Why it is hard to hire a good medical malpractice attorney in Texas

 

When hiring a Texas medical malpractice lawyer, look for someone with experience in tackling tort reform laws

 
July 31, 2017

As a Texas medical malpractice lawyer, a day rarely goes by when I do not have to tell a potential client that his or her case is simply not viable under the Texas tort reform laws. These people who have suffered real injuries as a result of medical mistakes are disappointed, and sometimes a bit shocked or angry, when they realize how Texas law does not protect them.

How Texas medical malpractice law works

Hospitals, doctors, and other health care providers have special protections under the law that no one else receives.

Think about this example. Someone crashes into your car, totals it, and injures you and your family member. If the other driver or insurance company will not pay, then you have the right to take them to court immediately. The damages that you can claim in court might include replacement of your car, lost wages, medical expenses, pain and suffering, mental anguish. There is no limit to the damages that a jury or judge could award, so long as it is related to evidence.

On the other hand, consider a situation where a doctor or hospital commits malpractice, makes a mistake, or in some way botches your health care, leaving you with medical bills and lifelong disabilities. If the doctor or hospital does not step up to make things right financially, can you file suit immediately?

Well, you could, but you would be walking into a virtual minefield created by Texas law to make medical malpractice lawsuits difficult and expensive to pursue. And even those lawsuits that are filed are subject to caps for certain types of damages that are available and unlimited for other types of claims, like car wrecks, for instance.

The special legal protections for health care providers are found in Texas Civil Practice & Remedies Code Chapter 74. Here are the key points:

Notice of Claim Letter

Plaintiffs planning on filing a medical malpractice suit must give each person (doctor, nurse, pharmacist, etc.) and hospital that they intend to sue a 60-days written notice of claim before filing the lawsuit in court.

Medical Records Authorization

The written notice of claim must be accompanied by a specific release of information form that allows the potential defendants to obtain copies of the patient’s medical records. The format and contents of the release of information form are defined by the Texas tort reform law, and include listing the name and address of every doctor and health care provider that the patient saw for any reason over the past five years, as well as a list of all health care providers seen as a result of the alleges medical negligence.

If the plaintiff accidentally leaves off any health care provider from the authorization list, a court may, in some situations, dismiss the lawsuit altogether.

An Early Expert Report

As in any lawsuit, after citation is served, a medical malpractice defendant doctor, hospital, or health care provider must file a pleading called an answer. In medical malpractice lawsuits, though, a 120-day clock starts ticking as soon as each health care provider files an answer.

By that deadline, the plaintiff (patient or family) must serve each defendant with an expert report that describes the standard of care, how it was violated, and how it caused injury and damages, as well as a copy of the expert’s curriculum vitae or resume.

Sometimes you will need more than one expert. At least one of the experts must be a medical doctor, licensed to practice in any state, in a field of specialization relevant to the case.

It does not matter how obvious and common sense the medical negligence is. The law requires medical malpractice plaintiffs to serve an expert witness report, and curriculum vitae, within 120 days of each defendant filing an answer in court.

If the plaintiff misses the deadline for any reason, the defendants can file a motion for the court to dismiss the case and ask for attorney’s fees. Under this medical malpractice law, which is entirely unique to tort law, the court is required to, quite literally, add insult to injury.

Limitation on Evidence

Despite these requirements and deadlines, there is a stay on discovery until a compliant expert report is timely produced. This means that, unlike every other type of lawsuit, the plaintiffs cannot take depositions or obtain key documentary evidence through the written discovery process (with the exception of getting copies of the medical billing records) until the written expert report is served.

This process puts the cart before the horse. Medical malpractice plaintiffs have to comply with an aggressive expert report deadline before they have the legal tools that are available in all other types of lawsuits to acquire evidence.

Ban on Investigation Documents

Speaking of evidence, any investigations or discussions by a hospital or peer review committee about the patient, medical negligence, or anything else are privileged. Even if the hospital investigated the matter, found that they were at fault, and wrote a report, you can never see it.

No Hospital Liability for Doctors

Under the Texas Corporate Practice of Medicine Doctrine, hospitals cannot employ doctors. Many people are surprised by this, considering the billboards and advertisements that you see all over Houston, like blossoming wildflowers, highlighting the doctors that work at different hospital systems.

Advertising is one thing, but the law is another. In a medical malpractice suit, a hospital cannot be held responsible for a doctor’s negligence or mistakes.

Malicious Credentialing

While Texas hospitals do not actually hire doctors, they do go through a process to credential them onto the medical staff. Credentialing is largely like a hiring process, involving receiving an application from the doctor, checking his or her education, training, licensure, and recommendations, and even querying the National Practitioner Databank about prior reports of medical negligence.

In other types of cases, you can sue for the torts of negligent hiring or retention. In health care liability cases, many states recognize a tort called negligent credentialing, which is very similar to negligent hiring or retention. Texas law allowed this cause of action, until the Texas Supreme Court stepped in and closed the door in St. Luke’s Episcopal Hospital v. Agbor, 952 S.W.2d 504 (Tex. 1997).

The tort of negligent credentialing no longer exists under Texas law. Theoretically, a plaintiff could pursue a malicious credentialing claim, but I cannot imagine any situation where the burden of proof could be met. After all, the standard of malice require a showing of actual subjective knowledge by the hospital that a doctor was incompetent and dangerous, for example, and then an objective disregard for that information and the danger it posed to patients.

Of course, the only source for that information would be in the records of the hospital credentialing committee records. As already discussed, those records are privileged and would never be discoverable.

More About Experts

In most cases, plaintiffs will have to hire multiple experts to prove their case, in order to meet rigid court-created legal standards. These experts typically charge hefty fees of many hundred dollars per hour.

In addition, medical malpractice plaintiffs typically have to hire out-of-town, and often out-of-state, medical experts, because few doctors are willing to testify against other doctors in their city or state. This further increases the cost of litigation, in the form of travel costs, as well as having to pay experts for the time that they are traveling to appear in court.

Damages Caps

Generally speaking, there are two types of damages that can be recovered in court for medical malpractice: economic and noneconomic damages.

Economic damages include things that are easy to put a dollar sign to—things like past and future lost wages, past medical expenses that were actually paid or are still legally owed, and future medical expenses. These damages are not capped.

Noneconomic damages include things that are not as easy to put a dollar sign to—things like pain and suffering, mental anguish, disfigurement, and physical impairment. These damages are capped at $250,000 for all physicians. In other words, if you sue one doctor or 10 doctors, the total amount available for noneconomic damages under the cap is $250,000. When it comes to hospitals, the total cap is $250,000 per hospital, up to a maximum of $500,000. To be clear, if you sue one hospital, the total available for noneconomic damages under the cap is $250,000, but if you sue two or more hospitals, then the total available is $500,000.

I frequently hear from my clients that they find it next to impossible to find a skilled nursing facility to care for their loved ones. Based on my experience, damages caps explain why elderly and unemployed patients quite often receive such poor health care in Texas. Realizing that a nursing home’s worst day in court for these types of patients is typically $250,000, do you think they may make a financial calculation that it is cheaper to defend an occasional medical malpractice suit, rather than making the investment in hiring the additional staff necessary to provide quality care?

Insurance

As a result of the unique, extreme protections that Texas law gives to health care providers, many hospitals have allowed doctors to practice on their medical staffs with very little medical malpractice insurance.

As an experienced Texas medical malpractice attorney, I have represented plaintiffs in lawsuits against doctors, surgeons, orthopedic surgeons, and neurosurgeons in Houston and Dallas, where they only had $200,000 in medical malpractice coverage.

Many physicians have protected most of their cash assets in retirement accounts and by investing homestead property that cannot be seized to satisfy a judgment. In many situations, collecting a judgment in excess of the insurance coverage is not reasonable doable or even possible.

Imagine a young man who was rendered quadriplegic by a neurosurgeon’s negligence learning that the neurosurgeon only had $200,000 of medical malpractice insurance coverage. I have handled such a case, and that is exactly the type of system that Texas law allows and even promotes.

Lack of Rational Basis

I remember the very public debate over the legislation, when pro-tort reform and physician lobbyists claimed that medical malpractice lawsuits were to blame for the high costs of health care. Specifically, they claimed that doctors were forced to practice costly “defensive medicine,” which is ordering tests that are medically unnecessary in order to protect themselves from medical negligence lawsuits.

A study in the Journal of Patient Safety debunked that myth.

Starting with the premise that states, like Texas, with strong tort reform laws should have decreased Medicare and medical utilization costs after tort reform went in place. The results proved the opposite. In Texas, there has been a progressive trend of increasing Medicare and medical expenditures after tort reform became law in 2003.

As a Houston medical malpractice lawyer, this does not surprise me. Hospitals and doctors throughout Texas have very limited accountability for the health care that they provide. In many situations, they have no accountability whatsoever because many cases are too expensive to develop and prosecute, considering the cost of experts and caps on noneconomic damages.

We are here to help

I wrote an article for lawyers a few years ago, which was published in The Houston Lawyer, that I called “Mapping the Medical Malpractice Minefield.” My point there was that lawyers should be careful to educate themselves if they want to file a medical malpractice case.

The same is true for people looking to hire a lawyer. I recommend that you do some research before selecting a lawyer to handle your medical malpractice case. You need someone to advocate for you who can navigate the medical malpractice legal minefield in Texas.

At Painter Law Firm, in Houston, Texas, we focus on medical negligence cases. Call us at 281-580-8800 for a free consultation about your potential case.

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Robert Painter is an attorney at Painter Law Firm PLLC, in Houston, Texas, where he represents patients and families in medical malpractice and wrongful death lawsuits. He is a frequent writer on medical and legal topics, currently serves on the editorial board of the Texas Bar Journal, and is a past editor-in-chief of The Houston Lawyer magazine. Attorney Robert Painter began his graduate academic career in medical school, before deciding to become a health lawyer. He then gained valuable experience in the U.S. Army as an officer and hospital administrator, as he repaid his active duty service obligation for his full scholarship to medical school.

Robert Painter

Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.

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