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The ins and outs of unavoidable healthcare injuries under Texas law

The failure to diagnose and treat an unavoidable injury may still be negligent

I bet we’ve all heard some variation of the old saying that “bad things happen sometimes.”

Medical and hospital care is no different. The truth is, there is generally some sort of risk associated with any type of healthcare. Bad things or complications can happen even when a physician, nurse practitioner, physician associate (the newly minted term for physician assistants), certified registered nurse anesthetist (CNRA), nurse, therapist, or tech does everything right and provides appropriate care.

This is the major purpose behind the informed consent process, which is part of the large stack of papers the patients are asked to sign before treatment. In reality, Texas law imposes a non-delegable duty on physicians to go over the risks and benefits of any proposed treatment, procedure, or surgery, vs. alternatives, including doing nothing at all. Some do a better job than others. (Based on my experience, most don’t do a great job in handling informed consent).

It’s easy to think of many examples of complications that could be unavoidable even with proper care. Two types immediately come to mind:

• An allergic or anaphylactic reaction to a new medication. We are working on a case now in Dallas where a healthy patient died from an anaphylactic reaction to contrast media given before an abdominal CT scan.

• A vital organ that is lacerated, cut, or damaged during an abdominal or genitourinary surgery. This happens more often than you would think. It occurs, for example, when a patient has a laparoscopic surgery for gallbladder removal (cholecystectomy) or appendicitis (appendectomy), and trocars or other surgical equipment accidentally slits or damages the bowel, spleen, or stomach.

The long and short of it is, just because an injury like this happens doesn’t necessarily mean that there was medical negligence.

That not the end of the question, though. It doesn’t necessarily mean that the surgeon, physician, or healthcare provider is absolved of any responsibility—instead, the question focuses on whether the complication or injury was timely diagnosed and treated.

Just because a patient goes into anaphylactic shock after being given a radiographic contrast medium or other drug doesn’t mean there was negligence. It is negligent, though, if the imaging center, hospital, or facility doesn’t have emergency physician coverage to handle this very predictable complication.

Just because a surgeon inadvertently injures a patient’s bowel doesn’t mean there was negligence. It is negligent, though, if the surgeon and operating staff don’t identify the injury and the contents of the patient’s bowel leak into the abdominal cavity, causing a smoldering infection and sepsis that ends up killing the patient.

If you’ve been seriously injured because of a hospital, surgical, or medical issue in Texas, then contact a top-rated experienced Texas medical malpractice lawyer for free consultation about your potential case.

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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