What You Need To Know About Malpractice Cases in Texas
 
In 2003 in a lobby-driven onslaught to deprive patients of their rights to access to the courts, the Texas legislation passed sweeping changes to what have been historic rights of Texas citizens to obtain redress for malpractice in the courts. When contemplating potential malpractice litigation, it is critical to have these key changes in mind. Highlights of the legislation are as follows:
 
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The Damage Cap. Although the press repeatedly quoted the lies of the insurance lobby and told people that the damage cap for non-economic damages in Texas was $750,000.00, that is virtually never the case. The real truth is that for cases involving only physicians, the total cap for non-economic damages is $250,000.00. If there is also a negligent hospital or hospital employee, another $250,000.00 can be added, for a total of $500,000.00. It is almost never possible to reach the $750,000.00 limit, because this involves proving that two hospitals both committed negligence. It takes very little experience and common sense to realize that it is the rare case indeed where a patient is the victim of malpractice in one hospital and then travels down the road to be victimized by malpractice in a second hospital. Thus, the normal situation is for only a $250,000.00 cap, with occasional cases where $500,000.00 is available.
 
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This is important because as consumers of medical care, you must realize that it will cost your lawyers close to $100,000.00 to make the case. The insurance companies in these cases have many, many procedural loopholes they can take advantage of, all of which increase the cost, difficulty and length of litigation. Because of the insurance companies’ tactics, whoever you hire will have to spend a great deal of money to prove your case. This is completely independent of lawyer time or hourly billing of any kind, it is the expense of litigation. Obviously, with expenses in that range, many, many cases in which there is great emotional harm but no economic losses become impossible to litigate. The Republican legislature has made it clear that the policy of the State of Texas is to value people for how much money they earn, and has thus devalued non-working spouses, children and the elderly, such that almost any abuse of them at the hands of negligent health care providers is now without remedy in the courts. For example, due to an opinion last year by the all-Republican Texas Supreme Court construing the 2003 legislative changes, rape and sexual assault are now considered “health care” in Texas if they happen in a health care facility, and the victim has her damages capped at $250,000. It is usually economically impossible to litigate this case.
 
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The Statute of Limitations. There has always been a very strict two year statute of limitations in Texas in malpractice cases, but there have been exceptions made to that over the years for minors, the mentally incompetent, people who could not possibly have discovered their injury within the two years (for example, people in whom surgical instruments or sponges were left), and those who have had their injury concealed from them by fraudulent conduct of their health care providers. In 2003 the legislature went further and placed an absolute ten year “statute of repose” that purports to apply even to those cases. This has not yet been tested for constitutionality.
 
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Procedural Requirements. Health care providers in Texas are provided with an astonishing variety of procedural protections that are not available to any other type of Defendant:

  • Due to an incorrect judicial interpretation of the 2003 legislative changes, health care providers argue that they are entitled in many cases not to give any discovery until after they have been told what the plaintiff’s expert’s opinions are. It is interesting to wonder why a doctor has to know what he is being accused of before he can testify as to what did or why he did it when other defendants such as plumbers, truck drivers, architects, airline pilots or members of the consuming public do not have to be provided a script for their testimony.
     
  • The 120 Day Report. Plaintiff must provide an expert report by the 120th day after filing suit. There is no other kind of lawsuit where this requirement exists, it only exists in health care claims. The report has been elevated by the Supreme Court far beyond its original design in the legislature. Where it was originally meant to show simply that the plaintiff had an expert who looked had looked at the case and found it meritorious, (click here to see the affidavit of former state Senator Sibley, the original author of the report requirement, for its original intent) it now amounts to a procedure by which the case can be, and very often is, dismissed for technical failures of the report. It is almost impossible to ascertain in advance whether a report is adequate; it just depends on the judge that day. This uncertainty greatly increases the cost of litigation, particularly since defendants who are unsuccessful in getting a case dismissed at the trial court almost always immediately appeal that attempt, thus delaying the litigation for months, and in many cases, years before any discovery is even done.
     
  • The Peer Review Privilege. Only in medicine is there a legal doctrine that allows the people who did the harm, the doctors, nurses and hospital personnel, to conduct an investigation, determine the cause of the injury, and then hide from the patient all evidence of the investigation: what they found, what the witnesses said, and why the patient was injured. But this is the law in medical negligence cases. It’s called the “peer review privilege,” and is supposed to foster open and healthy discussion among health care providers that will improve the quality of care. While it may have that benefit, the way it is construed in Texas amounts to a wall that prevents plaintiffs in many cases from discovering what happened to them and why. The courts eagerly enforce this doctrine.
  • The Sixty Day Notice Letter. With the exception of suing the government, only in suits against health care providers is a “notice letter” required. After the changes in 2003, plaintiffs in addition to sending their notice letters sixty days before filing suit must also send with it a medical authorization that allows the defense to gather and look through much of the plaintiff’s medical history without any court supervision or privacy protection. This appalling breach of plaintiff privacy is supposed to “encourage early settlement,” but since 2003, there have been less than a handful of such settlements before suit in Texas. It is simply a legally authorized fishing expedition into the patient’s private medical records with no procedural protections of any kind.
  • Negligent Hiring/Credentialing Cases. In every other area of litigation, if a drug addicted or impaired individual is hired and, while doing the job he was hired to do, he causes harm to someone, the entity that hired him can be prosecuted. Not so in health care cases when the hospital hires a drug addicted physician. The Supreme Court has created a standard called “malice” for those cases, requiring that a patient who is devastatingly injured by a drug addicted physician must prove that the hospital hired the physician with malice towards the patient. Obviously, this is impossible, as has been born out by the cases that have been brought to the Supreme Court under this standard. Though it was never the legislature’s intent to create such a standard in cases by patients for negligent credentialing, the Supreme Court has extended the statute to so hold.
  • The National Physicians Data Bank (NPDB). This is a federally funded data bank, similar to OSHA or the NTSB, in which hospitals and insurance companies are required to report settlements for physicians who cause harm to patients. There is a significant problem of under-reporting, as many hospitals and insurance companies have evolved practices that allow them not to report settlements under the physician’s name. Worse yet, the data bank is secret, and patients and consumers have no access to its content.
  • Mandatory Payout of Future Losses. If a patient is injured in such a way that he or she will require future medical care, then the 2003 legislature required that all or part of that future care must be paid out over time. If the patient dies before the payments are all made, then the payments revert to the doctor who caused the harm. The legislature’s theory was to prevent “windfalls” to the families of patients who are killed before they actually receive all of the medical care that they might have needed with a full life expectancy. It’s astonishing to consider the legislature’s thinking in this: it is a “windfall” to the patient’s family to have them die prematurely, and in order to be sure that the family is not compensated as a result of that death, the legislature wanted to be sure the money went back to the insurance company for the doctor who caused the harm. This only happens in health care liability claims, no other category of defendants gets their money back if their negligence slowly kills someone, but does so a little sooner than expeceted.
 
  

Because of these harsh requirements, those lawyers who do a great deal of medical negligence litigation have to be extremely careful about the cases that they take. The cases take years, they cost a great deal of money, they are extremely difficult, and even with a successful verdict at the trial court level, the history of appeals in malpractice cases to the Texas Supreme Court in the past ten years is almost 100% against consumers. In other words, even plaintiffs who win despite all of the odds and obstacles listed above usually have their victory taken away by the Texas Supreme Court.