Medical Malpractice

In 1965 Federal Government was injected into the physician-patient relationship. Prior to that time, Physicians were the governing authority. Since that time, government control has impacted the practice of medicine and health care delivery, beyond the authority of the primary care physician. However, certain principles continue to govern:

Above all a health care system/hospital must function so that patient safety is top priority. All healthcare providers and practitioners owe patients a duty to protect the patient from injury or worsening a the patient’s condition. 

Over time research data substantiates an increasing use of technology, and diagnosis through expanding use of AI for artificial determination of “normal ranges”; diagnostic code payment as determiners of diagnostic criteria and treatment decisions; leading to increasing incidence of medical/hospital and health care system, physician and practitioner level errors that result in patient injury and death. This data is publically available. Yet, by definition –

 A physician uniquely is the only practitioner with the authority to diagnose a patient. A physician may “delegate” that responsibility, but remains responsible for ensuring the competence and accuracy of that diagnosis. 

An advanced nurse practitioner (NP) must function under a written prescriptive authority agreement  with one or more physicians, depending upon the area of her specializaton.

 A physician’s assistant (PA) does not have the same basic education as an advanced nurse practitioner, let alone the frame of reference of a physician, and must function under a prescriptive authority agreement with one or more physicians, again depending upon the area of practice.

 An Emergency Medical Technician (EMT) credential does not require the underlying basic educational requirements of an R.N. 

 An EMT, NP or PA who practice in an ER, Labor and Delivery, ICU, on a nursing unit etc.) must be credentialed and approved to do so by a the hospital, health care facility, physician group practice – and must be provided frequent physician supervision and evaluation  (or for those functioning under am RN – frequent supervision and evaluation) to assure medical competency and accuracy of practice. 

In Texas, each of the above levels of practice must qualify under a licensure board, so that information as to their qualification is publically available.   

Hospitals and long term care and specialty care facilities which contract with Medicare and Medicaid in order to obtain  payment for health care services must not only meet Texas licensure requirements, but Federal and State regulations as well. This information is also publicly available.  

Medical Malpractice Lawsuit

Medial Malpractice is a cause of action against a health care provider or practitioner, facility or entity (which is more specifically defined based by case law) and for non-government owned facilities, must be brought according to specifications found in Tex Civ Pract Rem Code § 74.001 et seq. and involve many other statutes and regulations. It is complex litigation, and depending upon the facts of the case, varies in the degree of evidentiary proof required. However, generally, a complainant/plaintiff must demonstrate evidence the offending provider(s) must produce  medial expert opinion as to each defendant, by a person who is qualified in the same area of practice as the defendant (s) to substantiate that defendant had a specific duty to act according to the relevant “evidence-based standard”; facts that demonstrate how that defendant violated that standard, facts demonstrating what should have been done; that failure to follow the evidence based standard foreseeably would cause patient injury,  how that violation caused injury and that but for the violation the plaintiff would not have incurred that same injury.   

In other words, the mere fact a patient was unfairly handled, treated, or failed to be informed does not mean that a cause of action against the provider exists or could be successful.  Defendants have many affirmative defenses, not the least of which is that a plaintiffs’ injuries were caused primarily by his pre-existing medical conditions – such as those for which he was hospitalized or being treated (i.e. known complications) of which he was informed; and prior underlying chronic or progressively debilitating conditions.  

A plaintiff/complainant has 2 years from the cause of the injury in which to file a claim- with only 1 exception – and that is –  if the plaintiff complies with statutory notice requirements within the 2 year period, 75 days will be added.  Within the 2 year period he must give notice, and produce requisite documentation, including a statutorily worded authorization that allows the defendant(s) to obtain records from all of the defendants health care providers – those involved in the injury as well as all others – during the last 5 years. These pre-suit requirements are absolute and failure to comply can result in loss of ability to bring a lawsuit, even if it is  a valid claim.  That is why a potential claimant/plaintiff – and/or someone with power of attorney authority – working on behalf of an injured patient/plaintiff MUST ACT QUICKLY to secure medical records, identify the name address, telephone number and approximate dates of treatment/care by all health care practitioners within the last 5 years, and find an attorney who is willing to obtain medical evaluation as to whether a lawsuit exists – and timely meet statutory deadlines.

If a government health care facility  or hospital is the alleged source of injury, a patient has an extremely short time to find an attorney and file suit — currently 6 months from the date of the injury; and notice must meet the Texas Tort Claims Act requirement. Injuries caused in Federal/Veterans’ Administration Health Care/Hospital facilities are even more complex with greater and varying federal statutory rights – that require immediate retention of an attorney who specializes in Federal or Texas Tort claims medical malpractice law.   

It is important for the patient to understand, that not all attorneys will take medical malpractice cases, as they have become increasingly complex, expensive and prohibitive to maintain on a contingency basis.  Meaning, a patient is asking an attorney to invest in and fund his case — i.e. a contingency attorney must decide whether he will take on the risks of underwriting your case and a jury will award enough money to meet past, and future needs caused by the injuries — as well as for the attorney’s time and increasingly higher expenses for bringing the case.  

Neither the defense nor the plaintiffs’ attorney “control” how fast the case will move along a court docket or resolve by settlement or jury.  Texas judges are allotted great discretion over their docket and case control. The majority of sitting judges are unfamiliar with this law, and have never tried a medical malpractice case which usually involve  a plethora of factual and legal details that involve court decisions. As example, at the present time, most medical malpractice cases involve an early appeal to determine qualifications of a plaintiffs’ expert witness(es), or other legal issues decided by a trial court’s order.  Generally, trial court judges try to avoid scrutiny of their decisions by appellate courts.  In other words, with few exceptions these cases take several years to resolve.  

The Texas Constitution Provides

All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law. TEX. CONST. art I, § 13.

The Texas Supreme Court confirms “the right to bring a well-established common law cause of action cannot be effectively abrogated by the legislature absent a showing that the legislative basis for the statute outweighs the denial of the constitutionally-guaranteed right of redress.” ….the Court also holds that a statute’s application violates the open courts provision when it bars a common-law cause of action before the litigant has a reasonable opportunity to discover the wrong and bring suit. Here, the 2 year statute of limitations is deemed “reasonable time”. The 6 month notice requirement for government institutions is a compromise of the sovereign immunity provided to government institutions.

Rights are Guaranteed by the Texas Constitution’s Open Courts Provision?

The Texas Supreme Court has recognized at least three separate constitutional guarantees originate from this constitutional provision:

1. Courts must actually be open and operating and the the legislature must place every county within a judicial district (thereby providing right to appeal).
2. Citizens must have access to those courts so that they can not be impeded by unreasonable financial barriers, meaning, the legislature cannot impose a litigation tax in the form of increased filing fees to enhance the state’s general revenue.
3. Meaningful legal remedies must be afforded to citizens, as illustrated by Chapter 74.001, which is the legislature’s provision for a citizen to assert a common law cause of action for medical malpractice, which contains limitations that 20 years ago were considered “reasonable” (e.g. cap on non-economic damages included because of alleged need for “tort reform”).

Are Rights Guaranteed by the Texas Constitution’s Open Courts Provision?

The Texas Supreme Court has recognized at least three separate constitutional guarantees emanating from the constitution’s open courts provision:

1. Courts must actually be open and operating, so that, for example, the legislature must place every county within a judicial district.
2. Citizens must have access to those courts unimpeded by unreasonable financial barriers, so that the legislature cannot impose a litigation tax in the form of increased filing fees to enhance the state’s general revenue.
3. Meaningful legal remedies must be afforded to citizens, so that the legislature may not abrogate the right to assert a well-established common law cause of action unless the reason for its action outweighs the litigants’ constitutional right of redress.

These issues have been challenged as the legislative limitations, including cap on non-economic damages, has lowered the defendants’ and their professional liability insurance companies’ costs of litigation to the point that only a fraction of the number of cases are being filed due to the inordinate complexity and escalating costs of prosecuting a medical malpractice case. This litigation has resulted in a correlating rise in medical and provider errors, misdiagnosis, patient injuries and death. Thus, the health care system is failing its purpose, failing to prioritize patient safety patient rights.