Medical Malpractice

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Medical malpractice, also referred to as medical negligence, is a subsect of personal injury law which allows those who have been injured as a result of a health care provider’s failure to appropriately treat their patients.  While the goal of any civil lawsuit is to make an injured person “whole”, or in the same financial position that they would have been in if not for the wrongful conduct of another, medical malpractice claims also involve a component known as future medical needs.  That is, the lawsuit will seek to compensate you for your past medical needs, as well as your medically reasonable and necessary needs into the future.

In Texas, medical malpractice claims are largely governed by Chapter 74 of the Texas Civil Practice and Remedies Code.  This code provision sets forth many of the procedural requirements to maintain a medical malpractice claim, including providing the appropriate pre-suit notice to the healthcare providers, the expert report requirements, and applicable limitations on noneconomic damages.  There are many procedural and technical requirements to maintain a medical malpractice lawsuit in Texas, which is why it is vitally important to retain counsel as soon as you suspect you or a loved one has been a victim of medical negligence.

Once you contact an attorney, an investigation into the facts and circumstances surrounding your injury will be conducted.  This involves, in part, ordering the relevant medical records and consulting with medical experts.  Once this initial, pre-suit investigation has been completed, the decision to file a lawsuit will be made after a detailed conversation regarding the pros and cons of litigation.

What is a Medical Malpractice Lawsuit?

A medical malpractice lawsuit is a civil court action which seeks to hold a health care provider responsible for the injuries they caused.  Given the complexities of modern medicine, there are a number of different types of medical malpractice cases which can be brought.

Types of Medical Malpractice Cases

While there may be one bad outcome, there may have been a number of compounding acts of negligence which caused that outcome.  In such circumstances, there may be multiple theories of liability advanced in a single lawsuit.  Some of the most common types of medical malpractice cases include:

  • Birth Trauma:  Birth trauma exists when a newborn is injured during the birthing process.  While not all birth trauma is medical negligence, there are instances where the health care provider delivering the baby can cause injury.  Frequently medical negligence during the birthing process manifests itself in a number of ways, including a brain injury resulting in cerebral palsy or a brachial plexus injury.
  • Failure to Appropriately Treat:  The most common form of medical malpractice occurs when your health care provider fails to treat your condition appropriately, and their care falls below the applicable standard of care.  The standard of care in medical negligence cases is what a reasonably prudent physician should have done in the same or similar circumstances.  When a health care provider fails to meet the standard of care, such conduct is negligent.
  • Failure to Diagnose:  Often, despite patient complaints, health care providers can miss or overlook an injury.  This is often experienced in the context of cancer.  That is, imaging reports obtained by the physician may show a mass which is missed, and as a result, grows in size until it is subsequently detected by another physician.  Because the initial diagnosis is missed, often the cancer has spread and become more dangerous for the patient.
  • Retained Surgical Equipment:  During a surgical procedure, the number of surgical instruments, sponges, gauze, and other medical items used is mind blowing.  While hospitals have policies and procedures in place which require health care providers to obtain an accurate pre-operative and post-operative count of this medical equipment, there are instances where an accurate count is not performed and medical equipment is left inside a patient’s body.
  • Wrongful Death:  In the most unfortunately of situations, a healthcare provider’s negligence can cause the death of a loved one.

These examples of medical malpractice cases are in no means an exhaustive list of the types of medical malpractice cases which can be filed.

Theory of Liability and Filing the Lawsuit

When filing a lawsuit, the injured party, known as the Plaintiff, must identify the grounds for holding the wrongdoer, known as the Defendant, liable for their actions.  These theories of liability are often based on negligence, intentional conduct, or strict liability.  In medical malpractice cases, most lawsuits are based on negligence—the health care provider failed to meet the appropriate standard of care.  Your attorney will then draft a petition or complaint, depending on whether the case will be filed in state or federal court, and will then file it in the appropriate jurisdiction.  For example, if your injuries occurred in Houston, your lawsuit will likely be filed in Harris County District Court.

Once the lawsuit has been filed, the parties will engage in written and oral discovery.  Written discovery, which includes requests for production, interrogatories, and requests for admission, allow the parties to request and obtain the documents and information necessary to prosecute or defend their case.  Similarly, oral discovery, which include depositions, allow the parties to obtain sworn oral testimony prior to the trial.  These documents, information, and testimony allow the Plaintiff to prove their case, as well as allow the Defendant to defend against the claims brought.

The scope and duration of discovery is governed in Texas by the Texas Rules of Civil Procedure, as well as any local rules the judge may have.  A failure to abide by the discovery rules set forth in the Texas Rules of Civil Procedure or by the Court can result in sanctions levied against you or even the judge dismissing your case.

Settlement and Alternative Dispute Resolution

During the course of a lawsuit, generally after some discovery has been conducted, the parties may engage in either informal or formal settlement discussions.  Fortunately for the parties, both Texas law and federal law have rules of evidence which allow the parties to engage in open and honest settlement discussions without the fear of those conversations being used against them during the trial.  Codified in Texas as Texas Rule of Evidence 408, this rule states:

(a) Prohibited Uses. Evidence of the following is not admissible either to prove or disprove the validity or amount of a disputed claim:

(1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made during compromise negotiations about the claim.

One practical way in which Texas Rule of Evidence 408 is utilized for settlement purposes is during Alternative Dispute Resolution (“ADR”) programs, such as mediation.

Mediation is a private and confidential process which those involved in a civil lawsuit, such as a medical malpractice lawsuit, can use in an attempt to settle their dispute.  Using the shield of Texas Rule of Evidence 408, the parties can have a good-faith dialogue regarding the strengths, weaknesses, and value of the case in an effort to resolve the matter prior to trial.


Trial of a medical malpractice lawsuit can occur one of two ways: before a judge or before a jury.  If the case is tried to a judge, known as a bench trial, the judge acts as both the finder of fact as well as the one to makes the rulings of law.  If tried to a jury, the jury will serve as the finder of fact and the judge will make only the rulings of law.  In the instance of a jury trial, the jury will hear the testimony and evidence, make a determination of what is factual, and then apply those facts to the law, which a judge will instruct the jury to use to make their ultimate findings in reaching their verdict.

To be successful at trial, the Plaintiff in a medical malpractice lawsuit must demonstrate that the Defendant was negligent.  In Texas, this requires that the Plaintiff, who carries the burden of proof, to prove:


If successful at trial, a medical malpractice Plaintiff is entitled to compensation for the injuries sustained as a result of the Defendant’s negligence.  The specific amount of the award will be determined by the jury after seeing the admissible evidence and hearing from competent expert and fact witness testimony on these issues.  Despite the jury’s role in hearing the evidence and making an award, medical malpractice cases are subjected to a number of caps on damages.

In most cases involving negligence of a healthcare provider, Section 74.301 of the Texas Civil Practice and Remedies Code caps a claim for noneconomic damages at $250,000.00 or $500,000.00 if more than one healthcare provider is named as a defendant.  In the instance of wrongful death and survival actions, Section 74.303 of the Texas Civil Practice and Remedies Code limits most actual and exemplary damages to $500,000.00, adjusted according to the Consumer Price Index.  Despite these caps on damages, an experienced medical malpractice attorney has the knowledge and skill necessary to ensure recovery of economic damages, which in most cases are not capped.

Do I need to hire a Medical Malpractice Lawyer?

Must you hire a medical malpractice lawyer if you have been injured? No.  Should you hire a medical malpractice lawyer if you have been injured?  Absolutely, yes.

In most circumstances, Texas law allows an injured person to represent themselves in court, pro se.  Doing so, however, is not advisable.  When representing yourself in Court, the judge will treat and hold you to the same standard as a lawyer.  That is, the judge will make you fully comply with the Texas Rules of Civil Procedure, the Texas Rules of Evidence, and any other statutory or regulatory guideline which all lawyers must follow.  What is more, the Defendant in your lawsuit will be represented by an attorney to fully protect their interests.  Simply stated, if you represent yourself, you place your case and ability to recover for your injuries in grave danger.

By hiring a medical malpractice attorney, you are ensuring that a trained and knowledgeable advocate is in your corner.  A licensed Texas attorney will not only understand the applicable law, but their access to qualified expert witnesses and relationships within the legal community allow for more effective representation.

How much does a Medical Malpractice Lawyer Cost?

Most medical malpractice attorneys do not require clients to pay any up-front attorney’s fees or case expenses, nor do most attorneys require their clients to pay if there is no recovery.  This is known as a contingency fee agreement.  Under a contingency fee agreement, one does not pay any hourly rate for the time their attorney works on their case.  Instead, in the event of a recovery, the attorney receives a portion of the amount recovered on your behalf.  If there is no recovery, the client does not owe any compensation to the attorney.

The attorneys at Patrick Daniel Law, LLC work exclusively on a contingency fee basis for our medical malpractice clients.

Why Patrick Daniel Law?

Preventable injuries due to another’s wrongful conduct or negligence is Patrick Daniel Law’s sole area of practice.  Our attorneys’ knowledge and experience in the area of complex medical malpractice litigation allow us to provide passionate, detailed-oriented representation to our clients. Our team will assist you in seeking the justice you deserve.

Please contact us at 713-999-6666 and let us know how we can help you, or send us your case information for a free evaluation here.

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