When evaluating a potential medical malpractice claim, there’s more to consider legally than the fact that a hospital, doctor, or nurse made a mistake.
Medical malpractice is a type of negligence. Any negligence claim requires the plaintiff to prove four things: (1) existence of a duty; (2) breach of a duty; (3) proximate cause; and (4) harm.
In the context of health care, the existence of duty is pretty much a given. When physicians and nurses are involved in a patient’s care, then they owe a duty to follow the standard of care when treating the patient. The standard of care is what a reasonably prudent doctor or nurse would do under the same or similar circumstances.
An example of a standard of care is for emergency room doctors and neurologists to recognize the signs and symptoms of ischemic stroke and, when indicated, to give the patient the clot-busting drug tPA.
Breach of a duty occurs when the health care provider doesn’t follow or meet the standard of care.
An example of breach of the standard of care—from a real case, by the way—took place when a neurologist downplayed a patient’s stroke symptoms and discharged her from the hospital without any treatment.
The next two elements of medical negligence cases, proximate causation and damages, are where things become more challenging. In fact, this is where we spend a lot of time thinking about a potential case during our initial conversations with a potential client and our preliminary investigation of a case.
Proximate cause requires proof of two things:
• The mistake, act, or omission was a cause-in-fact or substantial factor in causing harm
• The harm was foreseeable
Let’s go back to my example about the stroke patient. If the patient had stroke symptoms for six hours before going to the ER, then it wouldn’t be possible to prove that the physician mistake in diagnosis and discharge made a difference in the outcome. In other words, the tPA wouldn’t have likely made a difference, so there’s no proximate cause and, as a result, no case.
Damages refer to how a breach of the duty/standard of care—a medical mistake—caused harm. Damages can be temporary or permanent. Damages can be noneconomic (pain and suffering, mental anguish, physical impairment, etc.) or economic (past or future medical bills or loss of earning capacity). Noneconomic damages are capped by Texas law; economic damages aren’t.
It’s not enough that a health care provider made a mistake that violated the standard of care. The mistake must be a proximate cause of damages. The impact of tort reform laws in Texas means that the damages must be significant and compelling for the case to make economic sense to pursue.
Multiple times every week at Painter Law Firm, we visit with a potential client who explains that a physician, hospital, or nursing mistake “almost killed me.” We totally get it. There’s no doubt that when this happens, the patient and family are rattled and frightened, basically traumatized. And they’re certainly entitled to be.
The challenge for a medical malpractice case, though, is that proving negligence requires proving damages.
When deciding on whether there’s enough evidence for it to make money sense to proceed with a medical malpractice lawsuit, a near miss isn’t enough. If a patient could have almost died, but fortunately survived and returned to normal, then the damages are non-existent or limited.
There’s the same challenge when a patient is injured by medical malpractice, but the injuries aren’t severe or life-changing in nature. In my experience, it’s rare for cases of this nature to make sense to pursue from an economic perspective because it’s unlikely that a Texas jury would award sufficient money damages to offset the significant expenses of litigation. Sadly, this is one of the unjust results of the current tort reform climate.
If you’ve been seriously injured because of poor health care, then contact a top-rated experienced Houston, Texas medical malpractice lawyer for professional advice about your potential case.
