Texas passed medical malpractice reform laws in 2003 that have made it much more difficult for patients and victims of medical negligence to get a fair trial, to recover damages, to get justice for the harm caused to them, and even to find lawyers who can afford to take their cases. The reforms have reduced lawsuits and costs of malpractice insurance, but they have harmed patients.
If you have been harmed by medical negligence in the state, you need a skilled and highly experienced Texas medical malpractice lawyer. This expert is important in fighting for justice in the context of tough malpractice laws that favor medical professionals over patients.
Medical Malpractice Laws in Texas
Significant tort reform was enacted in Texas in 1977 and 2003, changing how and when medical malpractice suits can be filed by victims of medical negligence. The reforms and laws were designed to reduce the costs of malpractice insurance and healthcare, but they also have the effect of making it more difficult for victims to seek justice and to get access to a fair trial.
One of the changes made in 2003 was to institute a cap on non-economic damages. These are the damages that compensate patients for pain and suffering, disfigurement, loss of enjoyment in life, and other factors that can’t be priced. The cap is just $250,000 per individual defendant, $500,000 per institution, and $750,000 in total.
The statute of limitations in the state is set at two years from the time of the negligent incident. There may be exceptions, but no case can be filed more than 10 years from the time of the negligence. For minors, the limit was originally set at an individual’s 14th birthday, but that was found to be unconstitutional and that minors should have two years from their 18th birthday.
The 2003 reforms also included a law that requires plaintiffs to file an expert report within 120 days of filing a lawsuit. The report has to include the qualifications of the experts and information regarding the experts’ review of the evidence and their opinion that the case has merit and that there is evidence that the standard of care was breached by the defendant.
Controversy over Malpractice Laws
The reforms to malpractice laws put into place in 2003 have been questioned and criticized by advocates and Texas medical malpractice lawyers who fight on behalf of victimized patients. While the laws have reduced the costs of malpractice insurance in the state, they have also made it more difficult for patients to get justice, they say.
A big issue is that taking on a malpractice case for lawyers is costly and time-consuming, and with the damages cap set so low it is often not worth a firm’s efforts to take on many cases. This leaves victims, sometimes those with catastrophic injuries, with no one to advocate for them.
In a tragic example, a woman was left with both legs amputated after a hospital emergency room failed to determine that she had multiple clots in her IVC filter. The woman had gone to the ER with serious leg pain, and had a history of clots and the filter in place to catch them. A few days later she went to another hospital, where she was found to have a clotted filter and tissue death in her legs. They couldn’t be saved, and in her attempt to sue the ER for delayed diagnosis, she couldn’t find a lawyer who could afford to take her case.
In addition to the damages cap that made it impossible for the woman to find representation, the 2003 reforms included language that makes it especially difficult to find emergency rooms guilty of negligence. The burden of proof includes showing the staff acted with negligence that was “willful and wanton.” This language makes it nearly impossible to prove a case if it occurred in an ER, severely restricting the legal rights of victims such as the woman in this case.
Texas Medical Malpractice Cases
Not all lawsuits filed that charge medical negligence are successful for the plaintiffs, but Texas medical malpractice lawyers are dedicated to fighting for the best outcome for these victims. In an example of a success story, a lawyer won his client a jury verdict of a whopping $43 million, including $25 million in non-economic damages as well as a verdict of gross negligence, which is rare in medical malpractice cases.
The plaintiff sued East Texas Medical Center, and his doctor, and accused them of gross negligence and violating the hospital’s own bylaws. The hospital allowed the doctor to treat patients even though at the time the Texas Medical Board had him on probation. He should have been suspended. Instead, he misdiagnosed the plaintiff, which in turn delayed treatment for bile duct stones. He was left in a coma for a month and ended up suffering liver failure and undergoing a liver transplant.
In another, more recent case that is still ongoing, a man’s malpractice legal team was successful in appealing his previously dismissed case. The plaintiff in this case went to Elite Care Emergency Center with abdominal and groin pain. The doctor who examined him misdiagnosed him with a hernia. When the man returned the doctor dismissed his complaints of ongoing pain and told him to go to a hospital. He did, where the doctors found he was suffering from testicular torsion. By then it was too late to save the testicle and it had to be removed.
The man sued, and included expert testimony that determined he would not have had to lose his testicle if the original doctor had provided him with an adequate standard of care and examined him more fully. The defendants argued to have the case dismissed, but the plaintiff’s lawyers won an appeal and the case to get him justice is back on.
Finding and Working with a Texas Medical Malpractice Lawyer
Fighting a case of negligence against a doctor, a hospital, and their insurance lawyers can be extremely difficult. Laws tend to favor the defendants and Texas is no exception. Victims of negligence need the best Texas medical malpractice lawyers on their side to fight for justice and to recover damages. If you find yourself in this position, start your search quickly so as not to miss the statute of limitations.
The state bar association can help you find a good lawyer who specializes in malpractice cases. This is important because being successful in these cases requires very specialized knowledge and experience. Don’t settle for a lawyer who practices general law, and make sure you select someone you feel comfortable working with and who has a good track record in positive outcomes for clients.
When you do find the lawyer to take your case, provide him or her with all the information that will be needed to prove negligence and make your case in a settlement or a trial. Being open, even if it is hard to do, is important. When you work well with a great malpractice lawyer, you can expect to have the best possible chance of a win in court.