How a Texas Medical Malpractice Lawyer Can Help Maximize Your Recovery on Your Claim, or Defend Against Unworthy Claims

What Constitutes Medical Malpractice under Texas Law?

Unexpected death and surprise surgery complications has been a very controversial aspect of the medical profession compared to others. During the 2020 pandemic many elderly patients have fallen victim to substandard care in nursing homes. People often wonder about just how much victims and survivors alike can recover when a lapse of judgment occurs causing unintended consequences. Although it is an unpopular health care statistic, medical errors do take place in the medical profession, as best the administration and medical boards try to regulate and supervise doctors.

Knowing the ever-changing tide of medical malpractice law in Texas can help one who believes that he or she has been the victim of a failure to properly diagnose, or procedure that resulted in death or surgery complications—can help compensate the victim’s family members, improve the doctor-patient relationship and ensure adequate checks-and-balances are in place on the medical profession.

To learn more about the elements that must be proven in the State of Texas in an ordinary medical malpractice injury claim as well as the common ways for these cases to be disproven and dismissed, it is worth it to spend a few moments by reading further.

What are the Elements of Successful Medical Malpractice Lawsuits under Texas Law?

According to the authoritative National Trial Law resource, Texas malpractice suits can be committed by not only medical doctors and surgeons against elderly and minors alike, but to the following categories of health care providers:

Nurses
Medical technicians
Pharmacists
Chiropractors
Physical therapists
Obstetricians/gynecologists

One theory of understanding whether a medical malpractice lawsuit can go forward relates to the principle known as the “loss of chance” theory.

One theory is that medical malpractice claims exist when a patient suffers a “loss of chance” of avoiding death or injury as a result of surgery or a missed diagnosis. In other words, had the patient been informed of the risks associated with a particular surgery, or had been properly diagnosed, the patient would have more than likely survived.

As a matter of principle, as reported in Medical Economics, if the likelihood of dying from the failure to properly diagnose a patient is 50% or greater, then there is a traditional theory that supports recovery against the doctor or hospital.

Unfortunately, the trend in Texas of recognizing a victim and the survivors’ right to recover money damages for a doctor’s failure to diagnose is not the current state of law in Texas, as it is in two-thirds of other states. As the online medical journal Medical Economics states, a more equitable rule would be that even small “lost” chances, in other words of less than 50%, or even far less than that number—should allow a victim, or victim’s surviving family members to make the doctor and hospital liable.

The Texas Supreme Court has ruled: The “loss of chance” doctrine is not good law as it is in other states for victims of failures to timely diagnose serious illnesses such as cancer for suits against their doctor and hospital staff. Kramer v. Lewisville Memorial Hospital 831 S.W.2d 46 (Tex. App.1992),

The elements of medical malpractice cases in Texas have nuances to distinguish between “medical negligence” and “medical malpractice.” As distinguished by GoodRxHealth, the former term “negligence” refers to a doctor “accidentally” rendering services that lead to an injury and/or death of the patient. Whereas, the latter refers to a doctor knowing of the danger of a particular surgery and deliberately or recklessly advising a patient, or misdiagnosing a patient, leading to injury, complication or death.

A claimant must meet the elements for medical negligence under Texas law involving these four elements:

Duty
Breach of the Standard of Care
Causation
Damages (economic or non-economic, punitive or compensatory)

A skilled Texas medical-malpractice lawyer advocating for a claimant of negligence could persuade the court that a doctor’s actions fell below the standard of care, which directly caused the injured patient complications or even death.

In contrast, the National Library of Medicine defines malpractice claims allow a jury to judge the doctor’s work by an expert witness, usually another caregiver or similarly skilled doctor, and determine whether the doctor “deviated from accepted norms of practice in the medical community and cause[d] an injury to the patient, by act or omission.

Another issue can be when a doctor’s surgical procedure amounts to an independent cause of action for battery, as mentioned on the Houston-based Painter Firm website, or “unconsented medical treatment”:

According to the National Library of Medicine, the elements include:

Disregarding the patient’s wishes.
Performing one surgery substantially different from the expected surgery.
Not providing informed consent to perform a certain surgery.

Last, according to the Texas Medical Liability Trust resource, patient abandonment can serve as an independent basis for a lawsuit.

Patient abandonment in Texas is defined when “without reasonable notice to the patient, a physician unilaterally discontinues treatment at a time when continued medical treatment is necessary.”

A skilled medical malpractice lawyer can zealously advocate for you to determine whether abandonment has indeed occurred and the necessity of the treatment that was not given.

What are the Time Limits and Procedure for Filing Medical Malpractice Claims?

Often the greatest challenge to successfully bringing a medical malpractice personal injury case is timely bringing suit on the matter, or before the statute of limitations is said to “run.”

Once the statute of limitations has run in Texas, it is too late to bring a case and there is no alternative way of a victim to pursue justice for their injuries.

According to National Trial Law, the state of Texas prohibits victims of medical malpractice from bringing a lawsuit if they wait more than two years from the date of their injury. This rule comes from Texas’ Subchapter F of Texas Civil Practices and Remedies Code.

Although that is a rule of thumb, there are of course exceptions that a skilled and seasoned medical malpractice lawyer would be able to detect and apply in your case.

Some examples include “injuries to minors,” “negligence by government healthcare providers,” “the late discovery of provider negligence,” among other lesser-known exceptions.

Statutes of limitations exist to ensure that evidence remains “fresh” and in the judgment of the courts and legislature claims are more likely to have merit. Another reason is not to inconvenience the other party by waiting an unreasonably long time to report the injury when it could have done sooner, especially when evidence proof of injury is stronger, such as the aggravation of an injury caused by a surgical complication or grave illness as a result of a misdiagnosis that improves over time.

Common Defenses for Medical Personnel and Doctors Relating to the Standard of Care

According to the premier legal resource and directory Nolo.com, medical malpractice claims can be considered harder to pursue effectively if some, or all, of the following is true:

The victim’s expert witness testimony (i.e. testifying doctor on behalf of the injured patient) is found to be unreliable or unqualified.
Damages asked for by the injured party are excessively high, economic or non-economic such as mental distress and suffering, such as “punitive damages” intended to “punish” the doctor or hospital.
The victim cannot prove with strong credible evidence of causation between the doctor’s alleged negligent act and the patient’s injuries.
The victim was partially, whether in part or in full, to blame for the incident.
The owner of the property had warned the victim of the hazard and yet the victim ignored such warnings and injured him or herself.

Texas medical malpractice law requires a skilled advocate who can represent the injured victim or doctor accused of malpractice will have the resources and expertise to know how to zealously represent either party.

Legal Options: How Much Can an Injured Victim Expect to Recover for a Medical Malpractice Claim?

Based on the skill and experience of the medical malpractice lawyer handling a victim’s case, a client can recover greater amounts if the lawyer stays up-to-date with the everchanging landscape of medical malpractice theories of liability. This includes “statutory damage caps” on non-economic damages, or general suffering as opposed to bills incurred, the changes in the factors determining grounds for recovery and other procedural hurdles allowing cases to be heard by a jury of the client’s peers, often guaranteeing multi-million dollar verdicts for particularly malicious and egregious cases involving catastrophic injury resulting in deaths of patients.

What is the Importance of Hiring a Skilled Medical Malpractice Lawyer?

Commonly malpractice injuries take place in many contexts: from everyday health care encounters and follow-up appointments with primary physicians who may fail to conform to the proper standard of care, to less common, although equally serious problems dealing inadequate supervision by nursing staff, in cases involving the elderly. Many top-rated law firms specialize in these cases, including Sorrel Law, the national personal injury firm McDonald Worley, P.C., among others in the Houston area and surrounding areas, many offering a free consultation.

For such a Texas law firm competent in Texas medical malpractice law, a health care legal specialist will ask you, the client, questions to maximize the value of your case or minimize liability in exploring your legal options—whether you are a victim or the medical professional defending against the claim. In any case, you should be prepared to create a narrative of facts detailing everything that you remembered before, during and after the accident, including keeping meticulous records of medical care expenses made to recover. As a doctor facing a lawsuit, where one’s professional reputation is often at stake, it is also imperative to share any insurance company policy maintained and provide all known information that could be helpful for the lawyer to assess and test the strength and validity of the victim’s claim.

Forming an Attorney-Client Relationship: Call a Medical Malpractice Personal Injury Lawyer Today to Discuss Your Case and Odds of a Obtaining a Favorable Settlement!

Whether you are a victim or medical personnel or physician, having the right malpractice attorney on your side can navigate the complexity of statutory damage caps on non-economic damages, often leading to the greatest recoveries. The attorney-client relationship forms upon consultation when you consider hiring the attorney. Failing to be adequately prepared can result in not being compensated for a serious injury with clear liability, such as if the attorney is not particularly qualified in the particular case brought.

Likewise, this can result in excessive payouts for non-meritorious malpractice claims and in turn can cause a medical practice to be in jeopardy of disciplinary action and loss of goodwill. In any case, Lawsuit.org will help you pinpoint the right medical malpractice personal injury attorney offering a free consultation to obtain the just result you deserve.