There are many legal steps necessary for a Texas medical malpractice plaintiff to successfully prove her case.
First, of course, there must be evidence that a physician, hospital, or healthcare provider did something wrong or violated the standard of care. Next, the mistake or negligence must be linked to an injury, harm, or damages to the plaintiff.
In order to link or connect the sub-standard care or medical mistake to the patient’s injuries, the plaintiff has to provide enough evidence to satisfy a legal standard called proximate causation.
Proving that poor medical care was a proximate cause of the plaintiff’s injuries requires two elements.
The first element, cause-in-fact, is fairly straightforward. The medical mistake had to be a substantial factor in bringing about the injury, and without it, the injury wouldn’t have occurred.
The second one, foreseeability, is sometimes a little more difficult to wrap your head around. Foreseeability was a topic addressed by the Texas Supreme Court in a recent opinion styled The University of Texas MD Anderson Cancer Center v. McKenzie, No. 17-0730 (Tex. June 20, 2019). You can read the opinion here.
This significant opinion divided the court, with five justices siding with the pro-plaintiff majority opinion. The Chief Justice, joined by two other justices, wrote a dissenting opinion.
Pro-plaintiff decision on Tort Claims Act requirements
Before discussing the court’s findings on foreseeability, it’s worth mentioning that the opinion bucked attempts to restrain the scope of viable cases beyond the statutory language of the Texas Tort Claims Act.
The court’s McKenzie opinion addresses several issues regarding MD Anderson’s attempts to evade responsibility for a patient’s death as a result of alleged medical malpractice concerning the use of a drug known to cause a dangerous condition called hyponatremia (low blood sodium levels). When not properly treated, hyponatremia can cause brain swelling, herniation, and death. That’s exactly what the plaintiffs allege happened in this case.
As a state public hospital, MD Anderson benefits from Texas Tort Claims Act protections. One of these specifies that the state only waives sovereign immunity in situations where the negligence involves the use of tangible personal property. MD Anderson argued that there was nothing wrong with the drug, so the plaintiff was essentially complaining about a medical decision, which isn’t covered by the Tort Claims Act. The court rejected the hospital’s argument and plea to the jurisdiction on the ground that the plaintiff presented evidence that the drug in question was used when it shouldn’t have been and that the drug is what harmed the patient.
What’s required for evidence of foreseeability
For a violation of the standard of care by a physician, hospital, or healthcare provider to be a proximate cause of the plaintiff’s injuries or damages, there must be evidence that harm was foreseeable. That seems easy enough, but defendants frequently argue that the standard is so demanding that it’s pretty much unattainable.
That’s why I was so excited to read this common-sense opinion out of the Texas Supreme Court. I think this opinion will be helpful in the preliminary (Chapter 74) expert report stage, as well as to defeat pretrial motions for summary judgment.
MD Anderson’s basic arguments were twofold. First, the patient’s death was a possibility, but wasn’t predictable. Second, hospital providers took precautions to prevent the patient from developing the possible complication of hyponatremia, which rendered the risk of death unforeseeable. The court swiftly and authoritatively rejected both arguments.
This opinion by the Texas Supreme Court provides language that will help plaintiffs meet the foreseeability standard, including:
• Foreseeability does not necessarily equate to predictability. Rather, “foreseeability” means that the actor should have reasonably anticipated the dangers that his negligent conduct created for others.
• Foreseeability “does not require that a person anticipate the precise manner in which the injury will occur once he has created a dangerous situation through his negligence.”
• It’s only required that “the general danger, not the exact sequence of events that produced the harm, be foreseeable.” Accordingly, the plaintiff need not always show that his particular injury has occurred before in order to create a fact question on foreseeability.
• MD Anderson conceded that it knew the use of the medication could cause the complication of hyponatremia and implemented treatments because it expected the complication to develop. The court concluded that, “It is therefore clear that, at a minimum, the general dangers associated with the use of the [drug] were known to [the patient’s] doctors. This evidence is sufficient to raise a fact issue on foreseeability.”
• Reducing risk is not the same as eliminating it.
Hiring an experienced attorney
Medical malpractice cases are complex and demanding under Texas law. That’s why it’s important for patients to hire a top-rated, experienced Texas medical malpractice attorney to investigate and guide cases.
An experienced Houston, Texas medical malpractice attorney can help you avoid procedural traps and pitfalls that can doom your case from the start.