Don't be a victim twice: Risks of delay in hiring an experienced Texas medical malpractice attorney
New Houston Court of Appeals opinion highlights a risk of waiting too long to hire a medical malpractice lawyer
As a Houston, Texas medical malpractice lawyer, I receive a lot of calls from patients requesting legal help many months after the healthcare in question ended. While I never think this is a good idea, a recent opinion released by Houston’s First Court of Appeals gives another reason why.
Three reasons not to wait before hiring a medical malpractice attorney
Before getting into that opinion, I want to point out three other important considerations on why it is a bad idea to wait a long time before pursuing a medical malpractice claim.
First, Texas has a general statute of limitations for negligence cases, including medical malpractice, of two years. In other words, the general rule is that if a plaintiff waits to file a lawsuit over two years after the alleged negligence occurred, then it is time-barred and will be dismissed. With that said, there are different tolling provisions or exceptions that may apply to particular facts, so it is always important to consult with an experienced medical malpractice attorney.
In my experience, when an injured patient or family member calls close to the two-year statute of limitations deadline, they are rather frantic and often do not have all the medical records and radiology images necessary to review the case. Simply put, even if they have a potentially meritorious case, there is just not enough time to help them before the deadline and they get turned away.
Second, medical malpractice cases are different from other types of negligence cases. Texas Civil Practice & Remedies Code Section 74.351, which is part of the strict tort reform law, procedures require medical malpractice plaintiffs to produce a medical expert report and accompanying curriculum vitae within 120 days of the defendant answering a lawsuit.
There is a significant amount of work that goes into securing the mandatory expert report, including obtaining, organizing, and analyzing all the relevant medical records. At Painter Law Firm, we immediately order all necessary medical records as soon as we are hired by a client. Some hospitals and physician offices, though, process these orders at a snail’s pace and must be hounded and hounded by our staff to produce them. Meanwhile, precious time and deadlines are running.
Third, memories fade. The best time to talk with a competent medical malpractice attorney about your potential case is shortly after the negligence occurs. If you wait a year or longer, you may naturally forget some important facts.
A new reason identified by Houston’s First Court of Appeals
On July 26, 2018, the Houston First District Court of Appeals released its opinion in the case styled Melissa Wendt, Individually and as Executrix of the Estate of Donald Wendt v. Milan K. Sheth, M.D. The case was on appeal from the 270th District Court, in Harris County, Texas.
This medical malpractice and wrongful death case was filed at the trial court level on February 4, 2014, which was three days before the statute of limitations deadline.
The underlying facts are sad. A cardiologist perforated (punctured or tore) the patient’s artery while performing an angioplasty. The cardiologist called an anesthesiologist, who improperly intubated the patient, causing a fatal loss of oxygen.
In the original petition, the defendants named as defendants, Houston Methodist Sugar Land Hospital, two physicians by their full name, and an anesthesiologist by only “Dr. Smith, M.D.” The plaintiffs explained that, “After a diligent search no information or address for Dr. Smith” could be located, but that “a medical record from a ‘Smith’ indicates a ‘Smith’ was an anesthesiologist during the relevant periods . . . .”
The court of appeals noted that the medical records misidentified the anesthesiologist involved as “Dr. Smith,” but the actual anesthesiologist was named Dr. Milan Sheth. Dr. Sheth prepared and signed handwritten notes about his consultation.
As a medical malpractice attorney handling cases all over Texas, I have reviewed many medical records. While most parts of medical records are now in electronic format—meaning typed text, anesthesia records are a notable exception that are still handwritten, often legibly. That was exactly what happened in the Wendt case, Dr. Sheth’s handwritten anesthesiology notes had an illegible signature with “Sheth” printed below.
On December 2, 2014—almost 10 months after the statute of limitations past—the plaintiff filed a supplemental petition that properly named “Dr. Milan K. Sheth, MD” as a defendant, providing his practice address at Greater Houston Anesthesiology.
Dr. Sheth filed a motion for summary judgment, asserting the affirmative defense of limitations. The trial court granted the motion for summary judgment and rejected the plaintiff’s arguments that she had “named the correct defendant” and had only misspelled his name because the handwriting in the medical records was illegible.
The plaintiff filed an appeal with the Houston First Court of Appeals, testing the theory that the supplemental petition correctly naming Dr. Sheth relates back to the original petition which named “Dr. Smith,” which would mean that the petition was timely filed.
In analyzing the facts of the case, the court of appeals considered a legal concept known as misnomer, which is when a party mis-names itself or another party, but the correct parties are involved. On appeal, the plaintiff essentially argued that naming “Dr. Smith” instead of the correct physician was permissible because it was based on the “available facts.”
In rejecting the argument, the First Court of Appeals found that to prove misnomer, a party must show that there was a mistake in the name used in the pleading, but also that the correct parties were already involved in the lawsuit, and that it would not mislead or disadvantage anyone. In correctly naming “Dr. Smith” did not lead to notice within the statute of limitations to Dr. Sheth, so the plaintiff did not meet the standard.
The part of the appellate court opinion that really captured my attention said, “The face of the original petition filed in this case demonstrates that at the time it was filed, the investigation necessary to identify Dr. Sheth and name him as a defendant was incomplete.” The court then added, “But no reason has been suggested why informal investigative methods and formal discovery procedures were inadequate to facilitate the identification of Dr. Sheth during the 2-year limitations period applicable to this claim.”
While I do not know the precise circumstances of what happened in the Wendt case, I suspect that the plaintiff’s attorney was hired well into the two-year statute of limitations period. One clue is that the lawsuit was filed only three days before the statute of limitations expired and another clue is not even knowing the actual identity of one of the key defendants. This entire legal outcome could have been avoided if the suit had been developed and worked up earlier. Even filing the original petition three or four months earlier would have allowed discovery that would have led to the identification of Dr. Sheth in a timeframe that would have allowed him to be properly named within the limitations period.
We are here to help
The take-home message from this case is that if you or a loved one is injured poor care by a hospital, nurse, physician, anesthesiologist, or surgeon, do not waste time in contacting an experienced medical negligence attorney.
Painter Law Firm is here to help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.
All consultations are free and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Bryan/College Station, and Waco.
Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2017, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.
Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.
The Joint Commission has emphasized improving surgical errors as a 2018 National Patient Safety Goal [...]read more
Academic/teaching hospitals do not consistently supervise still in their training, which can put patients at risk [...]read more
Hiring a competent, experienced medical malpractice attorney can mean the difference between a lawsuit and a dismissal
The Joint Commission has emphasized improving surgical errors as a 2018 National Patient Safety Goal
Academic/teaching hospitals do not consistently supervise still in their training, which can put patients at risk
87% of strokes are ischemic and 13% are hemorrhagic
Published in the July/August 2018 edition of "The Houston Lawyer" magazine