There are two major components of any Texas medical malpractice case, liability and damages. To have a successful case, the plaintiff needs both.
Liability refers to negligence. This means that the doctor, nurse, or hospital had an act or omission that violated the standard of care. The standard of care is what a reasonably prudent provider would have done under the same or similar circumstances.
Damages refers to the economic and non-economic injuries to the plaintiffs as a result of the negligence. Economic damages include things such as past and future lost income from the inability to work, past medical bills, and future medical bills for care that’s reasonably likely to be necessary because the negligence. Non-economic damages are capped and include things such as mental anguish, pain and suffering, disfigurement, and physical impairment.
From a practical perspective, Texas law forces medical malpractice attorneys for injured patients to begin work on the liability aspect of cases immediately. Under tort reform requirements of the Texas Medical Liability Act, plaintiffs must serve one or more medical expert reports on a defendant within 120 days of that defendant filing an answer in the lawsuit. These reports must go into painstaking detail about the applicable standard of care, how it was breached, and how it caused harm.
While proving liability is important to any medical malpractice case, if damages evidence isn’t sufficiently developed the case will go nowhere.
In cases where the plaintiff has a permanent devastating injury, the largest element of damages will be future medical expenses. This is typically the case in obstetrical/labor and delivery/birth brain injury cases, hypoxic ischemic injuries, and stroke and other brain injury cases for patients of all ages. At a minimum, proving that future medical expenses will be likely necessary because of negligence requires the testimony of a qualified physician. Even better, I believe the best way to introduce this evidence is a life care plan.
A life care plan is a written report that, as the name suggests, details a patient’s future care needs. To be admissible, a qualified licensed physician must testify that the care and treatment detailed in the life care plan is likely to be necessary, and reasonable medical probability, because of the negligence alleged in the lawsuit.
Make no mistake, a life care plan requires a significant investment of time and money. To prepare a reliable life care plan, a life care planner will need to review all of the relevant medical records. A complex case where a life care plan is necessary will typically have medical records numbering thousands and thousands of pages, often from multiple hospitals, physicians, and other healthcare providers. These records need reviewed, digested, and summarized.
To the extent that a plaintiff has prior injuries, conditions, or comorbidities that are unrelated to the negligence at issue in the lawsuit, a life care planner must segregate out any future care that would have been needed for those conditions even in the absence of negligence.
Additionally, because the life care plan is designed to detail all care needed for the rest of the patient’s life, the life care planner must reach in opinion on the likely life expectancy of the plaintiff. In some cases, a treating physician may provide this opinion, in other cases the life care planner may come up with this estimation, and in still other cases life care planner will consult with other medical experts about this important issue.
Finally, when possible, most life care planners want to examine the patient for themselves. Historically, this was done by an in-person appointment, but with the development of COVID-19 concerns and regulations many life care plan assessments have been done through telemedicine appointments.
Once the elements of necessary care have been plugged into life care plan, there is additional tedious work to come up with the prices for each item or service. In some cases, this is less straightforward than one would expect.
For example, last year, we handled a case involving a pediatric patient who developed a permanent brain injury after a hospital pediatric intensive care unit team ignored signs of brain swelling. The patient’s physicians, and life care planner, expected her to live for decades, but requiring a ventilator for the rest of her life. The life care planner was surprised to find it difficult to locate any vendor who would sell ventilator equipment—it was only for rent.
Once the pricing is complete, the life care plan is handed off to an economic expert who calculates the present value of all of the care contemplated by the life care plan. This is the important number for the parties, judge, injury to consider.
If you’ve been seriously injured because of poor health care in Texas, it’s important to select an attorney with significant experience in all handling both liability and damages aspects of medical malpractice cases. A good place to start is a top-rated experienced Houston, Texas medical malpractice lawyer.
