In the spring of 1977, the Texas legislature — led by Rep. Pike Powers and Sen. Ray Farabee — passed the Medical Liability and Insurance Improvement Act (MLIIA), which was codified as Article 4590i of the Texas Revised Civil Statutes. The MLIIA was intended to respond to the perceived crisis in medical malpractice insurance during that period. Article 4590i introduced several significant changes in the law, including: pre-suit notification, expert reports early in the litigation process, caps on damages and a 2-year statute of limitations. In the intervening decades, parts of the statute have been declared unconstitutional and other parts have been judicially refined. In 2003 the Texas Legislature made significant changes to MLIAA and re-codified it in the Civil Practice and Remedies Code. This article is a brief summary of the significant sections of the law concerning medical professional liability in Texas.
Statute of Limitations
- No medical malpractice action may be brought more than two years from the date of the breach or tort or from the completion of treatment. Tex. Civ. Prac. &Rem. Code, Section 74.251 (a). The changes to the Code also included a 10 year statute of repose in Section 74.251 (b).
- In Kimball v. Brothers, 712 S.W.2nd 538 (Tex. App.-Waco 1986), Aff’d 741 S.W.2nd 370 (Tex 1987) the Texas Supreme Court held the when the precise date of the specific breach or tort is ascertainable, the statute requires the limitation period to run from the date of the breach or tort.
- The statute provides that minors under the age of 12 have until their 14th birthday to file a claim. This has been declared unconstitutional. It is generally believed that the two-year statute of limitation for minors will not begin to run until they reach 18 years of age.
- The medical malpractice statute of limitations (2 years from the date of injury), not the wrongful death statute of limitations, (2 years from the date of death) applies to claims brought for malpractice resulting in death. Bala v. Maxwell, 909 S.W. 2d 889 (Tex. 1995).
- If the deceased patient could maintain a health care liability action at the time of his or her death, a surviving minor child can maintain a wrongful death action deriving from that claim. In that event, §74.021, Civ. Prac. & Rem. Code, tolls limitations as to the minor's claim based upon the minor's age. Richardson v. Monts, 2002 WL 1343214, Tex. App.-Austin, 2002.
- The medical malpractice statute of limitations applies to health care claims, even if the injury was not discovered in time to bring a cause of action. This is a strong departure from the common law “discovery rule” which fixes the start of the statute of limitations period when the injury is discovered or should have been discovered, not when the negligence occurred. However, if the plaintiff can prove that the negligence was fraudulently concealed, then the statute of limitations can be extended. Earle v. Ratliff, 998 S.W.2d 882 (Tex. 1999).
- The statute of limitations can be extended 75 days upon notice of intent to assert a claim. Tex. Civ. Prac. & Rem. Code, Section 74.051.
- Since Sept. 1, 2003 a plaintiff has had to follow certain procedural requirements relating to Expert Reports as required by Tex. Civ. Prac. & Rem. Code, Sections 74.351 Among those are the following:
- Within 120 days after filing a health care liability claim a plaintiff must serve on each party one or more expert reports, with curriculum vitae, of each expert listed in the report for each physician against whom a liability claim is asserted.
- If an expert report has not been served within 120 days, the court, on the motion of the affected physician shall, subject to a 30 day extension to cure any deficiencies in an expert report, enter an order that awards the affected physician reasonable attorney’s fees and cost of court incurred by the physician and dismisses the claim with respect to the physician with prejudice to refilling the claim.
- The court may grant one 30-day extension to the claimant in order to cure the deficiency.
- A court shall grant a motion challenging the adequacy of an expert report if the report does not represent an objective good faith effort to comply with the definition f an expert report. Expert report means a written 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 the failure and the injury, harm, or damages claimed.
- Until a plaintiff has served the expert report and curriculum upon the defendant physician, all discovery in a health care liability claim is stayed except for the acquisition by the claimant of information, including medical or hospital records or other documents or tangible things related to the patient’s healthcare.
- After the claim is filed, all plaintiffs tighter may not take more than two depositions before the expert report is served.
- Any person asserting a health care liability claim is required to give written notice of such a claim by certified mail, return receipt requested, to each physician or health care provider against whom the claim is made at least 60 days before the filing of a suit. The notice must be accompanied by the authorization form for release of protected health information.
- Pre-judgment interest accrues from the date of injury through one day prior to entry of judgment.
- Interest accrues only on past damages, not on damages awarded to compensate for future loss. Tex. Civ. Prac. & Rem. Code, Sections 41.001 (5) and 41.007.
- Generally, expert testimony is necessary to establish a prima facie case of medical malpractice. Duff v. Yelin, 721 S.W.2d 365 (Tex. App. 1986), aff'd, 751 S.W.2d 175 (Tex. 1988).
- A person may qualify as an expert witness on the issue of whether the physician departed from accepted standards of medical care only if the person is a physician who:
- is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;
- has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
- is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standard of medical care.
- Texas law limits damages in a medical malpractice action for wrongful death to $500,000 (in 1977 dollars). Tex. Civ. Prac. & Rem. Code, Section 74. 303 (a).
- This amount is adjusted annually for inflation, Tex. Civ. Prac. & Rem. Code. Section 74.303 (b).
- Noneconomic damages in health care claims limits the liability of a physician or health care provider other than a health care institution t a cap of $250,000 for each claimant, regardless of the number of defendants. Tex. Civ. Prac. & Rem. Code, Section 74.301
The damages cap on noneconomic for claims against single health care institutions inclusive of all persons and entitie3s for which vicarious liability theories may apply is set at $250,000. Tex. Civ. Prac. & Rem. Code, Section 74.301.
In situations where a final judgment is rendered against more than one health care institution, the cap for each institution for noneconomic damages is $250,000. The total possible cap on noneconomic damages is $750,000 comprising the maximum of $250,000 from physician defendants and the maximum of $500,000 from the maximum of all institutional providers. Tex. Civ. Prac. & Rem. Code, Section 74.301.
In addition to the Civil Practice and Remedies Code, the following areas of the law play a prominent role in medical malpractice cases:
- 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, and pretrial mediation is routine in many Texas venues pursuant to this legislation.
- 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, Section 74.451.
Contributory or Comparative Negligence
- Texas has adopted the doctrine of modified comparative negligence for tort claims. If the person bringing the claim is judged to be greater than 50 percent responsible for the injury, he may not recover any damages at all. If his percentage of responsibility is judged to be 50 percent or less, the claimant’s recovery is diminished in proportion to this percentage. Tex. Civ. Prac. & Rem. Code Ann. §33.001 to 33.012.
Joint and Several Liability
- For incidents occurring on or after September 1, 1995, and lawsuits filed on or after September 1, 1996, a defendant may be held jointly liable only if his fault is greater than 50 percent. Tex. Civ. Prac. & Rem. Code Ann. § 33.013.
- 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, (Tex. 1998).
- 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).