In 2003, the Texas state legislature passed House Bill 4, which amended Chapter 74 of the Texas Civil Practice and Remedies Code. This bill, later codified as the Texas Medical Liability Act, made sweeping changes to the way in which medical malpractice cases, also called health care liability claims, can be brought before a court of law.
Texas law now defines a health care liability claim as “a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.” Tex. Civ. Prac. & Rem. Code § 74.001(13). Cases that fall under the large umbrella of “health care liability claims” are subjected to increased hurdles in the litigation process, including heightened notice requirements, caps on recoverable damages, and mandatory expert reports.
Statute of Limitations
Section 74.251 provides litigants with a window of time during which a claimant can bring a health care liability action. The action may not be brought more than two years from (1) the date of the breach or tort if that date can be identified, or (2) the completion of the treatment if a specific date cannot be determined. In cases when medical malpractice results in death, the medical malpractice statute of limitations controls over the wrongful death statute.
The statute provides that minors under the age of 12 have until their 14th birthday to file a medical malpractice claim. However, this rule has been declared unconstitutional by appellate courts because it “violates the open courts provision contained in article I, section 13 of the Texas Constitution as applied to minors.” Adams v. Gottwald, 179 S.W.3d 101, 103 (Tex. App.—San Antonio 2005, pet. denied). In the absence of a constitutional statute governing the time minors have to file a claim, it is generally thought that the two-year statute of limitations will begin to run on their 18th birthday.
Notice and Medical Disclosures
When a person asserts a medical malpractice claim, they are required to give written notice of their claim by certified mail, return receipt requested, to each physician or health care provider they are claiming against. This written notice must be sent at least 60 days before the filing of a lawsuit. The notice must be accompanied by an authorization form for the release of protected health information.
Expert Reports
Perhaps the hallmark of a health care liability action is the inclusion of expert reports, as detailed in Texas Civil Practice & Remedies Code § 74.351. An expert report is a written report regarding the applicable standards of care, the manner in which the care rendered by the health care provider failed to meet those standards, and the causal relationship between that failure and the damages suffered by the patient. Each expert report must be accompanied by the resume, also called curriculum vitae (CV), of each expert listed in the report.
Expert reports are critical because expert testimony is needed to establish a case of medical malpractice. Often, the issue of the case hinges on whether the physician departed from acceptable standards of medical care. In order to qualify as an expert witness on this issue, the expert must prove all three of the following things:
- That they are practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose
- That they have knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, condition involved in the claim; and
- That they are qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of care.
Within 120 days after filing a health care liability claim, a plaintiff has to send to, or “serve on,” each party one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. For example, if a plaintiff is suing two physicians, Dr. Doe and Dr. Smith, they must serve a minimum of two expert reports – one regarding Dr. Doe, and one regarding Dr. Smith.
If an expert report has not been served within the 120-day deadline, or if a report is served but is deemed inadequate, the court may grant one 30-day extension to cure any deficiency in the report. After that period, the defending physician can move to have the claim dismissed with prejudice. To prevent this from happening, a plaintiff may want to make sure their expert reports are ready to serve when they file their original petition.
Discovery Timeline
In the window of time between when a medical malpractice claim is filed and the expert report and CV have been served on all parties, there is a very limited amount of discovery the parties can do. In fact, almost all discovery is paused, or “stayed,” until the expert report is served. One exception is the acquisition of information, including medical or hospital records or other documents or tangible things, related to the patient’s healthcare. Additionally, plaintiffs may take no more than two depositions before the expert report is served.
Once the expert reports have been served, the clock starts on the discovery period. The amount of discovery that can be done in an individual case will depend in part on the discovery level pled in the original petition, and in part on the standard set of discovery requests promulgated by the Health Care Liability Discovery Panel. Tex. Civ. Prac. & Rem. Code § 74.352.
Limits on Liability and Damages
Compensatory damages can be divided into two buckets: economic and non-economic damages. Economic damages – such as past and future medical expenses, lost earnings, loss of earning capacity, and loss of household services – do not have any sort of ceiling. Medical expense damages are generally limited to the medical bills the claimant has actually paid and incurred, or will reasonably pay and incur in the future. For instance, if a patient is charged $20 million for medical bills, but then they (or their health insurance companies) negotiate that number down so they only pay and incur $1 million, then the maximum economic damages they can be awarded is $1 million.
Noneconomic damages, on the other hand, are statutorily limited. Individual physicians or health care providers other than a health care institution, regardless of how many defendants there are in the suit, have their liability limited to $250,000 per claimant. The damages cap on noneconomic claims against health care institutions, inclusive of all persons and entities for which vicarious liability theories may apply, is also $250,000 per claimant for each individual institution, or $500,000 per claimant for all of the institutions. This means the total possible cap on noneconomic damages is $750,000 — $250,000 maximum for all physician defendants and $500,000 maximum from multiple institutional providers.
Conclusion
A plaintiff filing a personal injury claim needs to be aware of the various pitfalls that can keep their lawsuit from going to trial. Thanks to the Texas Medical Liability Act, those pitfalls can be even greater for medical malpractice claimants. This increased scrutiny can shield medical doctors from liability, for better or for worse. Proponents of the TMLA argue that this protection of physicians drives down the cost of malpractice insurance, and thus the cost of medical care goes down for the average patient. On the other hand, the Act’s opponents argue that letting medical professionals be less accountable for their actions ultimately puts the average patient at greater risk for injury—and gives injured patients less ability to recover from their injuries and put their lives back together.
Written by:
Julie Matsen
Law Clerk
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500
Frank Guerra
Board Certified – Personal Injury Law
Texas Board of Legal Specialization
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500
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