When a person is severely injured by medical malpractice, family members often are left wondering how to pay for future health care.
That’s what happened to a young Texas mother whose baby was born with a brain injury and cerebral palsy. The mom, Ana Ramirez, filed a medical malpractice lawsuit on behalf of her son. Let’s call him Andy.
Around 33 weeks into her pregnancy with Andy, Ana went to Valley Regional Hospital on a Friday night after her water broke prematurely and she went into labor.
During the prenatal period, she had been followed by an obstetrician. Ana’s obstetrician spoke with the hospital’s labor and delivery nurses and ordered electronic fetal monitoring of the baby’s heartbeat. The doctor wasn’t at the hospital during the weekend and depending on the nurses for appropriate monitoring and communications.
On Sunday night, the fetal heart rate monitor showed the baby’s heartbeat had repeatedly dropped.
The first drop, or deceleration, lasted 2 minutes. Then 20 minutes later, there was a 7-minute deceleration. After another 20 minutes, the fetal heartbeat dropped so low that the labor and delivery nurses couldn’t even get a reading.
Ana’s medical and nursing experts were critical of the nurses for not calling the doctor until 20 minutes after there was no detectable fetal heartbeat. What a long delay!
Once the nurses finally notified Ana’s physician, he ordered a stat (immediate) ultrasound and rushed to the hospital. When her obstetrician arrived around 19 minutes later, it seemed that the hospital and nurses hadn’t been in a hurry to address the concerning situation:
• The ultrasound that the doctor had ordered hadn’t been done. In fact, the ultrasound tech wasn’t even at the hospital.
• The informed consent paperwork hadn’t been signed.
When the ultrasound technician eventually arrived at the hospital and did the ultrasound, it showed minimal heart activity. The obstetrician ordered an emergency C-section. Once Andy was delivered, the doctor saw the umbilical cord was tightly wrapped around his neck. This is called a nuchal cord.
When the umbilical cord was wrapped around the baby’s neck, it makes it difficult to breathe. Over a prolonged period of time, this hypoxic (low oxygen) state can cause brain damage and cerebral palsy.
Brain injury requires significant future care
When the case went to trial, the jury awarded over $10 million for future care that Andy would likely require.
How are future medical expenses paid out in a medical malpractice case?
Under Texas Civil Practice & Remedies Code Section 74.503(a), which applies to medical malpractice cases, a health care defendant has the right to request that a jury award for future medical care payments be made periodically (in installment payments) rather than as a lump sum.
Once a defendant makes this request, the trial judge must order periodic payments “in whole or in part.”
I believe there are a few key reasons why the legislature enacted this tort reform law:
• It saves the health care defendant’s money. The life expectancy of the plaintiff is typically a hotly contested issue in medical malpractice cases. The longer the life expectancy, the higher the damages. If the plaintiff dies before the anticipated future medical and health care is required, then the defendant’s obligation to pay ends.
• It encourages medical malpractice plaintiffs to enter pre-suit settlements through mediation or direct negotiations. Although health care defendants and their insurance companies factor in the periodic payment requirement to the amount of money they offer to settle a claim, when there’s a settlement, it will typically be in a lump sum.
Until recently, there had been few opinions from Texas appellate courts interpreting this 2003 tort reform statute, particularly the mysterious “in whole or in part” language.
In November 2022, the Texas Supreme Court entered a corrected opinion in Ana’s case that sheds some practical light on how trial courts should apply to the statute. The case is styled Columbia Valley Healthcare System, L.P. d/b/a Valley Regional Medical Center v. A.M.A., A Minor, by and through his mother, Ana Ramirez, as next friend and Ana Ramirez, Individually; No. 20-0681 (Tex. Feb. 23, 2022). You can read the opinion here.
The statute itself doesn’t specify how the trial court should decide what portion of a jury award should be paid up front versus over time.
In the Columbia Valley opinion, the Texas Supreme Court held that the trial court’s decision must be based on evidence. This means that after a jury verdict in favor of a medical malpractice plaintiff, the trial court can hold a separate evidentiary hearing to determine what money will be needed for future medical care. An experienced Texas medical malpractice lawyer will be ready for that hearing with ample evidence to show how much money is needed up front.
The court also held that a jury doesn’t have to make a specific finding of life expectancy or specify an annual dollar amount that should be paid to the plaintiff for future medical care. From a practical perspective, this makes sense because to require otherwise would make the jury’s job even more difficult. The court’s opinion underscores the fact that the jury makes some specific determinations, and it’s up to the trial judge to make other specific determinations.
In footnote 7 to its opinion, the court addressed a lingering question on whether special needs trust would run afoul of the Texas statute. Special needs trusts are used to hold funds for health care in certain other uses, without jeopardizing a person’s ongoing eligibility for Medicaid or other means-tested governmental programs. The court noted that a special needs trust remains an available tool for the trial court to use in appropriate cases.
Texas medical malpractice experience matters
This case illustrates the complexity of Texas medical malpractice law. That’s why it matters who you hire to represent you in a Texas medical malpractice case. Contact a top-rated, experienced Texas medical malpractice attorney for a free strategy session about your potential case.