Houston appellate court issues opinion protecting future medical expenses in birth injury malpractice case

Texas law imposes numerous restrictions on what medical malpractice plaintiffs can recover in a lawsuit. A competent, qualified medical malpractice lawyer can help you properly evaluate your claim.

There is not an absolute “tort reform” cap for medical malpractice cases

If the patient survives the medical malpractice, the good news is that recoveries are not absolutely capped at $250,000, as some patients—and even some attorneys who do not handle these types of claims—seem to think.

Any element of economic damages is not subject to the so-called tort reform cap.

Non-economic versus economic damages

Broadly speaking, there are non-economic damages and economic damages. Non-economic damages are subject to the tort reform cap ($250,000 for all healthcare providers; $250,000 for each hospital or facility, up to $500,000 maximum), but economic damages are not.

Economic damages are harms and losses that can generally be defined monetarily. Things like lost wages, loss of earning capacity, and medical bills are economic damages.

There's a separate wrongful death cap

If the patient doesn't survive the medical malpractice, but is survived by a spouse, child, or parent, there can be a wrongful death cap. Bear in mind that there's a separate inflation-adjusted cap that applies to all wrongful death damages. It's currently around $2 million.

Past medical bills for treatment caused by negligence

One of the more recent developments in damages law applicable to medical malpractice cases is how courts determine the correct amount of medical bills that can be awarded to a plaintiff.

Texas Civil Practice & Remedies Code Section 141.0105 limits the recovery of medical or healthcare expenses to the “amount actually paid or incurred on behalf of the claimant.” In the 2011 Haygood v. DeEscabedo opinion, the Texas Supreme Court ruled that Section 141.0105 only allows recovery of medical expenses that have been paid or must be paid by the claimant.

As a Houston, Texas medical malpractice lawyer, the topic of medical bills comes up all the time in client meetings. Patients and family members express concern and fear that they have been billed hundreds of thousands of dollars for hospital and physician expenses. I explain to them that, under Texas law, those high-dollar amounts are not automatically recoverable.

Instead, when it comes to past medical bills, we have to investigate further.

If the plaintiff’s medical bills were paid by a health insurance company, Medicare, or Medicaid, then the amounts that were actually paid are recoverable. Of course, pretty much any time a health insurer, Medicare, or Medicaid pays a medical bill, there is a drastic reduction of the initial bill. For example, I have seen $100,000 bills reduced to $25,000. In addition, any amount that the patient paid out-of-pocket, or still legally owes, is recoverable at trial. If the hospital or healthcare provider writes off any portion of the bill, then the amount written off is no longer recoverable at trial.

Future medical bills that will likely be incurred because of the negligence at issue

Part of the job of any good medical malpractice lawyer is to present expert testimony as to what additional future medical and healthcare the plaintiff will require because of the alleged negligence.

I am sometimes able to present this testimony from treating physicians or expert witnesses that I have retained on behalf of my clients to provide negligence opinions. In catastrophic cases, though, I often hire specially-trained physicians to evaluate the plaintiff and prepare a life care plan. Life care plans detail the expected care that patients will require because of the alleged negligence over their life expectancy.

To be clear, defendants and their lawyers do not like damages for future care and particularly do not like life care plans. In many medical malpractice and wrongful death lawsuits, we have encountered incredible “out on a limb” arguments from some defense lawyers.

New Houston case on future medical damages

Today, the First Court of Appeals, in Houston, Texas issued an opinion in the case styled Christopher James Glenn, M.D. and Northeast OB/GYN Associates, L.L.P. v. Joseph Leal et. al. This birth injury medical malpractice case was on appeal from the 295th District Court, in Harris County, where the cause number was 2013-44705.

This is an excellent and well-reasoned opinion that provides solid protection for medical malpractice plaintiffs when it comes to preserving future medical damages.

At the trial court level, the jury returned a verdict for the plaintiffs against Dr. Glenn and Northeast OB/GYN Associates, L.L.P. On appeal, the defendants argued that there was legally insufficient evidence for the jury’s award of $1.2 million in future medical expenses.

Specifically, the defendants complained that the calculation of future medical expenses was based on what providers actually charge, and did not consider what they might be entitled to recover if there were unspecified, undefined discounts, agreements, or laws limiting their charges.

The appellate court rejected this argument, commenting that, “To assume that the amount awarded is beyond the amount of future medical bills would be speculative.” The court noted that there was no evidence of any law or contractual agreement that would limit what healthcare providers could charge for medical expenses incurred in the future.

The defense also raised a well-worn Affordable Care Act (ACA) argument, contending that, “with the enactment of the ACA, it is no longer fair to continue to feed the jury the fiction that future medical expenses projected by a life care plan . . . will or could be paid entirely out-of-pocket.” The court also rejected this argument, finding that it assumes that all individuals can and will obtain insurance coverage and, thus, would never be billed at a healthcare provider’s full rate.

Again, I believe that the Court of Appeals was correct on this point, too. Regardless of your position on Barack Obama’s signature accomplishment, I bet everyone can agree that the ACA has certainly not made health insurance premiums more affordable. I have met many people who have been priced out of being able to purchase health insurance since the ACA became law.

For Houston medical malpractice cases, this appellate opinion will be helpful to plaintiffs. Hopefully, other appellate courts throughout the State of Texas will follow the sound reasoning in this well-written opinion.

We are here to help

If you or a loved one has been seriously injured as a result of medical malpractice, call the experienced attorneys at Painter Law Firm, in Houston, Texas, at 281-580-8800, for a free consultation about your potential case. We understand the complex Texas laws that apply to medical malpractice and wrongful death cases, including the amount of damages that plaintiffs are legally entitled to recover.


Robert Painter is an attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical malpractice and wrongful death lawsuits against hospitals, doctors, surgeons, and other healthcare providers. He is a former editor-in-chief of The Houston Lawyer magazine and currently serves on the editorial board of the Texas Bar Journal.

Robert Painter
Article by

Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys 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 for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.