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Who's responsible when medical malpractice leads to more medical malpractice?

Original tortfeasor docrine

There are several common questions that will hear from our clients and people wanting to hire us to handle their medical malpractice cases. One of them is whether to sue what I’ll call a “downstream” healthcare provider.

An example should help this make sense.

A middle-aged man is healthy and working full time. On the way to work, he’s in a motor vehicle accident. He is able to get out of his car and walk away independently. An ambulance takes him to a nearby hospital, without immobilizing and protecting his neck. The emergency room (ER) doctors and nurses see a patient without a c-collar protective device on his neck, and don’t do a proper assessment of his cervical spine, even though it’s required by the standard of care.

Instead, the ER team consulted with the trauma surgery service to address the patient’s other injuries. He’s taken to the operating room, where the anesthesiologist and certified registered nurse anesthetist (CRNA) make the false presumption that another provider has already cleared the patient’s cervical spine. They proceed to insert a breathing tube (intubate) conventionally and it is general anesthesia.

After surgery, the patient wakes up and notices strange feelings in his lower extremities, which progress into paralysis. Over the next day, the symptoms produce upper extremity. His symptoms are addressed and by the time a spine surgeon is involved and takes him in to surgery, he’s already quadriplegic. For the rest of his life, he won’t have normal function of his arms and legs.

The case I described illustrates a cluster of medical and nursing errors from the moment the patient entered the hospital essentially through his discharge. Speaking of discharge, at the conclusion of his hospitalization the patient is transferred to a long-term acute care (LTAC) nursing facility.

While at the nursing home, the patient develops terrible pressure injuries on his sacral (buttocks) area and heels. They get infected and required surgical debridement. This happens over and over.

When the client hires Painter Law Firm to handle his medical malpractice case, our focus is on the original negligence the causes his quadriplegia. After securing the appropriate experts who will pursue the case, the client asks, “What about the nursing home in the poor care that’s causing my bedsores?”

It’s certainly possible to pursue a medical negligence claim against the nursing home and the appropriate members of its medical staff; however, it’s also important to realize that the patient wouldn’t have been in the nursing home in the first place but for the medical negligence that occurred at the hospital after his car wreck.

In my experience, naming a downstream provider, such as the nursing home in this illustration, can be confusing to a jury. That’s why a common law concept called the original tortfeasor doctrine is crucial to keep in mind. It's been long recognized in Texas and many other states.

The original tortfeasor doctrine has been recognized in the State of Texas for decades. It stands for the proposition that a party who wrongfully injures a person is liable for damages for the consequences of the medical malpractice that follows. In an interesting admission, Texas courts have failed over and over to recognize that medical malpractice is foreseeable!

So, if the negligent driver caused the car wreck in our example above, the person would be responsible for both the medical malpractice at the hospital and the nursing home. Similarly, the original tortfeasor doctrine applies in settings of double malpractice. Thus, the negligent healthcare providers from the hospital are also responsible for the medical malpractice that occur downstream at the nursing home.

If you’ve been seriously injured because of poor health care in Texas, it’s important to hire a top-rated lawyer with significant experience and knowledge about medical malpractice law.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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