who Can Be Sued After a Birth Injury?

Several persons may be sued for a childbirth injury since there are multiple parties involved during the labor and delivery of the child. This makes it difficult to determine who is directly responsible or shares blame for the medical errors and negligence that resulted in the birth injury. It is important to note that not only medical doctors can be sued for birth injury, but also other medical staff providing healthcare services, such as obstetricians and gynecologists, nurses, anesthesiologists, and even hospitals and pharmaceutical companies. The liability of these medical professionals is discussed as follows:

• Liability of family physician or primary care provider: Although a family physician or primary healthcare provider only administers general prenatal care, they have a duty to ensure that they assess and refer potential pregnancy and birth-related complications to the appropriate specialists such as an obstetrician-gynecologist (OB-GYN). A primary healthcare provider may therefore share the blame for any birth injury resulting from their failure to take note of warning signs or relay relevant information to the OB-GYN.

• Liability of obstetricians and gynecologists: OB-GYNs are usually found liable for most birth injury cases since they are primarily in charge of what happens in the delivery room. They are the surgeons that deliver the baby, perform Cesarean sections (C-sections), and handle the use of birth-assisting tools such as forceps and vacuum extractors. Since they are heavily involved in the pre-natal health and safety of expecting mothers, any error or lapse in judgment during the birthing process can result in severe injuries or death of the expecting mother and baby.

• Liability of anesthesiologists: The duty of anesthesiologists is to administer anesthesia and monitor vital signs such as consciousness level and blood pressure during a C-section procedure. This is to ensure that the expecting mother is not in distress during this procedure and that the surgery is painless and safe. If an anesthesiologist is negligent and makes an error during a C-section surgery, the expecting mother can experience serious pain, brain damage, post-traumatic stress disorder, and other severe injuries.

• Nurses and other Medical Personnel: Medical staff such as nurses and physician assistants are also involved in monitoring the expecting mother during pregnancy and after childbirth. They have a duty to ensure that correct dosages and medication are given to the expecting mother and that prescriptions are properly managed. Failure to properly perform this duty can cause harm to both the mother and baby and may justify the filing of a birth injury lawsuit against them and their employer.

• Liability of Hospitals and Medical Clinics: A hospital or medical clinic may be directly or vicariously liable for childbirth injury. Direct liability arises when the hospital's own negligence before, during, or after the pregnancy resulted in harm or injury to the mother and baby. Hospitals may also be held vicariously liable for the medical negligence of their employees. For a hospital to be vicariously liable for the errors of its medical staff, the plaintiff must show that the staff in question was acting in the course of employment. Vicarious liability, therefore, applies only to employees of the hospital and not to those who work as independent contractors. Since a hospital or clinic is responsible for hiring their medical staff, they have a duty to thoroughly assess the licensing, training, and qualification of their medical staff. The plaintiff can therefore bring a malpractice claim against a hospital or clinic for hiring an unqualified medical staff who causes a birth injury.

• Pharmaceutical companies: These companies are in charge of manufacturing drugs and educating the public, including medical professionals about the potential side effects of their products. A plaintiff can therefore sue a pharmaceutical company for manufacturing dangerous and unsafe drugs which cause complications to their pregnancy or childbirth.
  
  

Types of Cases/ Frequent Allegations that Lead to Medical Malpractice Suits

In Texas, there are different types of cases that result in medical malpractice lawsuits. Most medical malpractice cases usually deal with errors or negligence committed during surgery or failure in diagnosing or treating a medical condition. Some common types of medical malpractice cases in Texas include:

• Surgical Errors or Mistakes: When a patient undergoes surgery, it is expected that all the medical staff involved in the surgery would properly perform their roles and duties. A physician or healthcare provider who commits errors during a surgery that harm the patient is liable for medical malpractice in Texas. Surgical mistakes come in so many forms and include using unsanitary medical equipment, performing insufficient anesthesia that causes the patient to wake up during surgery, or mistakingly cutting the wrong body part.

• Failure to Diagnose and Misdiagnosis: A patient may file a medical malpractice claim against a doctor who fails to give a right and timely diagnosis, which as a result, worsened the patient's medical condition. For example, a medical malpractice lawsuit may arise if a doctor misdiagnosis a condition and causes the patient to receive harmful treatments for a disease that they do not actually have.  

• Operating Room Errors: Operating rooms in hospitals or clinics usually contain several chemicals and scientific facilities, which, if not properly handled, could cause injuries. A patient who gets injured by fire or any other problem in an operating room can sue for medical negligence.

• Medication Errors: These errors occur when physicians and healthcare providers prescribe the wrong medication or administer drugs that cause high blood pressure or allergies due to the patient's pre-existing health condition. Medication errors may also arise when a doctor fails to warn the patient on how the medication interacts with other types of drugs.

• Leaving Objects inside the Patient's Body During Surgery: A medical staff may accidentally leave an object such as a medical sponge or scalpel inside the patient’s body during surgery. Patients who discover this error can file a medical malpractice claim against the healthcare professionals involved in the surgery.

• Hospital Infections: Some patients acquire hospital infections during the course of their treatment which their physician may ignore or dismiss. A medical malpractice claim, therefore, arises when such hospital infections result in complications of an existing medical condition or cause additional diseases or death.

• Gross Negligence: This type of negligence arises when a medical doctor or healthcare provider acts with complete disregard for the safety of the patient. A good example of gross negligence is when a doctor provides treatment while under the influence of drugs or alcohol. Other examples of gross negligence include performing the wrong surgical procedure, performing a surgical procedure on the wrong patient, or cutting or amputating the wrong part of the body. It is important to note that a plaintiff can ask for punitive damages (damages aimed to punish the defendant) in this type of medical malpractice case.
  
  

How Can a Medical Malpractice Attorney Help?

A medical malpractice lawyer is skilled and reliable in representing the victim of a medical malpractice case and ensuring that such a victim obtains favorable compensation for their loss or injury. Although it is not compulsory to hire a medical attorney when filing a medical malpractice claim, it is advisable to do so in order to increase the chances of success of the case. Hiring a skilled and experienced malpractice lawyer is necessary to achieve the best possible outcome in a medical malpractice claim. This is because such an attorney understands the complex medical malpractice laws in Texas and can negotiate a favorable settlement on behalf of the patient. A medical malpractice lawyer can be useful in several ways, including:

• Communicating with Insurance Companies: Dealing with insurance companies and representatives of a medical or healthcare facility can be quite intimidating for patients when filing a medical malpractice claim. Once a medical malpractice attorney is hired, they perform the duty of communicating with the insurance companies, and this allows the patient to focus solely on their rehabilitation and their treatment.

• Knowledge of a claim's value: When it comes to medical malpractice claims, several factors determine the value of a claim and the possible damages to receive. These factors include the nature of medical negligence and breach of the medical standard of care, and the extent of the patient's injuries or harm, among others. An experienced medical negligence lawyer knows how to come up with an award that accurately represents the needs of their client and also increases the chances that the claim will succeed.

• Negotiating favorable settlement: A medical malpractice attorney also knows how to negotiate a favorable settlement on behalf of the patient. Such a lawyer communicates and negotiates with insurance companies to ensure they agree with the victim's terms of the settlement.

• Representation in court: A medical lawyer with good trial experience can properly present and argue their client's case before a judge or jury. The chances of the case succeeding in court usually depend on the lawyer's ability to argue the patient's case before a judge or jury and ensure that the needs of the patient are taken into account by the court.

• Accelerating the legal process: The processes required to file a medical malpractice claim, including the drafting of relevant paperwork, negotiating with insurance companies, and consulting expert witnesses, can be time-consuming. A competent malpractice lawyer knows the importance of concluding the legal process in a timely manner for their client. Such an attorney, therefore, ensures that the case keeps moving forward in order for their client to receive compensation as soon as possible.

• Working with medical experts and collecting evidence: Upon hiring a medical malpractice attorney, they begin to make moves toward collecting evidence and employing the services of a medical expert to substantiate their client's case. They collect and analyze their client's medical records, and work together with medical experts in developing expert reports, testimonies, and case theories, to support their client's cases. In addition, they help in taking depositions of medical personnel, medical experts, and other third parties in order to back up their client's claims.
  
  

If you or your loved one have suffered injury or loss resulting from medical malpractice, it is important to consult an experienced medical malpractice lawyer who can provide adequate legal representation and negotiate a favorable settlement on your behalf. You can find a lawyer by searching online for terms such as "medical malpractice lawyers near me" or "injury attorney near me." You can also find the contact information and case history of Texas' best medical malpractice attorneys through the state bar association website or the lawyer referral services of professional bar associations in Texas. You may also ask friends, family, and colleagues for a referral or recommendation. It is, however, important to conduct additional research on any recommendations you may receive to ensure that such a medical malpractice attorney has the relevant expertise and experience to handle your case.