Medical malpractice lawsuits that you cannot file under Texas law

During a recent meeting with our Painter Law Firm’s support staff, we discussed the type of medical malpractice cases that are difficult or impossible to pursue under the strict laws in the State of Texas. The conversation got interesting and a bit shocking for some people, as I outlined some terrible healthcare that could never be the subject of a lawsuit.

For example, as a result of the 2003 round of tort reform in Texas, there is a heightened standard of proof required for plaintiffs who are the victims of medical malpractice that occurred in a hospital emergency room setting.

Hospital emergency room care

Generally speaking, in all kinds of negligence cases, including medical malpractice, the plaintiff’s burden of proof is preponderance of the evidence. At trial, I explained this legal standard to the jury as meaning more likely than not.

When it comes to emergency medical care provided in a hospital emergency room, though, tort reform laws make the plaintiff’s burden of proof substantially higher—wilful and wanton negligence, which the Texas Supreme Court has interpreted to be equivalent to gross negligence. Under this draconian standard, a plaintiff must prove that a healthcare provider had subjective actual awareness of a medical condition that posed an extreme degree of risk to the patient, and that the provider objectively proceeded in conscious disregard to that risk.

Considering that, most of the time, the evidence focuses on what is documented in the medical records, you can understand how it would be difficult to meet the wilful and wanton negligence standard. Indeed, the practical effect of the tort reform law is that a plaintiff would never be able to succeed in suing a doctor in a typical misdiagnosis case taking place in a hospital emergency room.

Time and time again, I have met with potential clients who told me how they went to a hospital emergency room with symptoms of a stroke. I am talking about things that 99 out of 100 people would be able to recognize as a likely stroke—things like one-cited facial droop and physical weakness, and slurred speech. For some reason, based on cases that I have reviewed, emergency physicians and neurologists sometimes arbitrarily discount stroke symptoms and conclude that the patient is having a psychological problem, like anxiety.

As an experienced Houston, Texas medical malpractice attorney, I know how to review the medical records very carefully to see if there is any evidence that could potentially meet the legal standard. Using the example of a stroke patient, let’s say that the patient is actually having a stroke, but the doctors do not document any of the stroke signs and symptoms in the medical record, but instead write that the patient is having an episode of anxiety. In that situation, Texas law does nothing to protect the patient who was the victim of this clear medical malpractice.

Consider another example, this time of a radiologist botching the interpretation of a head CT scan. If the CT scan showed a brain hemorrhage, stroke in progress, or a brain tumor, but the radiologist interpreted it as completely normal, then the victimized patient could not sue the radiologist under Texas law. Even though that radiologist probably interpreted the CT scan in a dark room somewhere far away from the emergency room, he or she is still protected by wilful and wanton negligence standard.

I find this all quite alarming and scary, in that I believe an unintended consequence of the Texas tort reform law is that it promotes shoddy emergency room care based on the lack of accountability.

If you find yourself in a hospital emergency room and believe that the doctors are downplaying your condition, then I suggest that you speak to a nurse and doctor to insist that they document the serious and clear signs and symptoms that you believe are present. Hopefully that will get their attention and cause them to go through the differential diagnosis process that the standard of care requires, rather than making a haphazard diagnosis of exclusion.


From time to time, potential clients call our office and share how they were expectant mothers at 38, 39, or 40 weeks gestation, with uncomplicated pregnancies, who lost their babies because of substandard health care provided during labor and delivery.

If the negligence of a doctor or nurse causes the stillbirth of a term baby, then the case is not likely economically feasible under Texas law. To me, this is incredibly odd for state with a pro-life legislature and governor. To show how far Texas law goes to protect doctors and hospitals, there is a separate legal standard for criminal cases than civil casesis a really , when it comes to an unborn baby.

If an unborn baby dies as a result of a car wreck caused by drunk driver, that is a criminal offense. If a doctor, nurse, or hospital causes the death of an unborn baby by negligence, the law allows no cause of action on behalf of the baby. Instead, only the mother can sue the healthcare providers for the loss of a body part—yes, Texas law considers an unborn baby, even at full-term, to be a body part of the mother.

Injured minors

Prior to the 2003 round of tort reform, for individuals who were injured before their 18th birthday, the two-year statute of limitations did not begin running until their 18th birthday. Generally, then, the statute of limitations for any medical negligence, even at labor and delivery, did not expire until the patient’s 20th birthday.

Texas Civil Practice & Remedies Code Section 74.251(a) states the current law as it applies to the medical malpractice statute of limitations for minors. Minors under 12 years of age at the time of the negligence have until their 14th birthday to file a medical negligence lawsuit.

On top of that, Texas Civil Practice & Remedies Code Section 74.251(b) created a new statute of repose, which states that no medical malpractice case can be filed more than 10 years after the date that the negligence occurred.

Public hospitals

Although not a part of tort reform legislation, medical malpractice lawsuits against government-owned hospitals and government-employed doctors have special requirements and limitations.

While generally, the statute of limitations for an adult to bring a medical malpractice case in Texas is two years, lawsuits against public hospitals and employees have special notice provisions. Unless the government has actual notice of the incident and alleged negligence—which is difficult to prove—then a potential plaintiff must provide notice under a rather aggressive timeline. For state hospitals and employees, a plaintiff must provide notice of the potential claim within six months. For county and city hospitals employees, the notice requirement varies, but in some instances is 60 days.

Even if a plaintiff meets the notice requirement, there are other limitations that apply to suits against the government and its employees.

Under the Texas Tort Claims Act, the State of Texas and its political subdivisions, like counties, can only be sued for two types of negligence. These types of negligence include injury involving the use of a motor vehicle or tangible personal property.

In the context of medical malpractice, the question almost always revolves around whether tangible personal property was involved in the negligence. Tangible personal property refers to something you can touch and feel. Therefore, misdiagnosis by a government-employed doctor could not be the subject of a lawsuit, because it does not involve tangible personal property. Similarly, a radiologist employed by the government who misreads a CT or MRI scan cannot be sued for that mistake.

Finally, even plaintiffs who comply with the strict notice requirements and can identify negligence related to the use of tangible personal property are faced with damages limits. For negligence cases against the state government or its employees, the total is $200,000. For political subdivisions, the total is typically $100,000.

Considering that medical negligence cases brought against state and county government healthcare providers are also subject to the costly requirements of Texas law, like expert witnesses, it is easy to see how such cases are rarely economically viable.

What you can do

If you or someone you care for is seriously injured as a result of medical malpractice, then it is important to realize that Texas law makes time of the essence in terms of your contacting an experienced medical malpractice lawyer to review your case. For a free consultation about your potential case, call Painter Law Firm, in Houston, Texas, at 281-580-8800.


Attorney Robert Painter, at Painter Law Firm PLLC, in Houston, Texas, files medical malpractice and wrongful death lawsuits on behalf of injured patients and their families. He has been repeatedly recognized, including this year, as one of Houston’s top lawyers by H Texas magazine and Houstonia magazine, and has received a 10/10 ranking by Avvo. In addition, Robert Painter is 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.