Texas Medical Malpractice Summary

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Texas adopted a comprehensive tort reform bill in 2003 that codified most statutes applicable to the broad class of “health care liability claims” at Tex. Civ. Prac. & Rem. Code ch. 74 (Westlaw 2007). Many significant changes in the law, including a cap on non-economic damages, apply only to lawsuits filed on or after September 1, 2003. Cases filed before that date continue to be governed by Tex. Rev. Civ. Stat. art. 4590i (Westlaw 2007) (repealed).

Statutes of Limitations

A health care liability claim must be commenced within two years from the occurrence of the breach or tort or from the completion of treatment or hospitalization. Tex. Civ. Prac. & Rem. Code. § 74.251(a) (Westlaw 2007). Only if the actual date of the tort cannot be ascertained should time be measured from the last date of a course of treatment. Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). This statute, rather than the statute of limitations for wrongful death, applies in health care liability claims for death. Bala v. Maxwell, 909 S.W.2d 889, 892-893 (Tex. 1995). Although the statute says that the two-year time period begins to run against minors at age twelve, the Texas Supreme Court held that similar language in the predecessor statute was unconstitutional, allowing those whose claims accrued before their eighteenth birthdays to sue at any time until age twenty. Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995). This holding has been applied under the current statute. Adams v. Gottwald, 179 S.W.3d 101 (Tex. App. 2005, review denied).

Time may begin to run before an injury is discovered. Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex. 1997). However, the courts have held that in certain cases (not including death cases), application of the statute is unconstitutional if it would bar a claim before the claimant has a reasonable opportunity to discover the wrong and bring suit. Shah, 67 S.W.3d at 842; Neagle v. Nelson, 685 S.W.2d 11 (Tex. 1985). For cases filed on or after September 1, 2003, a new statute of repose bars any claim filed more than ten years after the act or omission giving rise to the claim. Tex. Civ. Prac. & Rem. Code § 74.251(b) (Westlaw 2007). There are no reported decisions yet ruling on the constitutionality of the statute of repose in light of cases like Neagle.

Contributory or Comparative Negligence

Texas has adopted the doctrine of modified comparative negligence for tort claims generally. A claimant’s action is barred if his “percentage of responsibility” is greater than 50 percent. Tex. Civ. Prac. & Rem. Code § 33.001 (Westlaw 2007). If his percentage of responsibility is 50 percent or less, the claimant’s recovery is diminished in proportion to this percentage. Tex. Civ. Prac. & Rem. Code § 33.012(a) (Westlaw 2007). The comparative negligence statute does not apply to claims for exemplary damages. Tex. Civ. Prac. & Rem. Code § 33.002 (Westlaw 2007).

Joint and Several Liability

Texas law generally provides that joint tortfeasors are liable severally and not jointly. Each defendant is liable only for that portion of the claimant’s damages that is equal to his percentage of responsibility. Tex. Civ. Prac. & Rem. Code Ann. § 33.013 (West 2007). Settling defendants and responsible third parties are considered when calculating that percentage. Tex. Civ. Prac. & Rem. Code Ann. § 33.003 (West 2007). A defendant may be held jointly liable if his responsibility is greater than 50 percent or, for cases filed on or after September 1, 2003, if he has acted in concert with others to commit certain listed felonies with the intent to harm others. Tex. Civ. Prac. & Rem. Code Ann. § 33.013 (West 2007).

Contribution

A tortfeasor who is jointly and severally liable and pays more than his share of a judgment has a right of contribution against liable co-defendants who have paid less than their percentages of responsibility. Tex. Civ. Prac. & Rem. Code Ann. § 33.015 (West 2007). Texas courts are split on the question of whether contribution must be sought in the original action or can be the subject of a later action. In re Martin, 147 S.W.3d 453, 458-549 (Tex. App. 2004, pet. denied). A settling tortfeasor has no right to contribution and cannot be compelled to pay contribution. Beech Aircraft Corp. v. Jinkins, 739 S.W.2d 19 (Tex. 1987); Tex. Civ. Prac. & Rem. Code Ann. § 33.015(d) (West 2007). However, a settling tortfeasor may retain a common law right of indemnity against one for whom he is vicariously liable. St. Anthony’s Hospital v. Whitfield, 946 S.W.2d 174 (Tex. App. 1997, writ denied) (allowing a settling hospital to sue a settling nurse for indemnity).

Vicarious Liability

In order to establish a hospital’s liability for an independent contractor’s medical malpractice based on ostensible agency, a plaintiff must show that (1) he had a reasonable belief that the physician was the agent or employee of the hospital, (2) such belief was generated by the hospital affirmatively holding out the physician as its agent or employee or knowingly permitting the physician to hold himself out as such, and (3) he justifiably relied on the representation. Baptist Memorial Hospital System v. Sampson, 969 S.W.2d 945, 949 (Tex. 1998). This case rejected the doctrine that a hospital has a non-delegable duty to its emergency patients. It reinstated a summary judgment in favor of a hospital that had posted signs saying that the physicians were independent contractors and had obtained the patient’s signature on an acknowledgment of the same. Id. at 950. A hospital may not be held liable for a physician’s error on the theory of negligent credentialing unless it acted with malice. St. Luke’s Episcopal Hospital v. Agbor, 952 S.W.2d 503 (Tex. 1997).

Expert Testimony

A plaintiff must, within 120 days of filing a health care liability claim, provide expert reports addressing the issues of liability and causation for each physician or health care provider against whom a claim is asserted. The court may grant one 30-day extension to correct a deficient report; otherwise, it must on motion dismiss with prejudice the case against a defendant for whom there is no report and award reasonable attorneys’ fees. Tex. Civ. Prac. & Rem. Code. § 74.351 (Westlaw 2007). Expert testimony is ordinarily needed at trial to establish medical malpractice, Hart v. Van Zandt, 399 S.W.2d 791 (Tex. 1965), but even if expert testimony is not needed at trial, an expert report must be served. Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005) (decided under a similar statute applicable to cases filed before September 1, 2003). Factors to be considered in determining whether an expert is qualified to testify, including board certification or other substantial training or experience, are set out in Tex. Civ. Prac. & Rem. Code. § 74.401 to .403 (Westlaw 2007).

Damage Caps

Texas has three relevant damage caps:

In a medical malpractice action filed on or after September 1, 2003, regardless of the number of causes of action asserted, non-economic damages are limited to a total of $250,000 from all doctors and other individuals. Non-economic damages are limited to $250,000 from each hospital or other institution and a total of $500,000 from all institutions. Tex. Civ. Prac. & Rem. Code. § 74.301 (Westlaw 2007). The cap applies to each “claimant,” which includes everyone seeking damages due to one person’s injury or death. Id.; Tex. Civ. Prac. & Rem. Code. § 74.001(a)(2) (Westlaw 2007). A constitutional amendment authorizes this legislation. Tex. Const. art. III, § 66.

In a medical malpractice action for wrongful death, damages (both economic and non-economic) are limited to $500,000 (in 1977 dollars) plus the cost of any necessary medical or custodial care. Tex. Civ. Prac. & Rem. Code. § 74.303 (Westlaw 2007). The predecessor of this statute was intended to apply to all medical malpractice, but was held to be unconstitutional except for causes of action created by statute, like wrongful death. Rose v. Doctors Hospital, 801 S.W.2d 841 (Tex. 1990). The cap is adjusted annually for inflation, § 74.303(b), and is now approximately $1,650,000. In actions filed on or after September 1, 2003, this limit applies to the total recovery, not separately to each defendant, and includes exemplary damages. § 74.303(a).

In any action not based on certain types of intentional criminal conduct, exemplary damages are limited to the larger of the following amounts: (a) non-economic damages (up to a maximum of $750,000) plus two times economic damages, or (b) $200,000. Tex. Civ. Prac. & Rem. Code Ann. § 41.008 (Westlaw 2007).

Statutory Cap on Attorneys’ Fees

Texas does not limit the amount an attorney may recover in fees in a medical malpractice action.

Periodic Payments

In medical malpractice cases filed on or after September 1, 2003, if future damages are at least $100,000, the court must order periodic payment of future medical costs if any party requests it, and may order periodic payment of other future damages on request as well. Tex. Civ. Prac. & Rem. Code. §§ 74.502 and .503 (Westlaw 2007). Future payments may be funded by an annuity contract. Tex. Civ. Prac. & Rem. Code. § 74.505 (Westlaw 2007). Payments for future loss of earnings continue after a recipient’s death, but other payments terminate. Tex. Civ. Prac. & Rem. Code. § 74.506 (Westlaw 2007).

Collateral Source Rule

Texas adheres to the collateral source rule, under which a claimant’s recovery cannot be reduced by benefits paid from a source other than the tortfeasor, such as health insurance. National Freight, Inc. v. Snyder, 191 S.W.3d 416, 423 (Tex. App. 2006); see Brown v. American Transfer & Storage Co., 601 S.W. 2d 931 (Tex. 1980).

Pre-Judgment Interest

Pre-judgment interest is recoverable in personal injury and wrongful death cases at the same rate as post-judgment interest, Tex. Fin. Code Ann. §§ 304.102 and 304.103 (Westlaw 2007), currently the prime rate, but restricted to a low of five percent and a high of 15 percent. Tex. Fin. Code Ann. § 304.003 (Westlaw 2007). It accrues without compounding, beginning the earlier of the 180th day after written notice of a claim or the date a lawsuit is filed. Tex. Fin. Code Ann. § 304.104 (Westlaw 2007). There is no prejudgment interest on future damages, Tex. Fin. Code Ann. § 304.1045 (Westlaw 2007), or exemplary damages. Tex. Civ. Prac. & Rem. Code Ann. § 41.007 (Westlaw 2007). Under prior law applicable to medical malpractice cases filed before September 1, 2003, pre-judgment interest accrued from the date of injury, unless the case settled within 180 days. Tex. Civ. Stat. Ann. art. 4590i, § 16.02 (Westlaw 2007) (repealed).

Patient Compensation Funds and Physician Insurance

Texas does not have a patient compensation fund or a general program of state-sponsored liability insurance for physicians.

Immunities

Texas law provides for the partial waiver of sovereign immunity in a limited class of tort cases. The waiver most relevant for hospitals provides that a unit of government is liable for personal injury or death caused by the negligence of an employee acting within his scope of employment if it is caused by a condition or use of tangible personal or real property. Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2007). There are many reported cases on the issue of whether an injury is caused by the use of tangible personal property, thus qualifying for the waiver. For example, an injury from misreading or misinterpreting an electrocardiogram is caused by the use of tangible personal property, Salcedo v. El Paso Hospital District, 659 S.W.2d 30 (Tex.1983), but an injury from failure to act on information in a medical record is not, information being intangible, University of Texas Medical Branch at Galveston v. York, 871 S.W.2d 175, (Tex. 1994), and therefore failure to take action based on an electrocardiogram that has been properly read is not. Kelso v. Gonzales Healthcare Systems, 136 S.W.3d 377 (Tex. App. 2004). Giving the wrong medication is use of tangible personal property, and therefore actionable, Angleton Danbury Hosp. Dist. v. Chavana, 120 S.W.3d 424 (Tex. App. 2003), but failing to give the right medication is not. Kassen v. Hatley, 887 S.W.2d 4 (Tex. 1994).

There is a cap on damages against units of government: $250,000 for each person and $500,000 for each single occurrence in claims against the state, a municipality, or an emergency service organization, $100,000 for each person and $300,000 for each single occurrence in claims against other units of local government. Tex. Civ. Prac. & Rem. Code Ann. § 101.023 (West 2007). The state and its political subdivisions are immune from liability for punitive damages in actions for negligence. Tex. Civ. Prac. & Rem. Code Ann. § 101.024 (West 2007). A governmental entity’s purchase of liability insurance does not waive its immunity. Barr v. Bernhard, 562 S.W.2d 844 (Tex. 1978).

Arbitration

Texas does not mandate the reference of medical malpractice actions to an arbitrator or screening panel. However, the legislature has authorized counties to adopt alternative dispute resolution systems, Tex. Civ. Prac. & Rem. Code Ann. §§ 152.001 to 152.004 (Westlaw 2007), and pretrial mediation is routine in many Texas venues pursuant to this legislation. In addition, legislation codified at Tex. Civ. Prac. & Rem. Code Ann. §§ 154.001 to 154.073 (Westlaw 2007) provides standards for the use of mediation, mini-trials, moderated settlement conferences, summary jury trials, and arbitration.

No health care provider can require or even request that a patient sign an agreement to arbitrate liability claims without giving the patient a prescribed form of written notice that the agreement is invalid without the signature of the patient’s attorney. Tex. Civ. Prac. & Rem. Code Ann. § 74.451 (Westlaw 2007).

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Revision Date: February 6, 1998