Articles Posted in Medical Malpractice

Most Texas medical malpractice cases require experts to prove causation. There are exceptions where a jury does not need an expert to decide causation. Those medical malpractice cases are limited to those cases where a jury can use its own experience and common sense to determine causation. For example, a jury will not need an expert to establish a causal connection when a doctor inadvertently leaves a wire in a woman’s breast.

Another example is an elderly plaintiff who sustained personal injury at a Texas nursing home after he fell while walking down a hall in the office and sustained serious brain injuries . The defendants moved to dismiss the case on the basis that the plaintiff failed to provide expert testimony. However, the Court denied the dismissal indicating that the medical provider’s failure to provide an escort or medical device to assist the plaintiff was within the realm of the jury’s common sense and general experience. Even the defendants’ expert testified that the plaintiff required an escort to prevent falling.

In order for the court to admit expert testimony, the expert must be qualified in the particular area and the admitted facts must support the expert opinion. For example, on Texas negligence claims against a physician or hospital, the expert should be a doctor who can testify on the alleged departure from accepted standards of care. The same logic applies to Texas dental malpractice claims or Texas podiatrist malpractice claims . A nurse is generally not qualified to render an opinion on the medical causation of injury unless that opinion is used in conjunction with another doctor’s opinion.

The lost chance of survival doctrine in medical malpractice cases does not exist in Texas. Ultimately, Texas medical malpractice laws state that a plaintiff’s ability to recover monetary and punitive damages for personal injury is barred where the medical practitioner’s negligence deprived the plaintiff of only a 50% or less chance of survival.

To illustrate, in the Milo matter, the patient underwent a hernia operation. Soon thereafter, he began to complain greatly of pain. It turned out that the surgeon’s sutures had rotted, leading to sepsis and shock. Milo was placed on a respirator. A different doctor tried to take Milo off the respirator and after several attempts, Milo went into sudden cardiac and respiratory arrest, causing brain damage and her death 4 months later. The ultimate question before the court was whether Milo would have survived if the other doctor had not tried to take her off the respirator. The plaintiff’s expert testified that before the debacle with the respirator, Milo only had a 40% chance of surviving her pre-existing condition with the sutures. Because the negligence dealing with the respirator reduced the plaintiff’s already less than even chance of survival, the Texas Supreme Court barred recovery for the respirator negligence as a matter of law.

In Rodriguez, parents of a baby brought a Texas medical malpractice claim for failure to give the mother antibiotics to the mother and infant, resulting in the baby’s death. The defendants argued that the plaintiffs failed to provide an expert who testified that an earlier provision of the antibiotic would have saved the infant. The court barred recovery because the experts could not testify that the baby’s chance of survival would have been greater than 50% had he been administered the antibiotics.

The most difficult aspect of proving the San Antonio and greater Texas medical malpractice case is proving causation through expert testimony.

There have been incredibly vast changes in the law of medical malpractice. In the late 1970s, the Texas legislature was tasked with remedying the “medical malpractice insurance crisis” which allegedly was the product of an increase in the number of malpractice claims and increasing frequency of accusations against doctors. In 1995, the Legislature passed several bills to address the issue of lawsuit abuse and additional tort reform measures in 2003 resulting in what is infamously known as Chapter 74 of the Texas Civil Practice and Remedies Code (CPRC).

Today, medical malpractice in San Antonio and Texas possesses its own specialized body of rules that are different from other types of traditional San Antonio and greater Texas personal injury cases.

As an update to our last blog post, several important Texas medical malpractice cases

have emerged that can affect residents of San Antonio and greater Texas.

In Dallas, a patient suffered severe and permanent brain damage in Texas when Baylor medical center’s emergency care center did not allegedly detect a cerebral hemorrhage in the patient. The patient’s medical expert discussed the standards of emergency care specifically with respect to a physician assistant (PA) and his report met the statutory elements of causation.

In 2009, there were several seminal cases in the area of Texas medical malpractice and Texas nursing home abuse litigation .

In Dallas, the patient brought an action against both the physician and the physician’s assistant (PA) for their failure to follow up on a mass detected on a mammogram. It is important to note that the expert report on behalf of the plaintiff has to address the specific standard of care for both the doctor and the PA.

In a Texas dental malpractice case out of Corpus Christi, the dentist allowed her assistant to remove the crown and grind the plaintiff’s teeth. The dentist was alleged to have committed malpractice by giving work to a non-dentist and keeping unsuitable dental records.

Although Texas reforms have put the breaks on a lot of Texas medical malpractice claims , there are still several great examples of medical negligence cases which can be brought by a Texas medical malpractice lawyer.

In one case, a patient fell from a hospital bed and alleged several acts of negligence. After initially being dismissed for failure to file a timely medical report, the Texas Supreme Court reversed and held that the claim that the claim the bed had been negligently installed was not considered a health care liability claim. Nursing home negligence cases require extensive and aggressive litigation.

In another case, plaintiff’s daughter was sexually assaulted by a nurse’s aide, and the plaintiff sued two nursing homes for failure to file misconduct reports as required under the law. The plaintiff claimed the two (2) year statute of limitations for reporting medical malpractice was tolled on account of the daughter’s mental incapacity. The Appellate Court held that the failure to report misconduct was a health care liability claim and the tolling of the statute of limitations was inapplicable.

There have been several San Antonio nursing home personal injuries which merit comment.

The executrix of the estate of a San Antonio nursing home resident sued 2 doctors and the nursing home for medical malpractice. The alleged victim was a 72 year old woman who developed a staph infection and sepsis after her back surgery. The appellate division dismissed the case on the basis of an inadequate expert report. The Court specifically cited failure to link the nursing home’s failure to tell the physicians of drainage issues with the woman’s subsequent death from sepsis.

In a Texas pharmaceutical drug injury and medical malpractice case, a woman sued Eli Lilly claiming that the company’s drug warnings were so defective as to contribute to his suicide. Texas law is instructive on this point. The plaintiff has to prove that the doctor would have changed their decision to prescribe a particular drug if the doctor was aware of an alternative drug warning. It is the pharmaceutical company’s duty to warn the doctors (known as learned intermediaries) as opposed to direct warnings to the consumers. Ultimately, doctors are aware of the risks of the drug and can make the consumer patient aware of those risks. The 5th Circuit did indicate that the read and heed presumption (i.e. the patient will follow a warning if one is given) was not applicable to failure to warn product liability cases against pharmaceutical companies involving a learned intermediary. Ultimately, the plaintiff failed to prove causation because he did not adequately show the doctor would have changed his mind given an alternative warning.

In proving malpractice, a San Antonio Texas personal injury lawyer must be extremely careful in choosing his expert witnesses. Many a Texas pharmaceutical injury case or malpractice case has been dismissed for inadequate expert witnesses.

One potential downfall is that a defendant physician must have his principles tested according to the basic teachings of the school to which he belongs. For example, an osteopathic surgeon is generally judged on principles from the osteopathic school of medicine. The rule is known as the Bowles Rule and it states that a Texas medical malpractice plaintiff must generally provide an expert against the defendant doctor from the same school of practice.

There are exceptions to the Bowles Rule. For example, in Porter, a plaintiff suffered a serious spinal injury in Texas after a doctor negligently administered a spinal anesthetic. The defendant physician was from the osteopathic school of medicine. The plaintiff’s expert was from a medical, not osteopathic school. On appeal, the Texas Supreme Court cited exceptions to the Bowles rule where the particular field of medicine is equally developed in all fields of practice and where the use of particular medical devices are common in all fields of practice. In Porter, the Court concluded that both the medical and osteopathic practices utilized the same way of administering the anesthetic and medical experts could testify against osteopathic physicians.

In the late 1990s, the Texas Supreme Court indicated that the substance of an expert’s testimony must be considered, specifically the data the expert relies on to form his/her opinion. If the foundational data upon which the expert bases his opinion is unreliable, then the expert’s opinion will be considered unreliable.

Very often, in Texas pharmaceutical injuries or Texas wrongful death cases from exposures to lethal substances, the Court looks at epidemiological studies of the substance’s effect on a population. The study must demonstrate that the risk of disease or injury for the population of people exposed to the substance is twice the risk of the population contracting the same disease who have not been exposed to the substance.

To illustrate, if a disease naturally occurs in 6 out of 1000 people when they are not exposed to a certain drug or substance, then a study would have to show that more than 12 out of 1000 exposed to the drug or substance would suffer the disease. Another option is that the epidemiological study must show significant results at a 95% confidence level.

Many plaintiffs now ask what can be recovered in a Texas wrongful death medical malpractice case . Under Texas Civil Practice and Remedies Code (TX CPRC ) Section 74.301, there is a cap of $250,000 on “non-economic” damages.

Non-economic damages compensate an injured plaintiff for physical pain and suffering, mental or emotional pain, loss of consortium (the services of a spouse), disfigurement, physical impairment, and other types of non-monetary losses.

Exemplary damages, also known as punitive damages, are those damages which are often assessed against defendants for reckless or malicious behavior. Juries award these types of damages for the defendants’ behavior. Exemplary damages are not included in the cap for non-economic damages.

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