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What are the Texas Medical Malpractice Laws and How Do They Affect My Case?

The medical malpractice lawyers at Harmonson Law Firm are among the leading medical malpractice lawyers in the El Paso, Texas area.  Every day, we are asked to review potential medical malpractice claims against local doctors, hospitals and other healthcare providers like nurses, physicians’ assistants and nurse practitioners.  This guide will provide a brief overview of the Texas laws with respect to medical malpractice cases.

What is the law that governs medical malpractice lawsuits in Texas?

Texas medical malpractice is governed by Chapter 74 of the Texas Civil Practice and Remedies Code.  Chapter 74 defines the rules and laws that govern “healthcare liability claims” in the State of Texas.  If the claim is a “healthcare liability claim” according to Chapter 74, there are many procedural hurdles to overcome and certain caps on the amount of damages that an injured person can recover. 

What claims are considered medical malpractice claims governed by Chapter 74?

All healthcare liability claims are governed by Chapter 74.  A “healthcare liability claim” means “a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.”  Virtually all claims involving healthcare are governed by the Texas medical malpractice statute Chapter 74.

What healthcare providers are covered by Chapter 74?

All healthcare providers, of every sort and type, fall under the protections of Chapter 74.  Healthcare providers that are specifically included in the definition of a healthcare provider are physicians, registered nurses, dentists, podiatrist, pharmacists, chiropractors, optometrists, and health care institutions (like hospitals and hospital systems, surgical centers, assisted living facilities, EMS service providers, hospice, nursing homes, facilities for the mentally retarded, and dialysis centers).  The directors, officers, partners, members, employees and independent contractors of these facilities and healthcare providers are included in the definition. 

Essentially, all conduct that relates to healthcare by any type of healthcare provider is governed by the Texas medical malpractice laws found in Chapter 74.  These laws are designed to protect doctors, hospitals and other healthcare providers and an experienced medical malpractice lawyer will need to know all of the “ins and outs” of Chapter 74 to help with a claim.

Do I have to give notice of a claim before filing a medical malpractice lawsuit?

Yes, Chapter 74.051 provides a required pre-suit notice.  Written notice of a healthcare liability claim shall be given by certified mail, return receipt requested, to each physician and healthcare provider against whom a claim is made at least 60 days prior to the filing of a lawsuit in Texas based on a medical malpractice claim.  Included with the notice letter, the injured person is required to fill out and sign an authorization which provides information about the claimant’s medical history and allows the physician or healthcare provider to gather relevant medical records.  If a person does not provide the required notice letter, the court can abate a medical malpractice lawsuit until such notice is provided.

Perhaps the only benefit to an injured claimant found in Chapter 74, once the Chapter 74 letter has been sent to one doctor, healthcare provider or healthcare institution, the applicable statute of limitations is extended 75 days as to any and all potential defendants.

Do I have to provide evidence of my claim to a Court as a condition to filing a lawsuit?

In a Texas medical malpractice lawsuit, Chapter 74.351 states that within 120 days of each defendant doctor or healthcare provider filing an answer to the lawsuit, the claimant (the injured party) must serve on that party an expert report.  The expert report must provide a fair summary of the expert’s opinions concerning the applicable standard of care, the manner in which the physician or healthcare provider breached the standard of care, and the casual relationship between the breach of the standard of care and the injuries, harm or damage claimed.

The expert report must be written by one or more experts.  In a claim against a physician, only another physician can act as an expert to write the report.  That physician must have the requisite qualifications to opine as to the care rendered and must be practicing medicine at the time the testimony is given or was practicing at the time the claim arose.  In claims against non-physician healthcare providers, a physician is not required to opine as to the standard of care; however, the expert needs to have the necessary qualifications, education and training to render opinions as to the standard of care.  For example, a nurse with education, experience and training in labor and delivery can opine as to the negligence of another nurse in a case involving the labor and delivery department of a hospital. 

A physician is required to opine as to the casual relationship between the breach of the standard of care and the injury, harm or damage claimed in every expert report. Hence, in every expert report, a physician must testify as to “causation”.

There are numerous Texas supreme court cases that have analyzed every aspect of the expert report requirements.  If the expert report is not filed or is found to be deficient, the lawsuit will be dismissed and the defendant will be entitled to an award of attorney’s fees against the claimant.  It is very important to get the expert report right.  It is important that a person injured by medical malpractice hire a lawyer that knows the laws concerning the expert report requirements so that the claim is not dismissed by the court.

What happens if I fail to file an expert report under Chapter 74?

If an expert report is not filed or is found to be insufficient by the court, the court is required to award attorney’s fees and costs against the injured claimant and dismiss the lawsuit against the provider without the possibility of refiling the lawsuit.  It is very important that an expert report that is in compliance with the requirements of Chapter 74 be timely filed.  There are many cases authored by the Texas Supreme Court that provide guidance as to the exact requirements of a Chapter 74 expert report.  Failure to comply with the expert report requirements of Chapter 74 mean death to a lawsuit and an award of attorney’s fees against the person bringing the claim.  For that reason, we counsel people who would like to bring a medical malpractice lawsuit to hire a medical malpractice lawyer that knows and has studied all of these laws in depth.

Are there any caps on the amount of damages that can be recovered in a Texas Medical Malpractice claim?

Yes, there are significant caps that can be recovered for non-economic damages.  The cap in Texas is $250,000.00 for non-economic damages in any lawsuit against one or more doctors or healthcare providers, regardless of the number of defendant doctors or healthcare providers.  If one or more hospital or other healthcare institution is involved in the lawsuit, there is an additional $250,000 in non-economic damages that can be recovered against each hospital or healthcare institution with a total maximum of $500,000 aggregate maximum that can be recovered against all hospitals and healthcare institutions.

The caps on damages only apply to non-economic damages.  Non-economic damages include pain and suffering, mental anguish, disfigurement, and physical impairment.  For those types of “intangible” damages, the above caps apply.  There are no caps on economic damages.  Economic damages include items such as past and future medical expenses, lost earnings and loss of earning capacity and loss of household services. 

In a wrongful death or survival lawsuit, in addition to the above caps, there is a maximum cap of $500,000 (which is adjusted for inflation).

What is the statute of limitations for a medical malpractice claim in Texas?

A statute of limitations is a law that governs the time limit for filing a lawsuit.  In Texas, the statute of limitation for filing a medical malpractice lawsuit is two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed.  The statute also provides that for minors under the age of 12, the statute of limitations is extended until the minors 14th birthday.  However, because of constitutional issues, it is believed that the statute of limitations for a minor will not run until 2 years from the minor’s eighteenth birthday.

There are some ways in which the statute of limitations may be lengthened, for example, when the injury is not able to be discovered until after 2 years from the date of the tort.  For example, the discovery rule may extend the statute of limitations when a retained sponge is left inside a patient after a medical procedure and is not found until many years later.

There is also a state of repose of ten years.  A statute of repose is an absolute bar to recovery after a set amount of time.  The statute of repose in Texas is ten years from the date of the tort or breach.

We hope that this guide answers some of the basic questions you may have about a potential medical malpractice claim for you or your loved one.  If you have any questions about your specific situation, please feel to call and ask to speak with one of our medical malpractice lawyers at (915) 584-8777 or submit your claim here.

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