With very few exceptions all medical malpractice lawsuits require expert testimony. The litigation is very complex, as are the medical issues involved. These types of lawsuits usually represent an expensive, difficult, and uphill battle. Defendants (the health care providers), are well-insured for most of these claims, and malpractice insurance companies report that they spend approximately 5 times more to defend malpractice lawsuits compared to what they pay to settle them. Lawyers assigned to defend malpractice cases by malpractice insurers are generally very experienced and extremely well-financed. In addition, malpractice defense lawyers generally have their pick of experts with terrific credentials because health care providers are more than happy to step up to bat for their colleagues. As a result, statistically defendants (the health care providers), have been able to prevail in medical malpractice trials about 85% of the time.
And while the majority of malpractice cases are settled, they are never settled because the insurers “want to do the right thing.” Rather, these cases are settled if and only if the insurers fear a worse result if they insist on taking the case to trial, compared to the cost of settling the case before trial. Accordingly, it is clear that significant experience in handling complex medical malpractice litigation can be essential to increasing the odds substantially of: (a) getting a case settled short of trial; and (b) prevailing at trial if the case cannot be amicably resolved.
According to the United States Center for Medicare and Medicaid, there are a number of specifically identified “Never Events,” also referred to as “Serious Reportable Events,” that in a medical setting are identifiable, serious, preventable, and should NEVER happen in the practice of providing competent in-hospital medical care. Over the past twenty years a list of “Never Events” has evolved into 29 reportable events, which are grouped in 7 categories. These categories are:
- Surgical or procedural events
- Product or device events
- Patient protection events
- Care management events
- Environmental events
- Radiologic events
- Criminal events
Recently (May 2022) the National Health Service of the United Kingdom, a country of 68 million, reported 407 “Never Events” in the past year. This was about eight events per week and was an increase of 11.8% from the year before. A partial list of the most recent “Never Events” in the United Kingdom is below.
- wrong hip implant 12 times
- wrong knee implant 11 times
- wrong site surgery 171 times (includes the hip and knee surgeries listed above)
- wrong blood transfused 7 times
- overdose of insulin 11 times
- foreign objects left inside patients 98 times
- removal of a woman’s ovaries by mistake (plan was to conserve them)
- injections into the wrong eye 6 times
There is no mandatory national reporting of “Never Events” in the United States, which has a population approximately five times greater than the United Kingdom. This is despite the fact that there have been calls for a mandatory and standard nationwide reporting system of “Adverse Events,” a term analogous to “Never Events”. Approximately 28 states collect “adverse” or “never” information and release it to the public. However only eight of these 28 states follow the informally accepted “National Quality Forum” list of “Never Events”. The other 20+ states have some modified version of this list or they have created their own unique lists.
Patient advocates estimate more than 4000 “Never Events” occur in this country every year. It is almost certainly an underestimate. All of these are distressing events, but perhaps the most difficult to comprehend is a surgery performed on the wrong patient or the wrong part of the body. Other “never events” that occur with alarming frequency in this country’s hospitals are: a) giving the wrong medication or the wrong dosage of medication; b) dropping a patient from a hospital bed, operating table, or gurney; and c) failing to adequately control a patient’s blood sugar to the point that the patient goes into hypoglycemic shock, coma, brain damage, and death.
The purpose of reporting the “Never Events” list is to acknowledge flaws in organizations, systems, and procedures and highlight the need for better safety standards. In military aircraft crash cases, the United States learned long ago that the incidence cannot be reduced until we objectively investigate the cause of the crash and publicize it to prevent recurrences. The same is true with regard to medical errors. Yet, there is no standard method to know how many patients die in the United States each year because of medical malpractice. There is NO national database to analyze, study, or from which to learn to prevent recurrences. Those U.S. states that do not report their mistakes publicly are less likely to improve their safety standards or quality of care. Sadly, Texas is one of those states.
Time Limit or Statute of Limitations
Many states, including Texas, only allow victims of medical malpractice to file a lawsuit within two years of the date of the health care treatment giving rise to the claim. This time constraint is Texas law and can be found at the Texas Civil Practice and Remedies Code § 74.251. The period is sometimes extended for claims by minors, but there is no “discovery rule,” by which the statute of limitations is deferred until the patient learns of the error. There are a couple of other exceptions, however, they very rarely apply. The bottom line is that if the suit is not filed within two years of the date of the treatment in issue, it is almost certainly going to be dismissed.
Statute of Repose
Texas has another time deadline on any medical malpractice claim. This deadline is called the Statute of Repose and it bars any medical malpractice suit filed more than 10 years from the date of the treatment in issue, even if one of the exceptions to the 2 year limitations period applies. This is considered an “absolute” limitations period, from which there are no exceptions.
It takes any lawyer significant time to obtain and analyze medical records, retain a consulting expert, send the mandatory pre-suit notices, and file suit. Accordingly, the bottom line on filing a medical malpractice lawsuit is to get it to an experienced malpractice lawyer as soon as possible or your rights may be forever lost.
Expert Medical Witnesses
In almost every case, medical malpractice attorneys must retain qualified expert medical witnesses to evaluate and testify about a claim. Within 120 days of the date the defendant healthcare provider answers the suit, the plaintiff must serve the defendant with a report from a qualified expert, that outlines the medical care involved, specifically identifies what was required under the applicable care standards, specifically states what each health care provider defendant did in deviation from the minimum standard of care, and explain how each deviation was a substantial factor in causing the death or injury in issue. The courts are quite exacting in determining the adequacy of these reports. If they are deemed inadequate, the lawsuit must be dismissed and the judge must assess against the claimant the legal fees incurred by the defendants in defending the lawsuit.
How $ Caps on Medical Malpractice Claims Harm Victims
In 2003, without evidentiary support identifying a problem, the Texas legislature decided Texas citizens desperately needed “tort reform” to quell an imagined tide of “frivolous and abusive lawsuits.” The impact and results of this legislation has negatively and severely limited “non-economic” monetary damages – the loss of enjoyment of the beauty of life – to victims of medical malpractice. They are the clear losers. The clear winners are insurance companies, politicians who receive donations from insurance companies, and health care providers who have been careless or reckless in the standard of care they have provided their patients. Some of the key points, and how the law has affected medical malpractice victims and denied them justice, are listed below.
- “Non-economic damages” are limited to $250,000. And from that amount must come attorneys’ fees as well as expert witness and other case-related expenses, often resulting in a small net recovery to the plaintiff and because prosecution of these lawsuits often requires such a high level of expense, in some cases there can be no net recovery at all. In addition, other laws require that in a successful medical malpractice case, health insurers in most instances MUST be paid / reimbursed first before the patient receives a penny. How does one explain to a teenager who lost all 4 limbs, after lawyer fees and case expenses, that she might receive $50,000 as her compensation for living the rest of her life without arms or legs?
- No adjustments for inflation. When the law was passed in 2003 there was no provision for inflation adjustments. The dollar has had an average inflation rate of 2.41% per year between 2003 and 2022, or a cumulative price increase of 57.12%. If there had been an inflation adjustment provision in the law to preserve the purchasing value of $250,000, the current number would be $392,811. Or stated another way, inflation has reduced the value of the dollar and $250,000 in 2003 is equivalent to $159,109 in 2022.
- And it is even worse. The 2003 law allows multiple defendants in a single event to be “grouped” as a single defendant in a medical malpractice lawsuit. Therefore, if two physicians are found liable for causing harm to a patient, the patient’s malpractice lawyer can only recover a single $250,000 cap from both doctors combined. In other words, the victim can only collect, even if successful, $250,000 for non-economic damages even if there are 2, 3, 4, or more physicians found liable. There is a separate single $250,000 cap if the hospital can also be found liable, but other laws most often insulate hospitals from the negligence committed by staff physicians. And finally, the $250,000 caps apply collectively to all claimants (surviving spouse and children), and not to each claimant, so that depending on the number of survivors, each will be entitled to only a fraction of the $250,000 if the suit is successful.
There are other portions of this law that are designed to limit the ability of medical malpractice victims to claim a fair monetary settlement for the harm they have suffered. The entire law is a sad example of politicians denying victims justice from gross medical incompetence and medical negligence. The newborn, the young, and the old are not fairly compensated for the damage done to their lives. Read more about this topic at Perpetuating Injustice: Non-Economic Damage Caps in Texas.
Examples of Medical Malpractice Cases
“A teenager loses both arms and legs due to medical negligence. She comes to a lawyer for help, but the lawyer is unable to explain how or why the legislature of our state determined eighteen years ago that the non-economic aspects of her injury have little or no value. The lawyer has to inform the prospective client that in 2003, the legislature — purporting to act on behalf of we the people — determined the losses of her ability to walk, to brush her teeth, or even to hold her own future children are simply unworthy of meaningful compensation.”
Perpetuating Injustice: Non-Economic Damage Caps in Texas
December 12, 2021
Medical Malpractice Attorney
Early in his career Mr. Riley’s practice, located in Houston, Texas, was principally involved in defending doctors, hospitals, and nurses in medical malpractice lawsuits. For the past 20+ years, though, in the health care context he only represents victims of medical malpractice. He has successfully handled hundreds of lawsuits, taking dozens of cases to jury verdicts and handling a number of appeals. Mr. Riley has written and lectured extensively to lawyers, doctors, and consumers on medical malpractice litigation over the years and he has worked with dozens of health care professionals as expert witnesses over the past 30+ years. He also has taught Pretrial Legal Procedure and Evidence at two of the local law schools in the Houston area as an Adjunct Professor of Law.