A medical malpractice case can be more complicated than other injury-related legal claims (such as those stemming from a car accident or slip and fall), and not just because of the complex interplay of medical and legal issues inherent to these kinds of cases. In Texas, as in almost every other state, the person filing a medical malpractice lawsuit (the plaintiff) needs to follow a number of procedural rules at the outset of the case. Plus, you'll need to be aware of and comply with the strict lawsuit filing deadline specific to this type of case. A Texas medical malpractice attorney will have the experience and the skills to navigate this set of rules, but it helps to have an understanding of what's required in order to make sure your medical malpractice claim is successful, so read on for the details.
Medical Malpractice Statute of Limitations in Texas
If you think you have a medical malpractice claim based on a health care provider's negligence or carelessness in Texas, it's important to make sure you understand and follow the statute of limitations as it applies to your situation. This is a state law that sets a strict time limit on your right to file a lawsuit, and the statute of limitations differs depending on the kind of case you want to file in Texas.
The Standard Statute of Limitations for Texas Medical Malpractice Cases
The Texas statute of limitations for medical malpractice lawsuits can be found at Texas Civil Practice & Remedies Code section 74.251. Here's what potential medical malpractice plaintiffs need to know about this law:
- Section 74.251 sets a two-year time limit for filing any medical malpractice lawsuit. The “clock” starts running on the date when the medical error or other wrongdoing occurred.
- If the healthcare provider's error or other misconduct occurred as part of an “ongoing course of treatment,” the two-year time period does not start until that course of treatment is completed.
- If a medical malpractice case is brought on behalf of a child under the age of 12, the lawsuit must be filed by the time the child turns 14.
- Section 74.251 also includes a 10-year “statute of repose,” which means no medical malpractice lawsuit can be filed in Texas if more than 10 years have passed since the occurrence of the alleged medical error.
So, whether your potential case is over a misdiagnosis, surgical mistake, or any other type of error related to medical treatment, make sure you understand how the deadline applies to your situation.
Extending the Deadline for Filing a Texas Medical Malpractice Lawsuit
There are a few situations in which you might be able to pause the running of the statute of limitations “clock” in Texas, including cases where the health care provider's error or misconduct was fraudulently concealed from the patient. In that situation, the “clock” will likely not start running until the patient was able to discover the existence of the malpractice (or through reasonable diligence should have discovered it). Talk to an attorney for details.
A medical malpractice case is difficult to win even without hoping (and proving) that an exception to the statute of limitations applies. And once you miss the two-year window set by the law, you've also missed your chance to have the court hear your case, which means you're left without a remedy for any medical malpractice that might have occurred. That's obviously a harsh result, especially for a patient who has suffered significant harm due to a medical error, and it's an illustration of just how important it is to understand and comply with the statute of limitations.
It's important to note here that compliance with the statute of limitations simply means getting your medical malpractice lawsuit started, by filing the initial complaint and accompanying documentation. It doesn't mean your case has to be thoroughly investigated, documented, and prepared (and ready to go to trial) by the filing deadline. In some situations, if the statute of limitations deadline is approaching, and your lawyer firmly believes in your case, the attorney will file a medical malpractice lawsuit simply to make sure your rights and options are preserved, while the two sides discuss settling the medical malpractice case out of court.
Requirements for Filing a Texas Medical Malpractice Case
Before you can file a medical malpractice lawsuit in the state's court system, there are a number of procedural hoops you'll need to jump through, including serving a specific type of notice to the health care provider(s) you intend to sue and completing an authorization for the release of your medical information And then, after the lawsuit is filed, you'll need to obtain a report from a medical expert. We'll walk through the basic outlines of the process below.
Serving 60-Day Notice of Claim
Texas Civil Practice & Remedies Code section 74.051 requires that you or your attorney provide written notice of the claim (via certified mail, return receipt requested) to each health care provider to be named in the suit, at least 60 days before you file.
The serving of this 60-day notice of claim also acts to pause (or "toll" in legalese) the running of the statute of limitations "clock" for 75 days, essentially adding 75 days to the two-year deadline for getting the lawsuit filed. This gives the plaintiff and all health care providers more time to resolve the case via out-of-court settlement, perhaps before a lawsuit even needs to be filed.
Authorization for Release of Medical Information
Along with the 60-day notice of claim outlined above, you (or more specifically, your attorney) must provide to each named health care provider an "authorization form for release of protected health information," so that each care provider can begin to investigate your claims. The format and wording for this authorization can be found within the text of the applicable statute, Texas Civil Practice & Remedies Code section 74.052.
The "Expert Report" Requirement
Once a medical malpractice lawsuit has been filed in Texas, and the defendant health care provider has filed an "answer" in response to the lawsuit, the plaintiff and their attorney must, within 120 days, serve on the defendant an "expert report" including the expert's curriculum vitae (or "CV," similar to a resumé). Or, within 30 days of the defendant's answer, the plaintiff and his or her attorney have the option of asking the court for a "preliminary determination" as to whether the claim qualifies as a medical malpractice claim that requires an expert report. If the court rules that the claim does require an expert report, it must be served within the later of:
- 120 days of the defendant's answer to the lawsuit
- 60 days of the court's ruling, or
- a date agreed to (in writing) by the plaintiff and defendant(s).
If you ask the court to make a preliminary determination and the court doesn't respond within 90 days, the court must then issue a ruling saying that the claim qualifies and an expert report is required.
The expert report must include "a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed."
Failure to comply with the expert-report requirement could result in the dismissal of your medical malpractice lawsuit, and the court could order you to pay the health care provider's attorney fees and other costs expended to defend the claim prior to its dismissal. The expert-report requirement is spelled out in Texas Civil Practice & Remedies Code sections 74.351 and 74.353. Once the report is served on the health care provider, the provider has 21 days to file an objection to it.
Texas's Cap on Medical Malpractice Damages
Texas, like a number of other states, has enacted a law that limits the amount of compensation plaintiffs can be awarded in medical malpractice cases. These laws, known as "damage caps," typically limit only noneconomic damages in these cases. In a medical malpractice case, noneconomic damages are intended to compensate for the more subjective injuries associated with the health care provider's negligence and can include money for pain and suffering, mental distress, and loss of enjoyment of life, for a few examples. Many states with caps don't limit the amount of economic damages a plaintiff can receive, such as compensation for past and future medical care, loss of earning capacity, or lost wages.
Texas's damage cap laws are a little more complicated, and the limits depend on the type of medical malpractice case you're involved in. Here's an overview:
- Cases involving doctors and other health care providers. Noneconomic damages are capped at $250,000 per claimant, no matter how many health care providers are found liable in the case. Economic damages are not capped in these cases.
- Cases involving a single health care institution. When a single institution (such as a hospital) is found liable for medical malpractice, noneconomic damages are capped at $250,000 per claimant. There is no limit on economic damages in these cases.
- Cases involving multiple health care institutions. In a case where more than one institution is liable for the malpractice, noneconomic damages are capped at $500,000 per claimant—with the condition that no one institution can be liable for more than $250,000 per claimant. As in the situations above, there's no cap on economic damages in these cases.
- Cases involving medical malpractice that results in death. In a wrongful death lawsuit against a health care provider whose negligence resulted in the patient's death, nearly all damages are capped at $500,000 per claimant, regardless of the number of providers or claims involved. The only exceptions to this cap are damages for medical, hospital, and custodial care (past and future) that are required to treat the patient's injuries. This $500,000 cap is regularly adjusted to account for inflation.
For all of the details on Texas's medical malpractice damage caps, you can read the applicable statutes at Texas Civil Practice & Remedies Code sections 74.301 and 74.303.
Getting Help With Your Texas Medical Malpractice Claim
If you have questions about complying with these requirements, or you're close to the two-year time limit for filing a medical malpractice lawsuit in Texas, an experienced attorney will have the answers. Learn more about finding the right medical malpractice lawyer for your case.