From the Law Offices of Robert Rodriguez
Can I sue my doctor? Can I sue the hospital?
I get these questions all the time, but the answers are not always simple. Suing healthcare providers, a practice commonly referred to as medical malpractice, is governed by Chapter 74 of the Texas Civil Practice and Remedies Code. It creates a very specialized field with its own rules of evidence and procedure. For you, the non-lawyer, learning a little bit of what is involved in suing healthcare providers in Texas will help you determine whether you might have a case worth discussing with an attorney.
In this article you will learn:
- The history of how medical malpractice came to be what it is today,
- How the law caps the amount of money a jury can award,
- The caps placed on cases involving state hospitals and state staff,
- Why medical malpractice cases are the most expensive cases to bring,
- What constitutes medical malpractice and
- Reasons your case may be turned down
The history of today’s medical malpractice laws and procedures in Texas:
The medical malpractice laws that we deal with today sprang from the big tort reform movement of 2003. The resulting new laws were so drastic they required voters to approve an amendment to the Texas Constitution. Why was a constitutional amendment necessary? Because the new law took away our right to a jury trial (guaranteed by the constitution) on the issue of damages – that is, how much money a jury can award. As a result, after 2003, it became much harder and much more costly to sue a healthcare provider in Texas.
Caps: legal limits on how much money a jury can give you:
The biggest change in the law was the placing of caps on non-economic damages. These are damages that you cannot put a price tag on, such as pain, suffering, disfigurement, and mental anguish. Under Texas law, a claimant cannot be awarded more than $250,000.00 in non-economic damages against a healthcare provider, regardless of how many healthcare providers share in the liability. That is to say, even if a jury finds three different doctors liable for your injury, you are capped at $250,000.00 as the total amount you can receive for non-economic damages. As to hospitals and other healthcare institutions, non-economic damages are capped at $250,000.00 per hospital up to a total of $500,000.00 if more than one institution is found liable. Remember, we are talking about non-economic damages here. As to medical expenses, medical equipment, lost wages, prescriptions, special care-givers, and anything else that you can put a price tag on, there are no caps on the amount a jury can award.
Caps on recoveries against state hospitals and providers:
The situation is much worse if you have been the victim of a medical malpractice that occurred in a state hospital or was caused by a state-employed healthcare provider. Here, the rules under the Texas Tort Claims Act apply, and they not only cap the amount a jury can award you but also prevents you from even suing in some cases. The Act says that you cannot bring suit against a state hospital or state healthcare provider unless you can show your injury was caused by “the condition, use, or misuse of tangible property”. Something like a missed diagnosis, for example, does not involve tangible property and therefore does not allow suit to be brought even if the missed diagnosis caused severe injury or death. More importantly, all of the damages – not just non-economic damages- are capped at $250,000.00. You read that correctly – even the most horrific medical mistakes resulting in severe injuries or death are capped at a total recovery of $250,000.00.
Why medical malpractice cases are expensive:
Before I can determine if you have a medical malpractice claim, I have to hire a doctor or nurse to review your medical records and determine whether the doctor or hospital departed from the accepted standards of care and whether such departure was the cause of your injury. Once it is determined that a suit is viable, I have to file an expert report not later than 120 days after the defendant’s answer is filed. These experts are medical professionals and are probably the most expensive experts to hire. Often times, I have to hire more than one doctor to testify in your case. This, coupled with many depositions that must be taken, makes medical malpractice cases by far the most expensive cases to bring.
What constitutes a medical malpractice?
The law defines medical malpractice as a departure from the accepted standards of care. This can include mistakes, such as giving the wrong medication, amputating the wrong limb, or leaving a foreign object in a patient’s body. It can mean failing to properly diagnose a condition or illness. It can also mean failing to order appropriate testing or appropriate treatment. It can also mean making a mistake in surgery that a careful surgeon would not have made. Finally, the attorney must show that this departure from the accepted standards of care was the cause of his client’s injury.
Reasons an attorney may turn down your case:
Sometimes I turn down a case because I don’t think I can prove the doctor’s action or inaction fell below the accepted standard of care. (It is important to emphasize here that it is not malpractice simply because a surgery or procedure wasn’t successful.) Sometimes I turn a case down because the statute of limitations (2 years) has passed. Sometimes I turn down a case because the doctor’s negligence did not cause any harm beyond causing the patient to go to another emergency room or another doctor for a proper diagnosis and proper treatment. But the biggest reason for turning down a case is because the case is too small to warrant the expenses that would be invested versus the amount of money a jury would be expected to return. In short, I only take such a case if the mistake caused severe, life-changing injuries or death.
Medical malpractice cases are uniquely expensive, time consuming, and hard-fought affairs that are hard to settle and often must be tried to a jury. This is true even though many times, the doctor’s mistake has caused severe injuries or death. If you or a loved one has been the victim of a medical mistake, please call me and I will be glad to provide you with a free consultation.