Medical Malpractice FAQ

What is Medical Malpractice?

Medical malpractice occurs when a health care provider deviates from the appropriate standard of care while treating a patient. However, medical malpractice is more than the health care provider making a simple mistake. Malpractice occurs when the health care provider does something that other reasonably qualified treatment providers would have not done in the same situation. Malpractice can occur both when a health care provider does something that other reasonably qualified health care providers would not have done and when a health care provider does not do something that other reasonably qualified health care providers would have done.

Can you file a medical malpractice claim against someone other than a Doctor?

A medical malpractice suit can be lodged against any individual or entity who provides health care. This includes, for example, doctors, nurses, technicians, physical therapists, optometrists and hospitals.
What are my potential compensations for medical malpractice?
When medical malpractice occurs, the victim is entitled to monetary compensation for any injuries that result. Since injuries sustained due to a health care provider’s negligence can be fatal or life threatening, damages that can be recovered include:

  • Mental and Physical Pain and Suffering
  • Disfigurement
  • Past and Future Medical Expenses
  • Past Lost Wages
  • Diminished Future Earning Capacity
  • Diminished Quality of Life
  • Loss of Companionship

Is there a minimum or maximum amount that can be recovered?

In 2003, the Texas legislature enacted “tort reform” which severely limited the amount that medical malpractice victims can recover. In any medical malpractice action filed on or after September 1, 2003, regardless of the number of causes of action asserted, non-economic damages are capped at $250,000 from all doctors and other individuals. Non-economic damages are also limited to $250,000 from each hospital or other institution and a total of $500,000 from all institutions. The cap applies to each “claimant,” which includes everyone seeking damages due to one person's injury or death.  Non- economic damages include such harms as pain and suffering, physical and emotional distress, disfigurement, loss of quality of life, physical impairment and the loss of a loved one. These types of damages compensate injuries and losses that are not easily assigned a dollar amount. Economic damages, such as medical bills and lost earning capacity, are not included in the cap.

Can your average lawyers effectively act as medical injury lawyers and handle a medical malpractice claim?

No. Medical Malpractice cases are extremely complex, expensive and time consuming. The attorney who handles these cases should be experienced in handling medical malpractice claims and have sufficient resources to have the case reviewed by appropriate experts.
Should I obtain my own medical records or should I get an attorney to obtain them for me?

It is often better that the patient attempt to get his or her own medical records first. When doctors and hospitals see requests from medical injury lawyers, such requests put them on notice of a potential claim. Records can be lost or even changed in some instances after a request from an attorney is received. A review of the medical records is essential to our evaluation of your case.

How do I obtain my medical records?

Texas state law grants patients the legal right to obtain copies of their medical records. A request for copies of the medical records, made in writing, is presented to the medical facility or health care provider. It will take time to obtain the records, and frequently requests need to be made in a number of areas. Your health care provider is allowed to charge you a fee for copying your record. They may also charge you for the actual cost of postage or delivery.

If you believe your health care provider has violated your right to see or get a copy of your medical records, you have the right to file a complaint with the Office for Civil Rights, the U.S. Department of Health and Human Services, or the state agency that regulates your health care provider.

Under Texas law, you also have the right to sue in Texas to get access to your medical records.

How do I obtain a copy of someone else’s medical records?

Under the HIPAA Privacy Rule, it is difficult to obtain someone else’s medical records without the proper authorization. Generally, if you have the right to make health care decisions on someone’s behalf (i.e. you are listed as someone’s agent on his or Medical Power of Attorney), you have the right to obtain his or her medical records. Generally, parents have the right to obtain their minor child’s medical records because parents are usually considered to be the personal representative of a minor child.

Do I have to file a lawsuit within a certain time period (“statute of limitations”)?

Generally, a victim of medical malpractice has a limited time period in which he or she must pursue a civil lawsuit or be forever barred. While the length of this period varies depending upon the type of claim filed, in most instances you have two years from the date of malpractice to bring a claim.  Notice to certain governmental entities like State of Texas teaching hospitals and county hospitals have a much more urgent notice provision, and there are other exceptions to the statute of limitations, so if you believe that you may have been the victim of medical malpractice, you should seek the advice of an attorney without delay in order to preserve your claim.

Why do attorneys turn down malpractice cases?

After “tort reform,” attorneys are less able to pursue medical malpractice cases, leaving many injured persons without recourse. There can be any number of reasons why an attorney is not able to take a case, including:

  • The cost of bring the case to trial exceeds what the case could reasonably expect to be resolved for. Since medical malpractice attorneys are required, for example, to retain medical experts just to file a medical malpractice case, these cases are extremely expensive to pursue.
  • After medical malpractice caps were imposed, limiting the amount recoverable, insurance companies are less likely to settle and more willing to bring a case to trial. The costs of going to trial are often prohibitive and would leave the victim of malpractice uncompensated if the costs of going to trial eat up the entire recovery. A medical injury lawyer would do her client a disservice if she knew that proceeding to trial would still leave her client with no actual recovery, even if the case is won.
  • Attorneys may not be able to locate an expert willing to say that there has been malpractice and that the malpractice was the cause of the injury or death. Without such expert testimony, medical malpractice plaintiffs generally cannot prevail.
  • The severity of the injury caused by the malpractice is often an important consideration for attorneys. A serious injury with long-term consequences, such as injuries during birth, a heart attack, or permanent disability are more likely to bring a viable lawsuit than a temporary injury. Although it is distressing to learn that a medical procedure could have resulted in a very bad outcome but did not, our firm will generally not sue for what might have happened.
  • The statute of limitations may have run, barring the claim under Texas law.

Why do I have to have an expert establish that I was harmed?

In order to prevail in a medical malpractice case, you must prove that the standard of care was not followed in your case. Expert medical witnesses are thought to have the experience, training and understanding of the level of care associated with a particular medical procedure required to gauge the standard of care provided in your case. Under Texas law, a plaintiff must, within 120 days of filing a health care liability claim, provide expert reports addressing the issues of liability and causation for each physician or health care provider against whom a claim is asserted. Expert testimony is also needed at trial to establish medical malpractice.  Good physician expert witnesses are not easy to find and can charge extremely high hourly rates to review cases. However, experienced medical malpractice and medical injury lawyers have the resources to find qualified experts. Since physicians in the same state usually do not testify against each other, expert witnesses must usually be retained from out of state.

Do I have a medical malpractice case?

Without examining the specific facts of your case, it is impossible for our firm to tell you whether or not you have a case. Any results obtained in a medical malpractice case are dependent on the facts of that case and results differ from case to case.

In order to prove that medical practice has occurred, we have to prove that the health care provider has deviated from the accepted standard of practice for that type of medicine.  To win a medical malpractice case, you must typically have expert medical testimony that states that no reasonable health care provider would have done what yours did. Furthermore, you must also prove through expert medical testimony that the negligence of your health care provider was the cause of the injury or death. For example, if you suffered harm during a medical procedure, but the doctor’s negligence did not cause the harm (which was the result of some other factor), we may not be able to able to pursue a case on your behalf.  When you or a loved one suffered a bad outcome, this does not necessarily mean that malpractice has occurred. For example, the bad outcome may have been caused by an unintended complication. Many complications are contained on the informed consent form you sign when visiting a health care practitioner and are generally not considered to be malpractice. Some common complications include infection and bleeding.  Finally, we must show that you suffered damages as a result of your health care provider’s negligence. For example, if your doctor was negligence but you were not harmed by his or her negligence, he may not be liable.  If you suspect that you or a loved one has experienced medical malpractice, call us.