Texas Medical Malpractice Laws

In times of poor health, we invest a hefty amount of trust in medical professionals. Their authority and know-how lend peace of mind during an otherwise stressful moment of our lives. It can create unparalleled distress if we find that the healthcare provider in whom we put our trust has been negligent in executing their duties.

You may choose to bring a malpractice suit against a negligent healthcare professional. In this case, you will need the services of an experienced attorney to guide you through the labyrinthine legal process. The state of Texas imposes certain restrictions and requirements for those who wish to file a malpractice suit. You need to be aware of what these are prior to filing. This page gives an overview of how medical malpractice claims are generally handled in Texas – but you are strongly advised to consult a licensed medical malpractice attorney about the specifics of your case.

Suing For Medical Malpractice in Texas

In Texas, medical malpractice suits can be filed for “treatment, lack of treatment or other claimed departure from accepted standards of medical care” that result in injury or death to the patient. [1] Remember, it must be proven that this harm resulted from the healthcare professional’s negligence. A patient could theoretically be harmed at any point of treatment, but the only harm that resulted from negligence can constitute a medical malpractice claim.

Texas defines negligence as a conscious act (or omission of info) that entails an extreme risk of harm to others, which the perpetrator was aware of and still proceeded with – thus demonstrating “conscious indifference to the rights, safety, or welfare of others.” [2] Texas also stipulates that negligence must ‘willfully and wantonly’ depart from the ‘standard of medical care’ owed to the patient. Standard of care will vary by the healthcare professional’s practice area. [3]

What is meant by ‘omission of information?’ Information, in this case, means all the risks and hazards associated with treatment. It is the patient’s right to give informed consent for the treatment they receive, so by law they must be aware of all associated risks. There is an exception to this rule, however: a medical emergency takes precedence over the need for a patient’s consent. [4] The legal interplay between these two things can get sticky. In fact, two of the largest chunks of Texas’ medical malpractice law deal exclusively with informed consent and emergency care. The state allows for suits to be filed against doctors who fail to disclose risks and hazards, if it was not during an emergency situation and if those risks “could have influenced a reasonable person in making a decision to give or withhold consent.” [5] These are the only circumstances where exceptions are made in risk disclosure, otherwise the requirements are quite rigid. Set by the Texas Medical Disclosure Panel and annually updated, the requirements for risk disclosure hold that disclosure is only valid when given in writing and signed by the patient, or the person authorized to consent for them. Again, in the case of a medical emergency, failure to disclose risks will most likely not be considered negligent, so long as the treatment was in “good faith.” [6]

How Long Do I Have To A File A Medical Malpractice Case in Texas?

Before bringing a claim forward, you have to make sure it’s still within your rights to do so. Texas imposes a statute of limitations, including time limits, for filing medical malpractice cases.

A claim must be filed within two years of the malpractice incident, or two years from the conclusion of the hospitalization episode when the malpractice occurred. Minors under the age of 12 have until their 14th birthday to file or have someone do so on their behalf. If the harm inflicted from the medical malpractice is not immediately evident or perceptible, then claimants have 10 years to bring their claim forward. If the injury is not discovered within 10 years of the malpractice incident, a claim cannot be filed for it. [7]

If you determine it’s still within your rights to file, you have to notify each physician or health care provider by written mail of your intent to a file a claim, at least 60 days before you file it. All parties involved are entitled to obtain the medical records of the claimant, which must legally be supplied to them within 45 days of their request. Also within 45 days of filing, you must provide the defendant or their attorney with complete responses to the standard set of interrogatories (questions). Within 45 days of the due date for their answer to your petition, they must provide you or your attorney with complete responses to the standard set of interrogatories. If agreed upon by all parties, either of these 45-day limits may be extended by 30 days, but no more. [8]

In Texas Medical Malpractice Cases, Who Is Responsible?

The state of Texas provides that health care institutions and health care providers alike may be liable in medical malpractice cases.

A health care provider is defined as any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including:

• a physician
• a registered nurse
• a dentist
• a podiatrist
• a pharmacist
• a chiropractor
• a optometrist
• a healthcare institution:
  • an ambulatory surgical center
  • an assisted living facility
  • an emergency medical services provider
  • a health services district
  • a home and community support services agency
  • a hospice
  • a hospital
  • a hospital system
  • care facility for the mentally retarded
  • a nursing home
  • an end stage renal disease facility
• an officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician
• an employee, independent contractor, or agent of a health care provider or physician [9]

What If I Am Partially To Blame? Can I Still Recover Money For TX Medical Malpractice?

Texas is one of 22 states that follows the 51% bar rule; 12 states follow the 50% bar rule. What this means is that the damaged party cannot recover money if they are found to be 51% or more at fault for their injuries. Although every state uses different verbiage with differing implications, Texas law states that the “plaintiff may find his damages reduced by his portion of fault.” You are only entitled to those damages if the court determines you are 50% or less at fault for your injuries. [10]

So, if you contributed in any way to your injuries, to a point of more than 51%, you are barred from recovering damages. If you contributed to your injuries to a point of 50% or less, the amount of damages you’re entitled to will be the same percentage as the fault assigned to the healthcare provider. This may sound confusing, but in practice, it’s quite simple. Let’s say you sue for medical malpractice and win. The court finds that the doctor is 75% at fault for your injuries and you are 25% at fault. Let’s assume the court awards $100,000 in damages. You will only be entitled to $75,000. You lose $25,000 because of your 25% contribution to your own injuries. If you were 50% at fault for your injuries, you would receive $50,000. If you were 51% or more at fault for your injuries, you would not receive damages at all, because of the 51% bar rule.

But how could I be at fault for my own injuries, you wonder? Let’s look at an example of how fault may lay with both parties.

Your doctor prescribes you a medicine that contains a substance you’re allergic to. You properly disclosed the allergy to your doctor, but they negligently prescribed it to you anyway. They explicitly instructed you not to drink alcohol while taking this medication, but you drank alcohol while taking it regardless. You become sick. If you file a claim over the incident, the court may rule that the doctor was 50% at fault for prescribing you that medicine, knowing of your allergy. But they also assign you 50% of the blame for not following the explicit instructions of your doctor. If the court had determined you were 51% responsible in the incident, you would not be able to recover any damages at all. But as you were only half responsible, you are entitled to damages.

In states with the 51% rule, you can be half to blame and still recover money, as long as you are not more than half to blame. In the twelve states with a 50% rule, if you are half to blame you cannot recover money.

Other states impose wildly different laws with regard to comparative fault. Some states have adopted the ultra-stringent doctrine of pure contributory negligence, which holds that a plaintiff who contributed to their own injuries even by 1% is barred from recovering damages. Pure contributory negligence is only at work in the jurisdictions of Alabama, District of Columbia, North Carolina, Maryland, and Virginia.

The remaining states follow the doctrine of pure comparative fault – polar opposite in principle – which holds that a plaintiff can recover money even if they are 99% at fault for their injuries. However, when damages are rewarded, they may only recover the percentage that the other party was at fault for. So if the doctor is 1% at fault for their injuries, they may only collect 1% of the damages. They are still legally entitled to that 1%, while in other states they are not.

Are There Medical Malpractice Recovery Caps in Texas?

In 2003, Texas Governor Rick Perry overhauled the medical malpractice law in Texas, the main consequence of which was a new $250,000 recovery cap for non-economic damages in malpractice suits. (Non-economic damages are defined as non-monetary losses suffered by the claimant, such as pain, suffering, inconvenience, emotional distress, loss of society and companionship, loss of consortium, and loss of enjoyment of life. Economic damages are monetary losses incurred by the claimant, such as past and future medical expenses, loss of wages, or loss of employment or business opportunities. Texas likewise caps economic damages, limiting them “to the amount actually paid or incurred by or on behalf of the claimant” and nothing more. A handful of states allow for economic damages to be doubled or tripled in exceptional cases. A defendant [the healthcare professional] may incur punitive damages as well if convicted. Punitive damages are exclusively for the purpose of punishment, usually in cases of reckless or malicious behavior. In applicable cases, the defendant must pay the punitive penalty but this will not be awarded as compensation to the claimant.) California and Montana share the same recovery cap.

Perry called his legislation the “most sweeping tort reform in the nation.” The result was an influx of medical professionals relocating to Texas. Low risk of liability is a potent incentive for doctors to practice in a given state. Prior to this reform, the New York Times described Texas’ physicians per capita ranking as “abysmally low.” Texas may have gained a wealth of human capital because of Perry’s legislation, the consequence was a relative hit to the justice system for injured claimants. No matter how severe the damage exacted by a negligent medical professional, they will be liable for no more than the patient’s economic losses (i.e. medical expenses), and at maximum $250,000 more in non-economic damages, and an additional $250,000 each if there is more than one defendant institution. [11]

To put this in perspective, 12 states impose no limit on how much money an injured party can recover in a medical malpractice case – in Arizona, Pennsylvania, and Wyoming imposing recovery limits in medical malpractice cases in constitutionally prohibited. Eight states impose a non-economic limit of $1 million dollars or slightly more. The remaining 30 states have limits in the neighborhood of $350,000 – $750,000. By comparison, Texas’ $250,000 limit sits on the lower end of the spectrum.

Expert Witness Reporting And Testimony

In order to qualify as an expert witness in a malpractice suit, an individual must meet the following qualifications:

For suits against physicians, the expert witness must:

a) currently practice medicine or have previously practiced medicine at the time the claim arose

b) have knowledge of the accepted standard of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim

c) be qualified by training or experience to offer an expert opinion on the standard of care

– This may include training residents as well as medical school students

Further qualifying an expert witness, Texas law asks the court to consider whether the witness is board certified or has other substantial training or experience in an area of medical practice relevant to the claim. In addition, the court must consider whether the witness is currently practicing medicine and rendering care in the practice area relevant to the claim. It is possible for the court to depart from this criteria if they find a good reason, which they must state and explain on record. [12]

If any party objects the qualifications of a witness, they must make said objection within 21 days of receiving the curriculum of the witness’ selection. If extraordinary circumstances generate a late objection relating to the qualifications of a witness, the 21-day limit need not apply.

It is permissible for a witness to be examined or cross-examined with regard to their qualifications. It is also permissible for the defendant themselves to be considered an expert physician who may testify.

For suits against healthcare providers, the expert witness must:

a) currently practice health care in a field that involves the same type of care as the defendant or have been practicing at the time the incident that gave rise to the claim occurred

b) has knowledge of the accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim

c) be qualified by training or experience to offer an expert opinion on the standard of care

Identical provisions apply regarding objection of witness qualifications for suits against health care providers. [13]

Are some parties immune from medical negligence cases?

Texas law states that the provisions of its medical liability law do not waive the doctrine the sovereign immunity. [14] This means that governmental entities are protected from lawsuits for monetary damages. [15] Political subdivisions of the state and its employees are likewise entitled to the state’s immunity unless waived. [16] A government entity may consent to a suit, but it will still be immune from the judgments rendered in the rulings.

Per the doctrine of sovereign immunity, a suit brought against a government employee who was acting within their scope of employment will be ruled out. A 1994 case, Kassen v. Hatley, established that government-employed medical personnel was not entitled to sovereign immunity. However, in 2011 the Texas Supreme Court issued ten decisions relating to medical liability, including a major one regarding sovereign immunity. Government-employed medical personnel are now shielded from suit by sovereign immunity. Now, if an individual seeks to file suit against government-employed medical personnel, they must have a claim that meets the obscure requirements laid out in the Texas Tort Claims Act. These are injury or death resulting from the government employee’s operation or use of a motor-driven vehicle or motor-driven equipment, or injury or death caused by “use of tangible personal or real property.” The idiosyncratic, almost cryptic nature of this legal overture underlines the need for a good attorney, well-versed in malpractice law.

In sum, state-employed doctors are shielded from medical liability in the state of Texas.

The legal dialogue on the issue is far from resolved, though. In 2015 a Texas court ruled the University of Texas Physicians Clinic was not subject to sovereign immunity despite being falling under the administrative umbrella of the University of Texas, a state institution. It was determined that the “status and authority of [UTP] derived from actions by the UT System Board, not the Legislature.” This opens the door to claims against the clinic, but more significantly shows that governmental immunity is not universally applied, but must be explicitly proven and legislatively predefined for the exact entity in question. [17]

Setting medical malpractice cases in TX

Although Texas does not mandate the reference of a pretrial screening panel or arbitrator, the state legislature has authorized counties to use alternative methods and systems for dispute resolution. [18]

Texas law also states that no physician may ask a patient to arbitrate (settle completely outside the court) a claim unless it is in a written, conspicuous agreement, rendered in normal (not fine) print. Such an agreement would explicitly state that the patient is waiving important legal rights, including the right to a jury, and must be signed by the patient’s attorney in order to be valid. [19]

Litigating medical negligence cases in Texas

There are myriad steps, deadlines, and guidelines involved in successfully litigating a malpractice case in Texas. If you fail to meet any of these deadlines or adhere to these guidelines there is a great chance your case may be thrown out, therefore it’s of the utmost importance that you diligently follow all the necessary steps for litigation, in a timely manner.

Initiating the case

To initiate a claim in a Texas medical malpractice case, you must serve the defendants in your case with a written notice of your intent to file a claim, at least 60 days beforehand. The notice must include the completed authorization form for the release of your protected health information. The defendants will have 45 days to obtain the health records released by the authorization form. Not completing the authorization form will halt all further legal proceedings.

Preparing for litigation

After the written notice and the defendant’s answer have been filed in the appropriate courts, the parties may begin the process of discovery. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

Within 45 days of filing, the plaintiff must serve the defendant or their attorney with complete answers to the standard set of written interrogatories set by the Health Care Liability Discovery Panel, as well as complete responses to the standard set of document requests. The defendant must do the same for the plaintiff. Generally, no objection may be made toward any standard interrogatory, however, no response is required if a particular interrogatory is clearly inapplicable.

Written interrogatories are written questions sent to the opposing side, requesting answers that will be used to establish the facts presented at trial.

No later than the 120th day after the defendant’s answer, the plaintiff must serve the defendant with at least one expert report regarding the circumstances of the claim, as well as the curriculum by which the expert was selected. If there are any objections to the expert report, they must be filed within 21 days of being served, else the objection is invalid.

Serving the expert report is exceptionally important; failure to do so will result in dismissal of the claim and the defendant health care provider will be compensated for the legal fees they incurred due to the claim. If the claim is refilled, it is reviewed with prejudice by the court. No expert reports in any other areas are needed by the court – only ones related to liability and causation. Until the necessary report is served, all other forms of discovery are stayed, except for the production of medical records. [20]

Depositions are another avenue of discovery. A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. A deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary.

Pretrial litigation

Given the arduous and tedious nature of litigation, it is not unheard of for a case to settle outside of court, before ever going to trial. This is where the topic of arbitration comes into play. As mentioned earlier, counties in Texas have been authorized to adopt alternative dispute resolution systems, and this includes mediation to avoid going to the lengths of a full-blown trial. Anytime prior to trial, a settlement between the disputing parties is permitted.

Trial

In the likely event that no settlement is reached pretrial (the state does not have many legal provisions favoring pretrial settlement), the case will go to trial. However, it is not uncommon for cases to take several years before they see their day in the courtroom. The length of time will likely depend on whether the case is filed in a district court or smaller county court. District courts often take longer. Trial dates can be difficult to firmly establish.

Once the trial has commenced, all admissible evidence will be presented to the “trier of fact,” which in this case is the jury. Certain requirements exist in selecting potential jurors in the state of Texas.

A juror must:

• Be at least 18 years of age
• Be a United States Citizen
• Be a resident of the state and county in which the case is being tried
• Be qualified to vote in that county (although not necessarily registered to vote)
• Be of sound mind and good moral character
• Be able to read and write
• Not have served as a juror for at least 6 days within the last 3 months in a county court or the last 6 months within a district court
• Not convicted, indicted, or accused of any misdemeanor, theft, or felony

“Voir dire” is legal jargon for the procedure lawyers conduct to screen potential jurors for any biases they may possess, specifically those that would sway or prejudice their judgment of the case in any way. Once this process of screening and questioning is complete, the jury is impaneled, and the trial is put in motion.

The plaintiff argues their case first. After opening statements from both sides, the plaintiff’s attorney presents all admissible evidence, then calls all their witnesses to the stand. Witnesses are questioned and more than likely will be cross-examined by the defendant’s attorney. Once all evidence has been presented, the plaintiff will rest their case.

At this point, the defense begins presenting their evidence and will attempt to show why negligence was not the cause of the incurred injury. When both sides have concluded their presentations, the jury will be handed down instructions, begin to deliberate the case and come back with their finding.

Appeal

Often, the losing party of a lawsuit will seek an appeal to the court’s decision. An appeal allows a higher court to review the decision made in a court below it. Generally, there is a 30-day deadline to file an appeal.

How to find the best Texas Medical Malpractice Lawyer for your case

If you have considered filing a medical malpractice claim, you or a loved one have likely suffered great pain and distress at the hands of a negligent healthcare provider, and rightfully seek recompense for those hardships. Your selection of attorney can have a substantial bearing on the outcome of your case, so it is a critical base to cover if you wish to bring your claim to trial. Handing off your case to skilled legal representation will leave you free to focus on your recovery or the recovery of your loved one. Therefore it’s of paramount importance to make sure your case has been placed in capable hands.

Remember, you are hiring an attorney to suit your needs and are entitled to a careful, thoughtful search conducted at your own pace. Do not let an attorney pressure you into hiring them on the spot, rather, interview multiple. You want to feel confident in your pick. Narrow down your search to a docket of viable candidates, weigh the pros and cons of each, then make an informed decision.

So what criteria should you consider when looking to hire an attorney? Knowledge and experience are above all, the currency of the legal realm. Feel free to inquire as to their level of experience when looking at prospective attorneys. If they have litigated a case similar to your own, they may have more in-depth insight regarding the length of time involved, damages you may be entitled to, and overall costs involved in litigating that kind of case.

You won’t need to be best friends with your attorney, but you should be able to freely and comfortably communicate with them. Lack of solid communication may give rise to rifts or accidental omission of important information in a case, so if you and a potential attorney do not communicate well, you are probably best moving on to another candidate.

Some notable medical malpractice law decisions from Texas

Kassen v. Hatley

Kassen. v Hatley called the nature of official immunity into question. Centered around the 1988 suicide of Pennie Johnson, the suit was filed by Johnson’s parents against her treating physician, nurse, and two health care institutions. Johnson was a chronic mental health patient. When she was discovered wandering along the side of a highway by a police officer, she was escorted to the Parkland ER. There, she informed nurses that she took her depression medication seven times daily, which exceeded the prescribed dosage. After witnessing her taking additional pills in their care, the nurse and physician confiscated Johnson’s pills. This angered Johnson, who demanded them back. Ultimately the doctors would not return them, lest she accepts their condition of taking a taxi home, at the hospital’s expense. She did not accept the condition, left the hospital, and committed suicide by stepping into freeway traffic. When Johnson’s parents sued, Kalra, the physician, and Kassen, the nurse argued that they were subject to sovereign immunity, seeing as they were employed medical personnel of a government entity. Ultimately, the Texas Supreme Court ruled that although Kalra and Kassen’s actions were within their scope of employment and in good faith, they were not necessarily conducted with governmental “discretion.” All three aspects are required for immunity to apply, therefore it did not. The case laid the groundwork for suits to be filed against medical personnel employed by a government entity. [21]

Franka v. Velasquez

During the delivery of Stacey Velasquez’s son, his front shoulder became obstructed in a rare but well-documented birthing emergency, known as shoulder dystocia. While trying to free the infant’s shoulder with their hands, Franka, a practicing physician, and Reddy, a medical resident, heard a snap which they knew to mean a bone had broken. The baby survived but required surgery. The parents sued. The court determined that the physician was a government employee acting within his scope of employment and thereby was subject to immunity. Reddy, however, as a resident, could not be considered a government employee in the full capacity of the term. Thus, she was subject to the claim of negligence but Franka was not. Two Texas Supreme Court justices dissented, relying heavily on Kassen’s findings as their grounds for dissent. Nevertheless, the decision of the TSC was upheld – government physicians acting within the scope of their employment are now subject to immunity. [22]

Footnotes

[1] Tex. Civ. Prac. & Rem. § 74.001, (7)

[2] Tex. Civ. Prac. & Rem. § 41.001, (11), A, B

[3] Tex. Civ. Prac. & Rem. § 74.153

[4] Tex. Civ. Prac. & Rem. § 74.104

[5] Tex. Civ. Prac. & Rem. § 74.101

[6] Tex. Civ. Prac. & Rem. § 74.151

[7] Tex. Civ. Prac. & Rem. § 74.251

[8] Tex. Civ. Prac. & Rem. § 74.051

[9] Tex. Civ. Prac. & Rem. § 74.001, (11, 12)

[10] Tex. Civ. Prac. & Rem. § 33.001, 33.012

[11] Tex. Civ. Prac. & Rem. § 74.301

[12] Tex. Civ. Prac. & Rem. § 74.402

[13] Tex. Civ. Prac. & Rem. § 74.401

[14] Tex. Civ. Prac. & Rem. § 74.003

[15] Texas Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002)

[16] Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex. 2003)

[17] Lenoir v. UT Physicians

[18] Tex. Civ. Prac. & Rem. Code Ann. §§ 152.001 to 152.004

[19] Tex. Civ. Prac. & Rem. § 74.451

[20] Tex. Civ. Prac. & Rem. § 74.352

[21] Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex.1994)

[22] FRANKA v. VELASQUEZ, 332 S.W.3d 367 (Tex. 2011)