I recently met with a married couple, whom I represent in a medical malpractice case, to prepare them for their depositions.
The husband had a catastrophic brain injury as a result of being repeatedly misdiagnosed and discharged from a Humble, Texas area hospital. He eventually made it to a Texas Medical Center hospital, where he was properly treated. While they were at the Medical Center, his wife told me, several lawyers lined up in the hospital to try and convince the family to hire them for a potential lawsuit.
I was surprised to hear this, considering that it is illegal and unethical for Texas lawyers to solicit clients. It is called barratry. I also thought about how it was fortunate, for my clients’ case, that they did not hire one of those attorneys who lacked experience in handling complex medical malpractice cases.
As a Houston, Texas attorney who has devoted his career to handling medical malpractice cases, I understand how this is a complex area of the law. It is so technically demanding, in fact, that I wrote an article for The Houston Lawyer magazine about how to navigate the minefield of Texas medical malpractice law.
I believe that lawyers who are inexperienced in handling medical negligence cases have a higher risk of running afoul of unique legal requirements that can end up getting their clients’ cases dismissed.
By the way, there are other areas of law that are unique and challenging for attorneys who do not regularly handle such cases. For example, when prospective clients call Painter Law Firm about divorce, child custody, criminal, bankruptcy, and immigration matters, we refer them to lawyers who devote their practice to these specialized areas.
Unique hurdles in Texas medical malpractice cases
As you probably already guessed, I recommend that patients and family members who have a potential negligence or wrongful death case involving healthcare hire a lawyer with extensive experience in handling medical malpractice cases. Attorneys who devote their practice to healthcare cases are familiar with unique hurdles that Texas law imposes on medical malpractice matters and how to navigate around them.
Unlike virtually every other negligence case in Texas, medical malpractice cases require a pre-suit notice letter. Texas Civil Practice & Remedies Code Section 74.051 specifies that a written notice of claim letter must be sent to all physicians or healthcare providers by certified mail, return receipt requested at least 60 days before filing suit. The law further requires a signed statutory authorization form for release of protected health information, which must contain a detailed listing of all healthcare providers seen by the patient during a five-year period prior to the alleged negligence, as well as all providers who treated the patient as a result of the alleged negligence.
A proper notice letter and authorization will toll, or extend, the statute of limitations by 75 days. In most cases involving adults, the statute of limitations is two years, and at first glance an additional 75 days seems generous. However, recent amendments to the statute and appellate court opinions interpreting the notice and authorization requirements make it clear to experienced medical malpractice lawyers that attempting to use the additional 75-days is ill-advised. Defense lawyers regularly file challenges to the adequacy of a signed statutory authorization form that omits even minor healthcare providers. Many courts have granted those challenges, meaning that a medical malpractice plaintiff’s case is quickly dismissed, leaving the patient with no remedy in court.
After a plaintiff timely files a medical malpractice lawsuit and the defendants file their answer, Texas Civil Practice & Remedies Code Section 74.351 imposes another requirement unique to healthcare liability claims. Within 120 days after each defendant files an original answer in a medical malpractice lawsuit, a plaintiff must serve one or more expert reports, with an accompanying curriculum vitae (resume), which state, in agonizing detail, the applicable standards of care, how the defendant violated the standards of care, and how such substandard care proximately caused injury or harm to the plaintiff. Typically, these expert reports are written by physicians, nurses, or other healthcare providers. Any opinions concerning causation must be given by physicians.
The expert report deadline is unforgiving. When plaintiffs and their lawyers fail to serve an expert report within the 120-day deadline, the defendant can immediately file a motion to dismiss. Additionally, if defendant doctors or hospitals believe that there is any argument that the expert reports do not meet the complex, demanding standards of Texas law, then they can file a motion challenging the adequacy of the expert report. If the court rules that no expert report was timely served, or that a report is an adequate in some way (after a 30-day extension to fix any defects), then the law requires the court to dismiss the case and requires the plaintiff to pay the defendants’ attorney’s fees and costs of court.
In the ultimate example of adding insult to injury, imagine being injured as a result of medical malpractice and then being forced to pay the healthcare providers’ attorney’s fees because you hired a lawyer who does not understand medical malpractice cases.
We are here to help
When doctors or hospitals are sued, they hire competent attorneys who understand Texas medical malpractice law. Patients and family members considering a negligence or wrongful death case arising from medical malpractice should do the same.
The attorneys at Painter Law Firm, in Houston, Texas, are available to you for a free consultation about your potential medical malpractice case. Our telephone number is 281-580-8800.
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Robert Painter is an attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical malpractice and wrongful death lawsuits against hospitals, doctors, surgeons, anesthesiologists, pharmacists, and other healthcare providers. In 2017, H Texas magazine named him as one of Houston’s top lawyers.
