Texas Medical Malpractice Law


What is Medical Malpractice

Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.

A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.

Medical Negligence

Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,

  • Failure to diagnose a medical condition or disease,

  • Misdiagnosis of a medical condition or disease,

  • Failure to provide medically appropriate treatment,

  • An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;

  • Mistakes in the prescription or dosing of medication.

For injuries that occur in emergency rooms, in order to succeed in a medical malpractice action Texas requires that a patient alleging injury prove that the doctor acted with willful and wanton negligence, rather than simple negligence. That standard, which amounts to a standard of gross negligence or conscious indifference, is extremely difficult for an injured patient to prove.

Informed Consent

Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.

Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.

Damages in Texas Malpractice Cases

Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.

Damages Caps

Texas limits damages awards of non-economic (pain and suffering) damages in medical malpractice caases to $250,000 per physician or provider. In a case with multiple defendants, non-economic damages are capped at $250,000 against all defendants and $250,000 against one hospital or $500,000 against two or more hospitals, for a potential total of $750,000, but that exception rarely applies. The cap applies no matter how severe the claimaint's injuries.

In wrongful death actions based upon medical malpractice, the total amount recoverable per claimant is capped at $500,000, including economic damages. This amount is adjusted annually for inflation.

Joint and Several Liability

When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Texas follows a modified rule of joint and several liability, pursuant to which each defendant is proportionately liable for damages consistent with the percentage of liability attributed to that defendant, unless the responsibility attributed to the defendant for the cause of action is greater than fifty percent.

The Collateral Source Rule

Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Texas has abolished the collateral source rule, and permits evidence of the amount paid to be submitted to the jury for purposes of determining the reasonable value of medical services.

The Statute of Limitations for Medical Malpractice in Texas

The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Texas, the statute of limitations is two years from the date of the act or omission underlying the malpractice claim, or from the date the medical or health care treatment underlying the claim is completed. It may be possible to toll the statute of limitations based upon deliberate concealment of the cause of action by the health care provider. No malpractice claim may be commenced more than ten years after the act or omission underlying the claim. Minors under the age of twelve may file a cause of action for malpractice until their fourteenth birthday.

Additional Rules for Texas Malpractice Cases

Additional rules affecting malpractice litigation in the State of Texas include:

Emergency Medical Care

When a patient receives emergency medical care following the sudden onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably be expected to result in placing the patient's health in serious jeopardy, in order to prevail in a malpractice action against a health care provider arising from that care, the claimant shows by a preponderance of the evidence that the physician or health care provider, with wilful and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances.

Alternative Dispute Resolution

In Texas, before a health care provider may request that a patient arbitrate a health care liability claim, the patient must execute a written agreement that includes a statutory warning to the patient of the rights the patient surrenders by executing the agreement, and the agreement must also be signed by an attorney of the patient's choosing.

Expert Report

An expert report is a document created by a qualified medical expert, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. In a medical malpractice case in Texas, not later than the 120th day after a defendant files an answer to the plaintiff's action, the plaintiff must serve upon that defendant an expert report. The expert report must provide a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the defendant physician or health care provider failed to meet the applicable standards, and the causal relationship between that failure and the injury, harm, or damages claimed by the plaintiff. As necessary to support the claim the plaintiff may submit reports from more than one expert. The parties may agree in writing to extend the time for filing the report. Upon receipt of the report, each defendant physician or health care provider whose conduct is implicated by the report must file and serve any objection to the sufficiency of the report not later than the 21st day afther the report is served or the 21st day after the defendant's answer is filed. If a defendant does not file a timly objection, all objections to the report by that defendant are deemed waived. Failure by the plaintiff to file a timely expert report may result in financial sanctions and the dismissal of the action.

Medical Expert Witness Restrictions

In order to qualify to testify as an expert witness in a Texas medical malpractice case, a proposed expert must have been practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant is an individual, at the time the testimony is given or at the time the malpractice claim arose. Practice may include teaching residents or students at an accredited school of medicine or osteopathy, or serving as a consulting physician to other services who provide direct patient care. For a malpractice case against a physician, the proposed expert must also be a physician. For a malpractice claim against a dentist, the proposed expert must be a dentist or physician. For a malpractice case against a podiatrist, the proposed expert must be a podiatrist or physician.

The proposed expert must also have knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim, and be qualified on the basis of training or experience to provide an expert opinon regarding the accepted standards of care. In determining whether a proposed expert is qualified to testify, the trial court must consider the expert's licenses or certifications from a state or national certifying agency, the expert's training and experience relevant to the claim, and whether the expert was actively practicing health care in practice areas relevant to the claim.

These restrictions do not apply to expert testimony provided by defendants, or to the employees of defendants.

Apology Law

An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Texas has an apology law that extends to all personal injury actions, including medical malpractice litigation, pursuant to which a statement that expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of an individual involved in an accident is not admissible into evidence. However, notwithstanding that rule, any communication that also includes a statement concerning negligence or culpable conduct relating to an accident or event is admissible to prove the liability of the person communicating the statement or gesture.

Why Consult a Medical Malpractice Lawyer

If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.

Copyright © 2016 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Jun 30, 2016.