Preparing for a Medical Malpractice Case

Successfully handling a medical malpractice case can be difficult, especially when done without the help of a legal professional or without the basic knowledge necessary to substantiate the case. Therefore, it is crucial to prepare for a medical malpractice case before commencing one.

First Steps to Starting a Medical Malpractice Case in Texas

Before starting a medical malpractice case, there are certain preliminary steps the would-be claimant should take. While some of these steps are prudent, as they can help address the issues arising from the medical error or lead to an out-of-court settlement, some steps are mandatory, as they are a prerequisite to filing a medical malpractice lawsuit. Preliminary steps for initiating a medical malpractice case include:

• Contacting the relevant medical practitioner: In most cases, medical practitioners endeavor to abide by established medical standards when attending to patients. A medical practitioner who has made an error may be unaware of this error. Therefore, contacting this professional can help establish an understanding that something may have gone wrong. This gives the professional the opportunity to remedy the wrong. Particularly in situations where the effect of the error is minor or is yet to escalate to a major complication, the medical practitioner may offer to address the situation for free or provide the necessary solutions. This way, the problem is addressed quickly and without the risk of the patient’s health deteriorating.
• Contact the relevant health facility: This is applicable in situations where the medical practitioner fails to acknowledge or address their medical error, and the practitioner is employed by a health facility or hospital. Since health facilities may be partly liable for their employee's actions in the event of a lawsuit, they usually try to address medical malpractice complaints made against their staff. This includes compelling the at-fault medical practitioner to remedy the wrong, assigning another medical practitioner to address the issue, and/or offering a settlement. However, if a health facility offers a settlement as compensation for a medical malpractice case, it is advisable to hold off on accepting the settlement until after speaking with a medical malpractice attorney. An attorney will help review the extent of the medical error, determine what settlement offer is appropriate in the circumstances and whether the health facility should make further guarantees.
• Contact the Texas Medical Board: Where the medical practitioner refuses to acknowledge fault or address their errors, and they are either independent practitioners or their employers also fail to acknowledge the situation, it may be necessary to contact the Texas Medical Board and escalate the situation. While state medical boards do not usually offer compensation, they can enforce disciplinary actions against the liable practitioner or health facility, including suspending the practitioner’s medical license or bringing the relevant health facility under oversight.
• Gather relevant documents: This includes medical bill receipts, written appointments and schedules, and prescriptions. Any document that establishes the liable medical practitioner performed an incorrect medical procedure or made an incorrect diagnosis is crucial, as this may be necessary for proving the medical malpractice case. 
• Ensure the claim is not statute-barred: Under Texas statute of limitation, certain cases must be brought before the relevant court within a specified period. This is known as a “limitation period.” Any claim not brought within the statute of limitation becomes barred. This means a would-be claimant cannot present their case before the court anymore, regardless of how compelling it may be. Health liability claims must be brought before the courts within two years from the alleged medical malpractice. However, where the effects of the medical malpractice take longer than two years to surface, the victim must begin a health liability claim within ten years from the alleged medical malpractice. The 10-year time frame is absolute, and victims of medical malpractice who may realize the effects of the error over ten years later cannot commence a health liability claim. Nevertheless, individuals who would like to know if their case is statute-barred should contact a malpractice attorney for professional advice.
• Procure the assessment of an expert: Before starting a medical malpractice case, it is crucial to get an assessment from a medical expert that can establish the occurrence of medical malpractice. This is a mandatory requirement, without which a medical malpractice case cannot proceed in court. The need for this is unsurprising, as there are instances when a patient may feel uncomfortable or certain inconveniences after a medical procedure. In such instances, for example, the patient may have the impression that there must have been a medical error when there was none. Therefore, there must be an assessment of the situation by an expert establishing that there was indeed a medical error resulting from negligence, which caused injury to the affected patient. The expert's findings are usually summarized in a certificate of merit, and the expert may be summoned as a witness during the court trial.
• Consult a personal injury lawyer: While no law restricts anyone from personally conducting their medical malpractice case, it is always crucial to consult and retain an attorney. Not only do personal injury attorneys help with better canvassing their client’s case in court, but they also guide their clients on the preliminary steps relevant to their case. Also, personal injury attorneys help gather evidence, chart the strengths and weaknesses of a case, negotiate favorable settlement terms for their clients, and find loopholes in a liable party’s purported defense. With an attorney, proving a medical malpractice case is easier.
• Try getting an out-of-court settlement: In some cases, a liable medical practitioner, or their employer, tries to settle cases of medical malpractice out of court. Besides such cases taking a long time in court, medical practitioners and health facilities also worry about their reputation. Such out-of-court settlements are especially presented by the liable party when the injury caused by the medical error is extensive or severe. It is advisable to consider any such offers of settlement to avoid a long and uncomfortable litigation experience since medical malpractice cases can take up to three years in court. However, before taking up any settlement offer, ensure to engage a medical malpractice lawyer to help with reviewing it and possibly bargaining for a higher offer. 

How to Sue a Hospital

Suing a hospital is a step-by-step procedure, which typically requires the suing party to take certain actions in a particular order. To begin the procedure, the Claimant/ Plaintiff must first send a notice of litigation to the hospital and give a reasonable time for a response. Note that this notice of litigation must contain the timeframe within which the hospital must respond. Reasonable time can be anywhere between 15 and 45 days. However, a medical malpractice lawyer can help determine what is reasonable in the circumstances. Notice of litigation is to inform the hospital of a pending case against it, the reasons for the case, and the demands of the suing party or claimant. It typically aims to facilitate mediation, nudging parties into settling amicably out of court.

However, if settlement breaks down or the hospital fails to give a response after a reasonable time has elapsed, then the malpractice attorney of the suing party can file a petition at the relevant city court and serve the court processes on the hospital. The service of court processes is mandatory, as the hospital must know there is a case against them in court, so they can prepare for their defense. After filing the petition and service of the court processes, parties will be given a date to appear before the court and begin the preliminary steps for trial. Before this date, parties are to gather evidence to establish their case or defense, procure witnesses, and get their arguments ready. 

While this is essentially the procedure for suing a hospital, it does not cover most intricacies, which typically depend on the nature of each case. For example, after filing a petition and the service of the relevant court processes, the malpractice attorney of the suing party may send a request for discoveries. Discovery is the process by which a suing party requests certain information or documents from the other party to the suit, usually by way of questions. This can be used when the hospital holds onto a patient’s medical records without any legal or proper reason. Sending a request for discovery is a way to obtain such medical records, as the failure of the hospital to respond to the discovery can be sanctioned by the court and attract penalties. However, a discovery process is not necessary in all cases, and these intricacies underscore the need to engage a medical malpractice lawyer before instituting an action against a hospital.

Proving Fault in Medical Malpractice Cases

In order to prove fault in a medical malpractice case, certain facts must be established. Generally, medical malpractice includes situations whereby a medical practitioner made medical errors or did an act or omission that violates agreed, laid down medical procedures, and this causes injury to the affected patient. The facts to establish when proving fault in a medical malpractice case are that:

• The liable party, at the time of the medical procedure resulting in injury, was a medical practitioner or health professional;
• The liable party treated or failed, when they were supposed to, to attend to the affected patient;
• This action or omission of the liable party violates agreed and laid down medical or health procedures, guidelines, or requirements;
• This action or omission of the liable party has caused injury to the affected patient.
  
  

These facts must be established and supported with evidence, or it may be difficult or impossible to prove fault in a medical malpractice case. 

What Documents Should You Provide to Your Attorney in a Medical Malpractice Case?

When trying to prove a medical malpractice case, attorneys typically need certain documents to establish how the medical practitioner deviated from acceptable medical standards. Such documents typically give an insight into the affected patient’s medical condition, the procedures conducted by the liable medical practitioner, areas where the medical practitioner made errors, and how these errors resulted in injury. Accordingly, necessary documents a person should gather for their malpractice attorney when planning a medical malpractice case include:

• Medical records: This should contain the medical condition, medical history, and different treatment procedures undergone by a patient. Medical records are necessary, as these documents show whether a patient indeed had a medical condition, visited a hospital for medical procedures, or got treated by the liable medical practitioner. In most cases, a person’s medical records will contain notes, observations, and actions of a medical practitioner regarding them. They are helpful with assessing the original reason for which a person visited a hospital and the procedures utilized by their medical practitioner in addressing these reasons. Essentially, it would be easier to see if certain medical procedures were done in error through a person’s medical records.
• Prescription records: These records relate to drugs recommended by a medical practitioner. They contain detailed information on a person’s drug-related treatments, including the recommended dosage, timeframe for use, and possible side effects of a recommended drug. While a person’s medical records may contain their drug-related treatments, it is still crucial to obtain prescription records, as they are more detailed.
• Medical insurance records: For individuals with medical insurance, it is advisable that they provide their medical insurance records, especially when insurance payouts were used for hospital visits or paying medical bills. This can help a medical attorney with establishing their client’s case, such as that their client visited the hospital of the liable medical practitioner, amongst other things. Similarly, if the insurance payout is used to treat injuries resulting from the alleged medical error, medical insurance records may be necessary for obtaining compensation.
• Medical bills: This covers all expenses related to receiving medical treatment. Outlined costs on a medical bill typically correspond to the services rendered by the billing party. Therefore, through medical bills, an attorney can prove certain services were rendered and find where an error must have occurred. 
• Documents showing personal expenses: A major reason for starting a medical malpractice case is to obtain compensation for the errors of a medical practitioner, which resulted in injury. In most cases, this compensation is necessary, as the victim of such errors has incurred several personal expenses trying to get medical help. However, it may be difficult to obtain compensation and be adequately reimbursed for such expenses without the relevant documents or evidence.
•  Medical Background: Besides providing all medical-related records and documents, it is also crucial for anyone commencing a medical malpractice case to share their medical background with their attorneys. With this information, a medical malpractice attorney can better understand the need of their clients when they visited a health facility or medical professional. They can also better understand and show the disparity between their client’s expectations and the failed treatment rendered by their client’s doctor or hospital. Note that sharing one’s medical background is entirely discretionary, and attorneys cannot force their clients to provide such information.
  
  

These are some of the necessary documents and information a Claimant commencing a medical malpractice case should provide to their attorneys. However, depending on the circumstances of each case, there may be other necessary documents, and the Claimant’s attorney may request such other documents as they become necessary.

What is Medical Records Release Form?

Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), a patient’s medical information cannot be shared without their permission. There are different ways to obtain this permission, one of which is by getting the patient to voluntarily fill and sign a medical records release form. A medical records release form is a document by which patients request that their medical information be released or shared with themselves or a third party. This form has a wide range of options, allowing patients to choose whether they would like to share specific information; the specific people or organizations they would like to share that information with; and the timeframe for sharing such information, after which the sharing must stop, amongst other things. 

Medical Malpractice Time Limits

Texas has specific timeframes for certain legal actions. These timeframes are contained in different laws and are known as “statute of limitations.” Once the limitation period specified for making a claim elapses, the would-be claimant becomes unable to commence a claim. In such a situation, the claim is said to be “statute-barred.”

The Texas statute of limitation for commencing a medical malpractice case is two years. For victims of medical malpractice who are under 12 years old, the statute of limitation operates a bit differently. The two-year timeframe begins to count from their 14th birthday. Note that where the injury from a medical malpractice occurrence takes longer than two years to materialize, the victim may still be allowed to commence a medical malpractice case. However, such a victim must commence their case within ten years from the day of the alleged medical malpractice. This exception is known as a statute of repose. Interested persons may discuss this exception with a medical malpractice lawyer for more clarity and get details on how it operates and relevant modalities.

Proving Medical Negligence

When a person visits a medical practitioner for consultation, diagnosis, or treatment, this creates a “doctor-patient” relationship between the medical practitioner and this person. During this doctor-patient relationship, the medical practitioner owes the person, now referred to as a patient, some duties of care. The primary duty of care a medical practitioner owes their patient is to ensure that any services rendered do not fall below basic, laid down, and established medical standards. When a medical practitioner fails to abide by this duty of care, and the patient suffers injury. As a result, the medical practitioner is said to have been negligent.

Essentially, when proving medical negligence, it must be established that:

• A duty of care exists. One way this can be done is first to prove that there was a doctor-patient relationship. Medical records and bills can be helpful in this regard.
• The duty of care was breached. In proving the breach of a duty of care, it is necessary to establish that the liable medical practitioner acted below medical standards in the relevant circumstances. One of the best ways of determining this is to establish what a reasonable physician would have done, given the same circumstances. This is where expert evidence comes in.
• The breach of duty resulted in injury. An injury must exist for a claim of medical negligence to succeed. This injury need not be only physical. It can also be emotional or psychological.
  
  

A medical negligence lawyer understands Texas medical negligence laws and ensures that their clients receive fair compensation for their loss or injury. A party that successfully proves medical negligence is entitled to compensation, usually in the form of economic or non-economic damages. Economic damages refer to monetary compensation awarded against an at-fault party, usually for objectively calculable and ascertainable monetary losses. Economic damages awarded to successful claimants may be general, special, punitive, or all three, depending on the degree of the at-fault party’s negligence. General damages are broad monetary compensation awarded against an at-fault party, taking into consideration the claimant's situation, injuries, or losses incurred due to the liable party’s negligence. The amount a court may award as general damages is entirely at the court’s discretion, although a claimant can request any amount of their choice. Special damages are also monetary compensation, but for specific expenses. Accordingly, special damages must be specifically pleaded. For example, a claimant who has incurred personal expenses on treating themselves or securing domestic help due to the medical negligence of the at-fault party can ask for special damages. However, they must provide evidence of such expenses to the court. Since special damages must be specifically pleaded, the amount a court may award is not solely at the court’s discretion. Rather, it includes a calculation of all the expenses presented before the court and established to have been incurred by the claimant due to the at-fault party’s negligence. 

Punitive damages are also monetary compensation, but they are usually awarded primarily to punish the at-fault party. This type of compensation is mostly awarded against someone who has been grossly negligent. Gross negligence entails reckless conduct, disregarding basic safety or necessary precautions. It covers situations where a medical professional or practitioner acts dangerously, given the circumstances and their knowledge, in a way capable of causing injury to their patients. 

On the other hand, non-economic damages refer to compensation for losses that are not monetary in nature. Such losses include trauma, loss of enjoyment of life, emotional distress, and pain and suffering. One of the purposes of non-economic damages is to help a claimant return, as close as possible, to their normal life before the medical malpractice situation. The amount a court may award as non-economic damages is usually at the court’s discretion, but claimants are advised to show the court the extent of their non-monetary losses. However, note that there is a limit to non-economic damages that Texas courts can award in medical malpractice cases. The limit ranges between $250,000 and $500,000.

Need help with preparing for a medical malpractice case? Find a malpractice or personal injury lawyer by either searching online for terms such as "medical malpractice lawyer near me", or using the state bar association directory to find the contact information and license status of qualified medical malpractice attorneys in Texas. You may also use the lawyer referral services of professional bar associations within your city or county, or ask for referrals from family and friends.