August 12, 2020
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  • 3:12 pm Personal Injury Law – Medical Malpractice
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Medical Malpractice

Medical malpractice is the failure of a health care professional or institution such as a hospital to follow the standard of care in treating a patient with the result that the patient is injured as a result of that failure to follow the standard of care.

As a practical matter, it is very hard for a lawyer to bring a successful medical malpractice lawsuit. As a result, I have been forced to become very, very selective in what medical malpractice cases I will consider.

In a nutshell, a good medical malpractice case should be based on an error that is simple enough to explain to a bright young child and involves death or very serious permanent damage. (In contrast, I’m happy to take an auto collision with small damages.)

The reason that medical malpractice cases in Texas have become so difficult recently are these:

1) There is a two-year statute of limitations to bring medical malpractice actions. Although there are some exceptions, in most cases, the case has to be filed within two years of the injury. So, starting from the day on which you suffer some type of injury or harm because of medical malpractice, you have two years to go to court and get your lawsuit filed. Or, if the harm occurred as part of an ongoing course of health care treatment, the two-year “clock” doesn’t start running until that course of treatment is concluded. Texas also has a rule in place that says once more than 10 years have passed since the alleged medical error occurred, you will have lost your right to file a medical malpractice lawsuit in Texas. This is known as a “statute of repose,” and it acts as something of a larger catch-all filing deadline. And finally, a note on medical malpractice lawsuits that are filed on behalf of young children: In Texas, when a child under the age of 12 is the plaintiff, a medical malpractice lawsuit must be filed by that child’s 14th birthday.

2) The Texas Supreme Court has made it absolutely clear that when the complaint is filed the attorney must include an expert affidavit (in most cases) explaining how the defendant breached the standard of care and that this breach in the standard of care caused the injury complained of. This is much different than the situation with almost all other lawsuits. In almost all other lawsuits, the plaintiff can make allegations when the complaint if filed and will have time after the filing of the complaint to back them up. The material to back up the lawsuit sometimes comes from the defendant because the Plaintiff, after filing suit, is allowed to ask the defendant questions under oath. But with a medical malpractice lawsuit, the Plaintiff in most cases essentially has to put his or her case together before filing within one year of the injury. You can see that if someone goes into a hospital for a simple operation and dies, it might or might not be so easy to understand why the person died, what each doctor or other health professional did wrong, and how this wrongful act caused the death, especially if all of the health care professionals stick together and keep their mouths shut.

3) The combination of both of the above factors means that an attorney does not want to look at a possible medical practice case within a few to several months of the one-year statute running. If an attorney were to spend three months looking into a case 8 months after the malpractice occurred and then decide not to take the case, the client would only have one more month before the statute ran and no other attorney would want to be working under that kind of deadline to put the case together.

4) It is very expensive to hire other doctors to give affidavits and testimony in a medical malpractice case. This is much different than an auto accident case in which there is an almost free police report.

5) The law limits the amount of compensation a medical malpractice victim can receive. There is a per-claimant $250,000 cap on non-economic damages in medical malpractice cases against a physician or health care provider. For medical malpractice cases against a single health care institution, there is a per-claimant $250,000 cap on non-economic damages.

6) Often, doctors, like the police at a coroner’s inquest, enjoy a favorable initial impression.

7) Typically doctors can tell their malpractice insurance company not to settle even if the insurance company would like to settle. Doctors may prefer not to settle because all of the malpractice settlements become available to the public.

Now that we have discussed some of the difficulties of all medical malpractice cases, let’s look at some specific types of cases:

Simple Goofs:

Sometimes the breach of the standard of care is easy to demonstrate. The wrong leg is amputated. A radiologist injecting gas into the intestine to get better image misconnects the machine and blows up the gut. Large foreign bodies are unintentionally left in the abdomen. Unfortunately, things you might think are obvious breaches of the standard of care are not. For example, the colon is perforated during a colonoscopy. Sorry, the mere fact of that this happened doesn’t prove anything. Colon perforation is known, and fortunately uncommon risk of a colonoscopy.

David Johnson

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