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.
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:
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.
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.
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.
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).
Now let’s talk about damages. In terms of the basics, there are two types of damages in personal injury cases:
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.
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:
Read more and see where to find a lawyer in How to Find the Right Medical Malpractice Attorney for Your Case.