Have Questions About Medical Malpractice? We Can Help.
Table of Contents:
- Do I have to file a lawsuit within a certain time period (“statute of limitations”)?
- Why do attorneys turn down malpractice cases?
- Why do I have to have an expert establish that I was harmed?
- What is “tort reform”?
- What are the potential compensations for medical malpractice?
- Is there a minimum or maximum amount that can be recovered?
- Can your average lawyer effectively act as medical negligence attorneys and handle a medical malpractice claim?
- How do I get my medical records?
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 statute of limitations may have run, barring the claim under Texas law. In Texas, the statute of limitations for medical negligence is generally two-years from the date of the negligence, though certain exceptions exist depending on the specific facts of the case.
- After review, experts may not find that there has been malpractice or, if there was malpractice, that the malpractice was the cause of the injury or death. Without such expert testimony, medical malpractice plaintiffs cannot prevail.
- After medical malpractice caps were imposed by tort reform, 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.
- 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 going untreated resulting in death, or permanent disability is more likely to result in 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.
Why do I have to have an expert establish that I was harmed?
Texas law is unusually demanding in what a patient must prove, and when they must prove it. In order to win a medical malpractice case, we must prove that the standard of care was not followed in your case and harm resulted. Expert medical witnesses are thought to have the experience, training and understanding of the level of care associated with a particular medical procedure or hospital protocol required to gauge the standard of care provided in your case.
Under Texas law, a plaintiff must, within 120 days of the defendant answering in the case, provide expert reports addressing the issues of liability and causation for each physician or health care provider against whom a claim is asserted. Experts must later be designated to withstand motions to dismiss the case, and testimony is also needed at trial to prove medical malpractice. Qualified physician expert witnesses are not easy to find and can charge extremely high hourly rates to review cases and provide opinions, commensurate with their expertise. However, experienced medical malpractice lawyers have the resources to find qualified experts.
What is “tort reform”?
Tort Reform was signed into law by Governor Rick Perry in 2003. This created serious barriers to achieving accountability and was celebrated as a win by the insurance companies who funded the lobbying for the change in the law. In reality, tort reform has made Texas less safe for patients and more profitable for insurance companies.
A 2022 Study in the Journal of Health Economics found “evidence that state adoption of noneconomic caps in med mal lawsuits predicts higher rates of preventable adverse patient safety events in hospitals.”
What are the potential compensations for medical malpractice?
When medical malpractice occurs, real harm can result. Although money cannot make the terrible event have occurred, monetary compensation can help make life easier for the injured person or their family. to monetary compensation for any injuries that result. Since injuries sustained due to negligence can be fatal or life-changing, damages that can be recovered include:
- Past lost wages
- Diminished future earning capacity
- Physical pain and suffering
- Mental anguish
- Disfigurement
- Past and future medical expenses
- Diminished quality of life
- Loss of companionship
- Household services
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. These damages include pain, suffering, mental anguish, sadness over the death of a loved one, loss of quality of life, physical impairment and disfigurement.
Non-economic damages are capped at $250,000 from all doctors and other individuals combined.
Non-economic damages are also limited to $250,000 from each hospital with a total of $500,000 from all institutions. The two-hospital cap would apply, for example, if you were harmed by two separate hospitals.
The cap applies to each “claimant,” which includes everyone seeking damages due to one person’s injury or death. This is true whether the deceased victim had one child or ten children. The cap would remain $250,000 for all claimants.
Economic damages, such as medical bills and lost earning capacity, are not included in the cap.
Can your average lawyer effectively act as medical negligence attorneys 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 and take the cases that need to be tried to trial.
How do I get my medical records?
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.
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 Texas Medical Board, 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.