PURSUING A MEDICAL MALPRACTICE SUIT IN TEXAS- AN INTRODUCTORY GUIDE
- November 24, 2014
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PURSUING A MEDICAL MALPRACTICE SUIT IN TEXAS- AN INTRODUCTORY GUIDE
Has a doctor ever misdiagnosed your condition, or even failed to diagnose it at all? Have you ever been given the wrong prescription for an illness and experienced negative side effects as a result? Has a health professional ever delayed or failed to treat your condition? If so, you may have a medical malpractice claim.
In the State of Texas, if a health care provider, professional, physician, or entity causes harm to a patient during treatment, medical malpractice may have occurred. Before the specific harm can be considered the basis for a medical malpractice claim, the court must find that the harm was indeed caused as a result of a negligent act by the health care provider, physician, hospital, outpatient surgery center, doctor or other health care professional.
WHEN HAS MEDICAL NEGLIGENCE OCCURRED?
A doctor or any other health care provider owes a duty of care to a patient, and if that duty is breached or violated by the doctor or other health care provider and that breach causes injuries or damages, medical negligence may have occurred. When the treatment offered or not provided by a doctor or other health care provider deviates from the acceptable standard of care in the medical industry at the time of the treatment or lack thereof, patient injury or death can occur.
MEDICAL NEGLIGENCE IS MORE COMMON THAN YOU THINK
According to the National Practitioner Data Bank, between 15,000 and 19,000 medical malpractice lawsuits are filed every year. That tells us that an all too common problem currently exists in the healthcare industry. The Centers for Disease Control reported that at least 75,000 people die annually from infections alone, which is just one result of negligent harm. Finally, according to a 2013 survey in the Journal of Patient Safety, an estimated 400,000 unnecessary deaths occur in hospitals on an annual basis.
ARE YOU A VICTIM OF MEDICAL MALPRACTICE?
Optimal health is a necessity to live, work, and raise a family, and if you have experienced harm at the hands of a health care provider, physician, hospital, or other health care professional, you have a right to have your medical malpractice claim aggressively represented by a qualified attorney. The first step to take is to examine the specific facts of your situation to determine whether or not you may have a viable medical malpractice claim in the State of Texas.
The following five elements must be established prior to moving forward in any medical malpractice litigation:
1. The defendant is a physician or health-care provider.
2. The plaintiff’s cause of action is a health-care liability claim.
3. The defendant owed the plaintiff a duty of care.
4. The defendant breached its duty—that is, the defendant did not meet or deviated from the accepted standard of care at the time the treatment was or was not given.
5. The defendant’s deviation from the accepted standard of care proximately caused the plaintiff’s injury or damages. Damages are losses, often emotional or pecuniary losses suffered by the plaintiff, and include past and future medical expenses, lost wages, disfigurement, physical impairment, and mental anguish.
Under the Texas Medical Liability Act (TMLA for short) codified in § 74 of the Texas Civil Practice and Remedies Code, a health-care liability claim is “a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant.”
A health care provider, under the TMLA, “means any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including:
i.A registered nurse;
vii.A health care institution (hospital, hospital system, an assisted living facility, hospice, ambulatory surgery center (outpatient surgery center)); or
viii.A health care collaborative;
ix.An officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician; and
x.An employee, independent contractor, or agent of a health care provider or physician acting in the course and scope of employment or contractual relationship.”
UNDER TEXAS LAW, WHAT MONETARY DAMAGES ARE AVAILABLE TO YOU?
If your medical malpractice suit is successful, under Texas law, you are entitled to economic, non-economic, and potentially punitive damages. Economic damages reimburse the plaintiff for any lost wages due to missed work, and medical bills not covered by insurance. Non-economic damages can be granted to the plaintiff for any pain and suffering he or she experienced as a result of the medical negligence. In cases where it can be proven that the doctor or other health care professional acted maliciously while administering care to the plaintiff, punitive damages may be available.
In the State of Texas, a $250,000.00 cap is placed on non-economic damages stemming from negligent care from a physician,doctor or other health care provider. In addition, there is a $250,000.00 non-economic damages cap placed on each hospital and health care institution. When wrongful death or survivorship claims are involved in medical malpractice litigation, the limit for all damages, including punitive damages, is $500,000 for each claimant. This $500,000 cap however is increased or decreased by the sum equal to the amount of the $500,000 multiplied by the percentage increase or decrease in the consumer price index as of August 29, 1977. Economic damages however, do not apply to the cap.
STATUTE OF LIMITATIONS FOR MEDICAL MALPRACTICE SUITS IN TEXAS
Statute of limitations exist to put a time limit on how long the plaintiff actually has to file a medical malpractice suit. In Texas, an injured plaintiff must file suit within two years after the malpractice occurs. However, per TMLA § 74.051, service of written notice(s) of a health care liability claim(s) to each physician or health care provider against whom the claim is made, tolls the statute of limitations for 75 days. Service of written notice(s) of a health care liability claim(s) is required in every medical malpractice lawsuit and must occur 60 days before filing the lawsuit in any Texas court.
YOUR MEDICAL MALPRACTICE CLAIM IS IMPORTANT
Medical malpractice is a complex and difficult area of law. The law places strict procedural requirements, along with case law requirements and interpretations, which govern medical malpractice lawsuits. Moreover, the practice of medicine and medical conditions, injuries, and damages is complex in and of itself. If you or a family member feel strongly that you have a viable medical malpractice claim, you need an attorney with superior knowledge and experience in the medical malpractice litigation field. If you feel that you or a family member may have been the victim of medical malpractice, we invite you to contact The Hagood Law Firm for a free consultation. The Hagood Law Firm is here to serve you. We take on the most powerful defendants and we aggressively and effectively fight for you and your loved ones. Your expectations should be to have the best representation and that is what we vow to deliver. Here at The Hagood Law Firm, we have the knowledge and experience you need, and we are committed to providing quality representation. Please contact our office today for assistance with your medical malpractice claim: 214-706-0835 or via email at [email protected]