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Tort reform laws front-load the work necessary to succeed in a Texas medical malpractice case Contact Now

Here's why it's hard to hire a good Texas medical malpractice lawyer at the last minute

Tort reform laws front-load the work necessary to succeed in a Texas medical malpractice case

In many types of negligence lawsuits, like car wrecks, an injured person can hire a lawyer one day and have the lawsuit filed the next day.

Experienced Texas medical malpractice attorneys don’t handle medical negligence claims that way, though.

Texas medical malpractice expert report requirements

Thanks to tort reform requirement of the Texas Medical Liability Act, medical malpractice plaintiffs have the unique obligation to produce and serve at least one physician expert report on each defendant. Here’s what’s mandatory under the law, and how the statute has real teeth:

• The deadline is just 120 days after each defendant files an answer in the lawsuit.

• The expert report(s) must define the standard of care (what should’ve happened), violations of the standard of care (the mistakes), and how they proximately caused injury, harm, or death.

• Defendants get 21 days to file objections to the sufficiency of any expert report.

• There’s a discovery stay in place until a sufficient expert report has been produced. If the defendant challenges the adequacy of a report, the discovery stay continues until there’s a final ruling by the trial court or, in the case of an interlocutory appeal, the appellate court. The discovery stay essentially prevents plaintiffs from obtaining any documents or testimony except medical records.

• If there’s a final ruling that the plaintiff’s expert report is insufficient, or if the plaintiff misses the deadline, then the court must dismiss the case and order the plaintiff to pay the defendant’s attorney’s fees.

Most expert reports are time-intensive projects

In many medical malpractice cases, the process of fulfilling the expert report requirement is a herculean task.

After obtaining the basic facts and story from the injured patient and family, the first step is to get the medical records. Multiple sets of lengthy medical records may be necessary for the expert to get a complete and accurate picture of what happened. It can take weeks to months for hospitals, facilities, and doctors to turn over medical records, even with hounding from the attorney’s office. Once the records are in, a legal nurse consultant needs to organize them and prepare a chronology.

It’s at this point that it’s time to secure an expert. Physician and nursing experts are busy people, so their initial review takes time. Preliminary opinions need careful consideration and vetting to ensure that the experts accurately reviewed all of the records.

Once the preliminary opinion is in, the lawyer’s office works with the expert toward production of a final report that meets the demanding, stringent requirements of Texas law.

The more time the better

I bet a week doesn’t go by when a someone calls Painter Law Firm days or a few weeks before the statute of limitations—the deadline for filing a medical malpractice lawsuit—wanting to hire us to investigate their case. Almost invariably we aren’t able to help because they don’t have the medical records and there’s not enough time for us to get them or complete an internal review of the merits of the claim, let alone get a medical expert on board.

Even for experienced, competent Texas medical malpractice lawyers, this situation just makes it too uncertain and risky to warrant the significant investment of time and money to investigate a potential claim at the last minute.

You can improve your odds of having a skilled Texas medical malpractice lawyer accept your case—and, in fact, the overall success of your claim—by reaching out to an attorney as soon as is reasonably possible after the medical negligence injury or wrongful death occurs.

Robert Painter is an award-winning 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 all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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