From start to finish, medical malpractice defendants frequently mobilize a whole team of legal goalies to try and block the efforts of patients seriously injured by their negligence from getting a just recovery.
On the front end, defendants take advantage of the draconian Texas system that requires plaintiffs to produce expert reports within 120 days of the defendant filing an answer in a medical malpractice lawsuit. Texas law allows health care provider defendants to file frivolous objections to these expert reports and delay progress in the case for months on end, all with impunity.
When an experienced Texas medical malpractice attorney is representing the plaintiff, these early efforts almost always fail and amount to nothing more than a waste of time. Defendants and their lawyers and insurance companies don’t give up there, though.
Even after a plaintiff takes a medical negligence case to trial and obtains a jury verdict, it’s virtually certain that the defendants will attempt to have it overturned on appeal. That’s exactly what happened when a Harris County jury ruled against Victor Kareh, M.D., a neurosurgeon who saw a patient at North Cypress Medical Center.
Before Dr. Kareh got involved in the patient’s care, a different physician had concluded that the patient had compensated obstructive hydrocephalus because of aqueductal stenosis and needed a shunt inserted the next day.
According to the plaintiffs in this wrongful death and medical malpractice case, Dr. Kareh didn’t even bother reviewing the patient’s medical history, including findings and recommendations from other physicians, before deciding on a flawed treatment course. Dr. Kareh didn’t insert a shunt and, as a result, the plaintiffs alleged, their loved one died from a brain injury, leaving behind a wife and young children.
The jury agreed with the plaintiffs and awarded millions of dollars to compensate them for their deceased husband and father’s income that would’ve supported their family, as well as their mental anguish and loss of companionship and society. After applying the Texas wrongful death damages, the court entered a judgment totaling $1.9 million.
Dr. Kareh appeal the judgment to Houston’s First Court of Appeals, which reversed the trial court, finding that the plaintiffs, through their medical experts, didn’t produce legally sufficient evidence to support the jury’s verdict that Dr. Kareh’s negligence proximately caused the patient’s death.
This is a favorite area for defendants to challenge. They frequently argue that anything else, including the kitchen sink, probably caused the patient’s injury instead of any mistake that they made.
What’s proximate cause?
In any medical malpractice case, a plaintiff has the burden to prove negligence. Negligence requires that a defendant owed a duty to the plaintiff (such as a physician-patient relationship), the defendant breached that duty (made a medical mistake), and the breach proximately caused injury or harm to the patient.
Proximate causation itself has two components. One component, cause-in-fact, means that the breach was a substantial factor in causing the injury and the injury wouldn’t have occurred without it. The second component is foreseeability, which means that the defendant should have reasonably known that the medical mistake could cause injury to the patient.
Texas Supreme Court decision
In an opinion released on January 25, 2019, the Texas Supreme Court rejected and called out the error of the First Court of Appeals opinion, finding that the plaintiffs’ neurosurgery expert’s opinion was not conclusory and that the jury could have reasonably found it more persuasive than the other evidence.
The take-home message from the opinion is that medical plaintiffs don't have to prove that a negligent act was an "immediate cause" of injury, but rather only must show it was a "substantial factor" in causing the injury and that without it the injury wouldn't have occurred. That's a big difference and will be helpful to injured patients.
Procedurally, the Supreme Court remanded the case back to the First Court of Appeals to reconsider, in light of the Supreme Court’s opinion, whether the plaintiffs submitted legally and factually sufficient testimony to support the jury verdict. Under these circumstances, I predict that the rebuked First Court of Appeals will find in favor of the plaintiff this go-round.
We are here to help
If you or a loved one has been seriously injured by hospital or physician care, then the experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, are here to help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.
All consultations are free and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Bryan/College Station, and Waco.
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Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2018, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.
