Most of the time, medical malpractice lawsuits must be filed in state courts because they’re state common law claims. Whenever it’s possible, though, we prefer to file them in federal courts.
Texas law presents some undesirable challenges to medical malpractice claims filed in state court.
One hurdle is a requirement set by Texas Civil Practice & Remedies Code Section 74.351. The plaintiff (patient) in a medical malpractice suit must serve one or more written medical expert reports within 120 days of each defendant filing an answer and appearing in the matter.
In addition to consuming time and expense early in the litigation process, plaintiffs’ experts are forced to prepare opinions with limited evidence available to them. This is because the Texas tort reform statute imposes a discovery stay until the plaintiff produces legally-sufficient medical expert reports.
The Texas medical malpractice discovery stay prevents a plaintiff from taking depositions or using document requests to obtain anything but the medical records. This is particularly problematic when hospitals and doctors produce incomplete medical records or when the documentation lacks sufficient detail to figure out exactly what happened and the identity of those involved.
In some situations, it’s possible to avoid these unreasonable and sometimes vexing requirements by skipping state court and filing the lawsuit in federal court. This is thanks to a 2016 Fifth Circuit decision in Passmore v. Baylor Health Care Systems, which held that the Chapter 74 expert report requirement is procedural and doesn’t apply to federal court cases.
There are two ways that a federal court has jurisdiction over a medical malpractice case.
The first is federal question jurisdiction. As the name suggests, a federal question deals with an alleged violation of federal law, rather than state law. Most medical malpractice cases involve facts that fall squarely within the state common law realm. One exception, though, involves patient dumping from a hospital emergency room. These claims involve the federal Emergency Medical Treatment and Active Labor Act (EMTALA) and invoke federal question jurisdiction, meaning that they can be filed in a federal court.
The second type of federal court jurisdiction is called diversity jurisdiction. Diversity jurisdiction exists when the plaintiff and defendants are citizens of different states and the amount in controversy is over $75,000, excluding interest and costs. Virtually any medical malpractice case would meet the dollar-amount requirement, so the key is the citizenship of the parties at the time the lawsuit is filed.
Any time the relevant healthcare occurred in Texas, but the patient is a citizen of another state, it’s worth considering filing the case in federal court.
Last year, Painter Law Firm filed a lawsuit in the Southern District of Texas for a citizen of another state who was injured because of a retained surgical item after a cardiac surgery that was performed in Houston’s Texas Medical Center. This patient lived out-of-state at the time of the surgery, but he traveled to Texas to have a particular surgeon perform the procedure and later returned to his home state.
What about when the patient lived in Texas when the medical malpractice occurred at a Texas hospital, clinic, or physician office, but the patient moves out-of-state before filing a lawsuit? In that situation, there’s still diversity jurisdiction. In fact, we are preparing to file two such lawsuits now.
One involves a Cypress, Texas hospital and obstetrician in a birth injury case. The family lived in Cypress when the baby was born but recently moved to California. Now there’s diversity jurisdiction. In another case involving an infant, doctors and a pediatric intensive care unit crew botched post-operative care at a hospital in the Texas Medical Center. Later, the family moved to Massachusetts, which creates diversity jurisdiction.
In all of the Texas medical malpractice cases that we file in federal court, we avoid the burdensome tort reform requirements of state law and are immediately able to use all of the legal discovery tools we need to develop each case.
If you’ve been seriously injured because of medical malpractice in Texas, then contact a top-rated skilled Houston, Texas medical malpractice lawyer for advice on the best way to pursue your potential case.
