Medical Malpractice

In Texas, medical negligence claims are governed by Chapter 74 of the Texas Civil Practice and Remedies Code and applies to all cases filed on or after September 1, 2003. These laws apply to all medial malpractice claims involving hospitals, physicians, nurses, nursing homes, and other healthcare providers.

Notice

Texas law requires that proper written notice must be forwarded to a physician or healthcare provider prior to the filing of suit. The legislature reasoned that healthcare providers should bee allowed 60 days notice prior to filing suit in order to evaluate the claim.

Jurisdiction and Venue

In Texas, the State District Courts have jurisdiction over medical negligence claims. The venue of a particular claim refers to the county in which the lawsuit can be filed. Generally speaking, a medical malpractice case can be filed in the county where the medical services were provided, in the county where the defendant resided at the time of the incident or in the county where a deceased person’s estate is pending in Probate Court.

Standing

In injury cases that arise as a consequence of medical malpractice, the patient has standing to bring a claim against the healthcare provider. Additionally, the patient’s spouse may also bring a claim for loss of consortium and household services. In certain instances involving catastrophic injury, the patient’s children may have standing to bring a claim for loss of parental consortium.

In death cases, the patient’s parents, spouse, and children all have standing to bring a claim under the Texas wrongful death statutes. In addition, a survival act claim may be brought on behalf of the patient’s estate to recover damages suffered by the patient from the time of injury until the time of death. These damages include hospital bills, damages for pain and suffering, and funeral bills.

Proving the Case

In Texas, healthcare providers are responsible for negligence. “Negligence” is defined as failure to use ordinary care, that is, failing to do that which a physician, hospital or person of ordinary prudence would have done under the same or similar circumstances or doing that which a physician, hospital or person of ordinary prudence would not have done under the same or similar circumstances. Expert testimony is necessary to establish negligence. In addition to negligence, a plaintiff must prove a causal connection between the healthcare provider’s negligence and the harm suffered by the patient. This means that the negligent act of the healthcare provider must be directly related to the harm suffered by the patient. For example, if a patient presents to a hospital emergency department with the signs and symptoms of a heart attack, but is diagnosed with heartburn and sent home with no work up and dies two days later of a heart attack, under this circumstance there is a causative relationship between the negligence and the harm suffered by the patient. However, if the same patient did not die two days later of a heart attack, but was diagnosed with lung cancer and died one year later, there is likely no causative relationship between the emergency department’s failure to provide appropriate care for the chest pain and the patient’s subsequent death from lung cancer.

Damages

A. Injury Cases

In Texas, medical malpractice victims have standing to recover the following elements of damages:

• Medical expenses;
• Lost wages;
• Mental anguish;
• Pain and suffering;
• Disfigurement; and
• Physical impairment.

The damages listed above may be recovered for both the past and future. The spouse of a patient that is injured may have standing to recover damages for loss of consortium and household services. In certain instances involving catastrophic injury, the patient’s children may have standing to bring a claim for loss of parental consortium.

B. Death Cases

In death cases involving medical malpractice, the family members with standing to bring a claim can recover the following elements of damages:

1. Conscious pain, suffering, bereavement, torment, extreme physical pain and mental anguish from the moment of injury until the moment of death, and for loss of the enjoyment of life;
2. Pain and mental anguish, or the conscious physical pain and emotional pain, torment and suffering experienced by Decedent before her death as a result of the occurrence in question;
3. Medical expenses, or the reasonable expense of the necessary medical and hospital care received by Decedent for treatment of injuries sustained by her as a result of the occurrence in question; and
4. Funeral and burial expenses, or the reasonable amount of expenses for funeral and burial for Decedent reasonably suitable to her station in life.

In addition, Survival Act damages may be recovered which include the following elements:

1. Pecuniary loss, or that loss of care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value that Plaintiffs in reasonable probability would have received from the Decedent had she lived;
2. Loss of companionship and society, or that loss of the positive benefits flowing from the love, comfort, companionship, and the society that Plaintiffs, in reasonable probability would have received from the Decedent had she lived;
3. Mental anguish, or the emotional pain, torment, and suffering experienced by Plaintiffs because of the death of the Decedent; and
4. Loss of inheritance, or the loss of the present value of the assets that the Decedent, in all reasonable probability would have added to the estate and left in natural death to Plaintiffs.

Disclaimer

The information contained on this website is provided for informational purposes only and is not intended to constitute legal advice. Readers should not act upon this information without seeking professional counsel.

The Klein Law Firm maintains its principal office in Houston, Texas and handles cases across Texas. The availability of this website in jurisdictions in which The Klein Law Firm or any of its attorneys are not licensed should not be deemed or construed as advertising of its services in those jurisdictions.