Texas has several laws that affect any medical malpractice claim filed in the state's civil court system. In this article, we'll look at some of those laws, starting with the time limit for filing a medical malpractice claim. We'll also look at the "cap," or limit, that Texas places on damages in medical malpractice case and the special rules governing who pays those damages.
Time Limits for Filing a Texas Medical Malpractice Case
Texas has a "statute of limitations" that sets a time limit on filing a medical malpractice case in court. In Texas, a person injured by medical negligence has two years to bring a lawsuit to court. Typically, the two-year clock begins running on the date the injury was or could reasonably have been discovered -- which, for some cases, is not the same day the injury was inflicted.
If the injury was due to a course of continuous treatment, the two-year statute of limitations begins to run on the last day of treatment, unless the injury could have been discovered earlier.
Texas also has a "statute of repose," which states that no matter when a medical malpractice-caused injury might have been discovered or treatment might have ended, a case must be brought within ten years of the date the negligent act occurred. Cases that are filed more than ten years after the date of injury cannot be brought to court in Texas.
Damages Caps in Texas Medical Malpractice Cases
Texas is one of many states that utilizes a damages cap in medical malpractice cases. Texas's medical malpractice damages caps apply to non-economic damages only. Non-economic damages include compensation for pain and suffering, loss of enjoyment of life, anxiety and stress, and similar more subjective losses caused by the defendant's malpractice. Economic damages, which cover financial losses like medical bills and lost wages, are not capped.
Texas caps non-economic damages for medical malpractice at $250,000. This cap applies to judgments against physicians, health care providers, and health care institutions.
Joint Liability and Periodic Payments
In Texas, special rules apply in medical malpractice cases in which more than one defendant is found to be responsible for the plaintiff's injuries. Under Texas's "joint liability" rule, each defendant is responsible only for a percentage of the total damages that equals that defendant's share of fault.
For example, suppose that a plaintiff is injured during a surgery. At trial, the jury finds that the surgeon is 70 percent at fault for the plaintiff's injuries, the anesthesiologist is 15 percent at fault, and the hospital is 15 percent at fault. Under Texas's joint liability rule, the surgeon is responsible for paying only 70 percent of the total damages award. If the surgeon cannot pay, the injured plaintiff may not seek the surgeon's 70 percent share of the damages from either the anesthesiologist or the hospital. The anesthesiologist and the hospital are only responsible for paying their own 15 percent shares of the damages.
Texas courts are also required to order "periodic payments," or payment in installments, on any damages award of $100,000 or more.
Expert Reports and Expert Testimony
In Texas, an injured person (or his or her attorney) who files a medical malpractice claim in court must also serve an expert report -- similar to an affidavit of merit -- on each defendant within 120 days of filing the claim with the court.
The expert report must summarize:
- the opinion of an expert regarding the applicable standard of care,
- the way in which the defendant failed to meet that standard, and
- the causal relationship between the failure and the harm inflicted on the plaintiff.
- be a physician
- be practicing medicine when he or she gives testimony or have been practicing medicine when the claim arose
- have knowledge of the accepted standards of medical care for the diagnosis, care, or treatment of the injury, illness, or condition involved in the case, and
- be qualified on the basis of training or experience to offer an expert opinion on the accepted standard of medical care.