Options for when you’re injured by a health care professional
It can be frightening enough to go to the hospital for a medical procedure when you are certain it is going to go well. When it is a serious event like a double bypass or an amputation, there is more room for medical error.
What options do patients have when doctors make mistakes?
As of 2017, Texas paid out $75.9 million in medical malpractice lawsuits, which was actually a significant decrease for the state. That equaled 25.4 lawsuits per 100,000 residents. There are still caps on non-economic damages, which are for non-tangible things like pain and suffering, loss of consortium, emotional distress, and the loss of enjoyment of life.
We will get more into that in this article, but first let’s discuss what medical malpractice is, how Texas approaches it and the options patients have when their procedures go wrong.
What is medical malpractice?
Medical malpractice occurs when a medical professional deviates from what is considered in the field to be the accepted standard of care.
If your doctor, nurse or other health professional committed one of the acts listed below, you might have legal options:
- Misread or disregarded an important lab result
- Conducted unnecessary surgery
- Failed to diagnose a condition
- Offered a wrong diagnosis
- Gave improper medication or dosage
- Performed poor follow-up care
- Discharged you prematurely
If you think you might have a medical malpractice case, you must first prove negligence on the part of your health care provider. Also, remember that “health care provider” can range from a doctor to a nurse to an anesthesiologist to a pharmaceutical company to an entire hospital.
What is negligence?
Negligence is the basis of personal injury cases, and victims must prove it in order to receive compensation. There are four elements that must be established before a court will side with the victim.
Let’s say you went to the doctor with an infarction that was misdiagnosed, which caused a four-day blockage in your system. An aneurysm led to the infarction, which caused your thigh muscle to become necrotic. You ultimately faced the decision between amputation and removing the dead muscle in your thigh, which would still leave you with intractable pain for the rest of your life.
- Duty: Once the doctor/patient relationship was established, the health care provider owed you a duty of care. This duty required your doctor to act like any other doctor would in that same situation, and he was required to follow accepted medical practices that are considered standard in the field.In this instance, you went to the emergency room, submitted personal information so that you could be admitted, and had a medical exam. This established the relationship and duty of care. The doctor was then obligated to act like any other doctor would in that situation.
- Breach: Once the duty of care is established, your physician must exercise reasonable care and treat you like any other doctor would. He must follow common procedures.Here, the duty was breached when the doctor misdiagnosed the infarction, which led to your thigh becoming a bundle of necrotic tissue.
- Injury: You must suffer an injury because of the actions of the physician.Here, you definitely became injured because of the doctor’s actions. To win a medical malpractice suit, your attorney must prove that your doctor directly caused your injuries.
- Damages: Your attorney must prove that the patient suffered economic and non-economic damages from the injury.
In this instance, you most likely accumulated significant medical bills that would not have been there without the infarction. You would have further costs from missing work, as well as travel and lodging costs. If you lost your leg, you would have significant non-tangible costs, such as pain and suffering, emotional distress, and loss of consortium if you were married.
For the medical professional to be found negligent, your attorney must show that his or her conduct fell below the “accepted standard” of medical care, so having experts testify will help significantly.
Starting a medical malpractice case in Texas
Each state has its own quirks and laws when it comes to medical malpractice, because – of course – it’s a touchy subject. That’s why “tort reform” is so volatile every time election season rolls around. Tort reform refers to damage caps, personal injury cases and, most importantly, how much victims can recover when they sue medical institutions. It does not seem very important or vital until you are the victim and it’s your pile of medical bills that need to be reimbursed.
In Texas, it is especially quirky. Plaintiffs (AKA victims) only have two years from the date of injury to file a suit against a medical professional. This is called the “statute of limitations.” There are a few exceptions to this, like minors having until their 14th birthday to file claims. However, Texas makes a strong departure from the common law Discovery Rule, meaning that even if a plaintiff has not discovered an injury until, say, 30 years later (like a sponge left inside a chest cavity during surgery), that two-year statute of limitations still applies. The only exception is if the injury was fraudulently concealed.
There are also a few other hoops through which to jump, such as the within-60-day pre-filing notice to the medical professional that they are being sued and then the within-120-day post-filing notice giving them expert reports that validate the claim as an actual medical malpractice condition (also, curriculum vitaes must be supplied).
Caps on damages in Texas
Now let’s talk about damages. In terms of the basics, there are two types of damages in personal injury cases:
- General (non-economic) damages: loss of enjoyment, physical and mental pain or suffering, emotional distress
- Special (economic) damages: medical bills, lost wages, other tangible bills
- Punitive damages: damages designed to punish the health care provider for reckless and negligent acts.
Texas has instituted caps on these types of damages, which were originally put in place because of what was seen as an “insurance crisis.” This means that no matter how swayed a jury is, they cannot award a plaintiff damages higher than what the caps allow.
- Non-economic damages: per-claimant cap of $250,000 against a physician or health care provider
- Non-economic damages: per-claimant cap of $250,000 against a single health care institution
- Non-economic damages: per-claimant cap of $500,000 against multiple health care institutions overall and no single institution can be liable for more than $250,000
- No cap on economic damages
How to find the best medical malpractice attorney for your case
It is very important to do a lot of research and choose a medical malpractice lawyer with many years of experience in medical negligence legal work. Medical malpractice law is specialized and requires an attorney with experience. This is because there is overlap between complicated medical and legal matters. There also are unique procedural issues that come up in medical malpractice cases.
Most attorneys in medical malpractice law practice one of two kinds:
- They defend doctors from medical malpractice suits, or
- They represent patients who have been injured
Read more and see where to find a lawyer in How to Find the Right Medical Malpractice Attorney for Your Case.
Did you know that medical malpractice law varies by state?
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What does an injury lawyer do?
A personal injury lawyer helps individuals who have sustained injuries in accidents to recover financial compensation. These funds are often needed to pay for medical treatment, make up for lost wages and provide compensation for injuries suffered. Sometimes a case that seems simple at first may become more complicated. In these cases, consider hiring an experienced personal injury lawyer. Read more