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Why lawyers can't accept your case to sue a hospital or doctor

Tort reform, other laws place barriers in front of medical malpractice victims

As a former hospital administrator, I have a keen interest in promoting and seeing patient safety improvement. In fact, that’s a major reason why I became a medical malpractice attorney. I believe the accountability and financial incentives generated by the civil justice system are often what are necessary to see real positive change in health care.

Of course, tort reform lobbyists don’t see things that way. They describe attorneys who help seriously injured people as “ambulance chasers” and run advertisements touting this online and throughout the media.

That’s why I think many people who’ve been seriously injured in Texas because of poor medical or healthcare are surprised and exasperated to find that it’s difficult to find an attorney who can help them. In large part, this is because of legislation achieved by the same tort reform crowd that has sold the false narrative of ambulance chasing.

In this article, we’ll discuss some of the common reasons why a person who is seriously injured because of substandard health care in Texas may find it difficult or impossible to find competent legal representation to pursue a medical malpractice case.

Damages

Texas tort reform laws imposes a strict cap on money that a jury can award for non-economic damages in a medical malpractice case. Non-economic damages include injuries such as pain, suffering, mental anguish, disfigurement, and physical impairment.

Depending on who is named as a defendant in a medical malpractice lawsuit, the non-economic damages will be capped at $250,000 (if only one hospital/facility, physician, or provider is named), $500,000 (if one hospital/facility and one physician or provider is named), or $750,000 (in the rare instance when more than one hospital/facility is named, along with at least one physician or provider).

Texas tort reform legislation does not limit economic damages, including things such as past and future medical bills and lost wages/loss of earning capacity.

In situations where a plaintiff/claimant is retired, were unemployed, and there are not significant past or future medical bills, the potential recovery of a medical malpractice lawsuit will be limited to the amount allowed by the non-economic damages cap.

It’s important to realize, though, that that proving medical negligence doesn’t automatically entitle the plaintiff to receive the cap. Instead, the amount is left to the discretion of the jury. Because it’s hard to put a dollar figure on harms and losses such as mental anguish or physical pain and suffering, jurors are sometimes influenced by the evidence of economic damages. When there are limited or no economic damages, there may be a considerable risk of having a jury award of far less than the non-economic damages cap, even in the event of a plaintiff’s verdict.

The overall impact of the tort reform cap has been to make many cases where there’s a real injury because of medical malpractice nonviable economically. Capped cases require the same amount of work in investment in costly medical, nursing, and other experts as non-capped cases. Because case expenses are advanced by the attorney but repaid by the client out of any eventual recovery, it may not be a good return on investment for an attorney or client to pursue litigation in a capped case.

Wrongful death  beneficiaries

When a person dies because of medical malpractice, only limited relatives may pursue a wrongful death case. The Texas Wrongful Death Statute defined wrongful death beneficiaries as including a decedent’s surviving parents, spouse (ceremonial or common law), and children (natural or legally adopted).

Regardless of how close an aunt, uncle, grandchild, cousin, or friend was to a decedent, these individuals cannot be a wrongful death beneficiary or pursue a wrongful death lawsuit.

Timing

In general, there is a two-year statute of limitations in Texas for negligence cause of action. Medical malpractice claims are a type of negligence cause of action. The Tort reform statute states that minors (less than 18 years old when the injury occurred) have until age 14 to file suit. Additionally, tort reform laws also impose a statute of repose of 10 years, which is intended to put a hard stop on all equitable grounds to toll the statute of limitations.

Even in the case of minors, though, a significant amount of damages is taken off the table after two years. That’s because all claims involving a minor legally belong to the parents until the minor turns 18 years old. Thus, all past and future medical bills and other expenses up to the age of 18 would be  time barred after two years (unless there’s some argument to toll the statute of limitations).

Medical malpractice lawsuits are complex, unlike many other types of negligence lawsuit. When a car wreck occurs, for example, a good lawyer may choose to file the lawsuit the next day. Medical malpractice lawsuits, though, require the early support of one or more medical, nursing, and other experts very early in litigation.

Specifically, Texas Civil Practice & Remedies Code Section 74.351 requires a medical malpractice plaintiff to serve on all defendants one or more expert reports within 120 days of each defendant filing an answer to the lawsuit. If those reports aren’t timely served, or are found to be insufficient under the law, the tort reform statute requires the trial judge to dismiss the lawsuit and order the plaintiff to pay the defendant’s attorney’s fees—all it takes is a motion of the defendant to start that process.

For these reasons, many experienced Texas medical malpractice lawyers are reluctant to accept cases that are getting within a few months of the statute of limitations. It takes a considerable amount of time and effort to obtain all the relevant medical records, organize and analyze them, and secure expert support.

Experts

As discussed above, the Texas tort reform statute requires medical malpractice plaintiffs to have the support of one or more medical, nursing, and other experts early in the litigation. That’s also true at the time of trial.

At least one medical expert will always be necessary in a health care liability claim, because it takes a licensed physician with experience in the particular issues of the case to provide an opinion that links the alleged medical or healthcare mistakes to the injury and harm to the patient. Nursing, pharmacy, tech, and other experts may be needed as well.

There are some types of bad patient outcomes that can’t be linked to negligence. These are cases that experienced medical malpractice attorneys will decline on the basis that they know, or feel that is highly unlikely, that there will be success in securing the mandatory support of a medical expert.

The informed consent process is mandated to make sure that patients are aware of the risks and any proposed medical treatment or procedure. Some injuries can occur despite proper medical and nursing care.

For example, we are frequently contacted by people who’ve experienced intraoperative injuries to vital organs during a laparoscopic abdominal surgery. It would be a rare situation when a surgical expert would be supportive of a medical malpractice claim of these situations. The idea behind this is that some of these injuries are unavoidable, even with good care.

On the other hand, that’s not to say that informed consent excuses negligence. Let’s continue with our example and say a patient was having a laparoscopic surgery to repair an abdominal hernia and the bowel was nicked or lacerated. It’s unlikely that a surgical expert would find that the damage to the bowel was negligent, but if the treating surgeon failed to diagnose, repair, and treat the leaking bowel, then that could be the subject of the medical malpractice claim that a surgical expert may support.

Public hospital or employees

At common law, it is impossible to sue the government or any government employee acting in the course and scope of employment. There is a statutory exception called the Texas Tort Claims Act, which waives sovereign and official immunity in strictly limited situations.

First, the governmental agency must have received notice of the circumstances of the claim within a short time, unless the agency already had actual notice. It varies by governmental agency, but the deadline is never more than six months.

Second, as applicable to medical malpractice cases, the claim must involve the use or condition of tangible personal property. Tangible personal property is something that you can touch and feel. Thus, the state-employed surgeon who negligently used a scalpel, causing a serious injury, would fall within the Tort Claims Act exception. Yet, a state-employed radiologist who misinterpreted a CT scan could not be pursued.

Third, there are special caps that apply to the overall damages in the case, including both economic and non-economic damages. Again, the exact cap varies by governmental agency, but ranges from $100,000–$250,000.

We are here to help

One of the hardest things we do at Painter Law Firm is having to tell potential clients that we can’t help them for one of these reasons.

The best way to determine if you have a viable medical malpractice case under Texas law is to contact an experienced, competent Texas medical malpractice lawyer for a free consultation about your potential case. Remember that timing is important, so the sooner you make that call, the better your opportunity to secure thoughtful, effective legal representation.

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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