An experienced medical malpractice lawyer can protect you from the traps of Texas law
Texas law imposes unique requirements on medical malpractice plaintiffs, which are unfamiliar to many generalist attorneys
Texas law presents unique challenges to medical malpractice plaintiffs. Before hiring someone to represent you in a medical malpractice lawsuit, I recommend quizzing the attorneys who you are considering on their experience in this complex area of law.
In the political climate of the past 10-15 years, Texas intermediate appellate court and Supreme Court opinions have tilted overwhelmingly in favor of defendant hospitals and doctors.
From my experience in staying current on appellate opinions, it seems to me that the Supreme Court and other appellate courts occasionally enter opinions for plaintiffs when healthcare providers and their lawyers are appealing way too many cases on meritless points.
Defendants’ baseless challenges to expert reports
For example, in the early years after the 2003 tort reform legislation became law in Texas, virtually every medical malpractice defendant challenged the adequacy of plaintiffs’ expert reports.
Texas Civil Practice & Remedies Code Section 74.351 creates a unique procedural hurdle for medical malpractice plaintiffs.
Under the current version of the statute, within 120 days of a defendant filing an answer in a medical negligence lawsuit, the plaintiff must serve the defendant with a written report from a medical expert, along with the expert’s resume. The expert report must separately define and discuss the standard of care, how each healthcare provider missed the mark, and how such substandard care proximately caused harm to the patient.
In those early years after the current round of tort reform, many defense lawyers filed boilerplate objections that were virtually identical from case to case. On one particularly absurd occasion, I remember a Houston defense lawyer objecting to the adequacy of my client’s medical expert report. Her client’s objection ended with a paragraph objecting to any future expert report because it, too, would be defective. This type of frivolous defense tactics runs up the costs of litigation, but tort reform advocates never talk about it.
On the other hand, even the Texas Supreme Court apparently eventually got tired of spending time on so many frivolous objections and appeals. The court handed down a decision requiring that trial courts should consider basically any expert report served by the plaintiff to be a good-faith effort to comply with the statute. In the event that a trial court found that an expert report was deficient under the statute, the Supreme Court instructed judges to give plaintiffs a 30-day extension to cure any defects.
As soon as the court made this decision that leveled the playing field, the defense bar’s baseless challenges to expert reports disappeared overnight.
The new battle: medical record authorizations
Undeterred after eventually losing the expert report battle, hospitals, doctors, and their lawyers moved on to a new target.
Texas Civil Practice & Remedies Code Section 74.051 requires medical malpractice plaintiffs to provide a notice of health care liability claim to all potential defendants, at least 60 days before filing a lawsuit, along with a very specific medical records authorization.
The statute requires the authorization to include a list of the patient’s current providers, as well as any provider that the patient saw in the five years prior to the healthcare at issue.
When a medical malpractice plaintiff serves a proper notice of health care liability claim, accompanied by a compliant statutory medical records authorization, it tolls the statute of limitations for 75 days.
This is where the law trips up inexperienced lawyers, to the peril of their clients. It is also an example of the wisdom in hiring an experienced Texas medical malpractice lawyers.
The standard statute of limitations in Texas for negligence claims, including medical malpractice, is two years. Thus, a proper 60-day notice of claim letter and a compliant statutory medical records authorization can add 75 days to the statute of limitations, making it two years and 75 days.
At the time the law was passed, legislators argued that this would give potential defendants the opportunity to obtain a plaintiff’s medical records in advance of the suit, conduct an investigation, and potentially settle the claim pre-suit. In reality, this rarely happens. Instead, defendants often use the authorization to obtain prior medical records in an effort to find someone else to blame for their negligence.
In the past few years, defendant hospitals and doctors have turned their attention to challenging the adequacy of medical record authorizations attached to notice of health care liability claims.
Let’s say that an attorney serves a 60-day notice of claim letter and statutory medical records authorization. The attorney then waits to file the lawsuit after the two-year statute of limitations, but before the two year + 75-day deadline. While technically this appears permissible and, sometimes, may work, it is also fraught with risk.
Many hospital and physician defendants have found this to be a fruitful area for the appeals. The defense argument goes like this: If a notice letter is not proper or the accompanying authorization is not compliant with the statute, then the plaintiff does not get an extra 75 days to file a medical malpractice lawsuit. Even when there are very minor omissions of a healthcare provider’s name from the statutorily-required medical records authorization, appellate courts have so far agreed with defendants and dismissed such cases.
Pretend that you are a plaintiff who saw 20 physician or hospital treaters over the five years prior to the healthcare at issue. You inadvertently leave one of them off your medical records authorization list. If, at any time during the litigation, a defendant discovers that a treater is missing from the list, then the defendant can file a motion to dismiss. The defendant would argue that you are not entitled to an extra 75 days, meaning your case was not timely filed, all because you left out one doctor from your pre-suit authorization list.
I expect that the Supreme Court will eventually grow weary of dealing with these hyper-technical arguments that far exceed the legislative intent in passing tort reform. In the meantime, this is a perilous area for medical malpractice plaintiffs generally and, in particular, for those who hire attorneys with little or no experience in handling medical negligence cases.
If you or someone you care for has been seriously injured as a result of medical malpractice, call 281-580-8800, for a free consultation with an experienced medical negligence lawyer at Painter Law Firm, in Houston, Texas.
Robert Painter is an experienced attorney at Painter Law Firm PLLC, in Houston, Texas, who focuses his practice on medical malpractice issues. Prior to law school, he was a hospital administrator. He represents patients and their families in medical negligence and wrongful death lawsuits against hospitals, doctors, surgeons, and anesthesiologists.
Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.
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This article was originally published in the September/October 2017 edition of "The Houston Lawyer" magazine
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