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Res ipsa loquitur in Texas medical malpractice cases

Plaintiffs still must comply with tort reform notice and expert report requirements

Over the past four years, I’ve enjoyed getting to help our four children with their Latin homework. It’s been a long time since I took Latin in high school and college, but I still remember a lot of it.

In the last decade or so, there’s been a rapid push to make legal writing more readable and approachable. That means that many of the Latin phrases that once peppered motions and briefs are now less common. There’s one Latin phrase, though, that still comes up from time to time, mainly from other lawyers who call to discuss a potential case. 

Res ipsa loquitur

This is a Latin phrase that literally translates as “the thing speaks for itself.” The legal doctrine of res ipsa loquitur stands for the proposition that some injuries are so clear that negligence can be inferred by the jury, essentially through circumstantial evidence.

But it’s not that easy.

As with most anything that touches medical malpractice claims, the Texas legislature frowned on res ipsa loquitur claims in the 2003 round of tort reform. As a result, Texas Civil Practice & Remedies Code Section 74.201 says, “The common law doctrine of res ipsa loquitur shall only apply to health care liability claims against health care providers or physicians in those cases to which it has been applied by the appellate courts of this state as of August 29, 1977.”

The classic example of res ipsa loquitur negligence that is recognized under Texas law is leaving a surgical sponge or instrument inside a patient’s body. The Texas Supreme Court explained that, “Sponge cases . . . rarely occur, they never occur absent negligence, and when they do occur, laypeople are hardly impressed to discover the wrong.” Walters v. Cleveland Reg’l Med. Ctr., 307 S.W.3d 292, 298 (Tex. 2010). Another example that’s recognized is a surgeon intentionally operating on the wrong body part under the mistaken impression that it was the correct one.

Based on examples such as these, some attorneys who aren’t experienced in Texas medical malpractice matters may believe that they have a slam-dunk res ipsa loquitur case and won’t even need a medical expert.

That’s wrong, though–even these cases don’t escape the tort reform requirement of having a medical expert to link the medical negligence to patient injury. 

A plaintiff lacking that mandatory expert support was the subject of a recent case opinion entered by Houston’s 14th Court of Appeals. The case is styled Michael Floeck v. Crescent Continuing Care Center Company, 14-21-00101-CV. You can read the opinion here.

In that case, the plaintiff was a patient during a six-week stay at a continuing care nursing facility. He claimed to develop bedsores, or pressure injuries, during that admission because the nursing staff failed to reposition him appropriately.

The plaintiff filed the lawsuit and the nursing facility answered. The filing of the answer triggered a 120-day deadline for the plaintiff to serve a medical expert report. When the plaintiff failed to do so, the defendant filed a motion to dismiss, which the trial court granted. The plaintiff appealed the dismissal.

The plaintiff argued that he wasn’t required to serve an expert report because the medical records alone were sufficient to establish causation and damages. He argued that an expert report would be “redundant under the circumstances, based on the doctrine of res ipsa loquitur.”

It didn’t take long for the appellate court to overrule this argument. It was no surprise to me, given that the plaintiff’s argument hadn’t been recognized in Texas for decades. Although res ipsa loquitur didn’t even apply to a bedsore case such as this one, even if it did an expert report would still be required.

If you’ve been seriously injured because of poor medical, hospital, or nursing home care in Texas, then contact an attorney with significant experience in medical malpractice claims in Texas. Experienced medical malpractice lawyers know the unique requirements that apply to these complex claims under Texas 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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