Health care providers, decked out in clean uniforms and working in well-scrubbed surroundings project an air of unimpeachable competence and trustworthiness. They perform modern miracles each day whether that’s treating a nasty infection or extending the life of a loved one with the latest surgical procedure.
But the medical profession is not perfect. Doctors and hospitals make thousands of serious errors each year causing unnecessary death and suffering. Many of those errors go unreported. There is no law requiring doctors to publicly admit mistakes and few doctors will do so voluntarily.
According to research published in 1999 by the National Academy Press Institute of Medicine, as many as 98,000 people die in hospitals each year due to preventable medical errors. Institute of Medicine researchers called on the health care industry to raise professional standards and to create better reporting systems so that the health care industry could learn from its mistakes.
Unfortunately, that did not happen. And the death toll due to medical errors continued to rise.
Deaths due to medical error rose to 250,000 in 2013, according to a study conducted by the Johns Hopkins University School of Medicine. According to these researchers, if they were included in the Center for Disease Control’s reporting, medical errors would be the third leading cause of death in the United States.
Only heart disease and cancer cause more deaths than medical errors. By plugging medical errors into the CDC’s annual report of the leading causes of death we can see the magnitude of the health danger posed by medical malpractice.
Leading Causes of Death in The US Based on CDC Data
|Chronic Respiratory Diseases (COPD)||149,205|
|Influenza and Pneumonia||56,979|
Problems that occur most often during medical treatment are bad reactions to medication, improper transfusions, surgeries performed on the wrong body part, and even surgeries performed on the wrong patient. The incidence of medical error during emergency care is even higher.
Public Generally Unaware of Malpractice
Dr. Martin Makary who was part of the Johns Hopkins team that conducted the study, said that the prevalence of medical errors is not known by the general public because there is no requirement that doctors report medical error as a cause of death.
“Incidence rates for deaths directly attributable to medical care gone awry haven’t been recognized in any standardized method for collecting national statistics,” Makary says. “The medical coding system was designed to maximize billing for physician services, not to collect national health statistics, as it is currently being used.”
Makary said would like to see medical error listed as a cause of death on death certificates. He would also like to see the CDC include medical errors in its annual reporting on the leading causes of death in this country.
In fact, doctors and hospitals rarely own up to medical errors. According to a study published in the November 2013 Journal of Patient Safety, a mere 9 percent of patients surveyed said the hospital voluntarily disclosed medical errors in their case.
In Texas, the Texas Medical Board receives over 7,000 complaints a year from patients and their families regarding health care providers in the state. The board investigates about a quarter of these complaints, issuing professional discipline to the worst offenders but no compensation to victims.
However, the board is not keeping up with the rising level of complaints. According to statistics recently published by the board, the number of patient complaints rose 44 percent from 5,211 in 2006 to 7,510 in 2015. During the same time period, the number of investigations of Texas doctors declined 9 percent from 2,032 to 1,853.
Medical Mistake Horror Stories – Real Malpractice Cases
Here are some horrific instances of medical malpractice that occurred in other states where injured parties were able to obtain full compensation for carelessly inflicted injuries.
In 2014, a jury in Florida awarded $15.6 million to the family of a woman who died of cervical cancer three years after a medical laboratory technician erroneously read her pap smear as indicating negative for cancer.
An Illinois jury awarded $53 million to the family of a woman whose son was born with debilitating brain injuries after exhibiting symptoms of fetal distress, which went untreated for 12 hours. The mother arrived at the hospital at 2 a.m., a time when on-duty staff — allegedly medical students — were unable to respond reasonably to the child’s condition, according to the mother’s attorney.
In 2013, a Pennsylvania jury returned a $10 million verdict for a man who was misdiagnosed with Amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig’s disease. The man, who was mistakenly told he had 18 months to live, actually suffered from a spinal cord compression. The misdiagnosis caused the spinal cord condition to go untreated for several years, leaving the man’s legs permanently paralyzed.
In New York in 2014, a jury awarded a 34-year-old woman $62 million to compensate her for the loss of both legs following a botched surgery to remove an ectopic pregnancy. According to the woman, the surgeon punctured her intestine during the surgery, leading to gangrene and blood poisoning that required 73 days in intensive care and eventual amputation of her legs in order to stem the infections.
In 2012, a jury in Maryland awarded $55 million to the parents of a child left permanently disabled after hospital personnel waited over two hours to perform an emergency cesarian section surgery on the child’s mother. The family claimed that the child’s severe injuries — cerebral palsy and seizure disorder — were caused by a loss of oxygen to the brain while waiting for the surgery.
An Illinois jury awarded $2 million in 2014 to a man whose surgeon removed his only remaining testicle during a hernia operation. The man contended that there was no medical reason to remove the testicle, which left him and his wife unable to have children.
Proving Medical Malpractice in Texas
Medical malpractice is not uncommon. It happens frequently and more than we appreciate. However, not all adverse medical outcomes amount to medical malpractice.
What does a strong medical malpractice case look like? Texas law requires persons injured by substandard medical care to prove:
- the existence of doctor-patient relationship or some other duty of care;
- the doctor or hospital was “negligent,” meaning that the care provided was below the prevailing standard of care within the medical profession; and
- the patient suffered injury as a result of negligent medical care.
Types of Medical Malpractice
Medical negligence falls into three broad categories of error:
- Failure to Diagnose. This form of malpractice occurs when a doctor fails to diagnose an existing medical condition, or diagnoses a medical condition that the patient actually does not have.
- Negligent Treatment. In these kinds of cases, the doctor rendered negligent treatment to the patient. In other words, the doctor made a mistake that a reasonably competent doctor would not have made. Proving that medical malpractice occurred in an emergency room is more difficult. For those cases, the injured patient must prove that emergency room personnel were not merely careless but that they were “willful and wanton” in their disregard of the patient’s medical needs.
- Failure to Warn. The last category of medical malpractice is failure to warn the patient of known risks. Most courses of treatment — whether it is surgery, the administration of drugs, or some other treatment — carry risks. If a doctor fails to obtain the patient’s consent to a course of treatment after warning the patient of known risks, then the doctor has committed malpractice if that known risk occurs.
According to a 2013 study published in the BMJ Open medical journal, “failure to diagnose” was the largest source of malpractice claims, accounting for 26 to 63 percent of all malpractice claims brought against primary care physicians. Researchers found that the most common patient outcome from “failure to diagnose” errors was death, which occurred 15 to 48 percent of outcomes recorded in malpractice claims.
Medical Malpractice Damages in Texas: How Much?
The ability of persons injured by medical malpractice to obtain full compensation for their losses is a controversial topic in Texas. Unlike most states, Texas law severely restricts the amount of compensation that juries can award to medical malpractice victims.
In a typical medical malpractice case, an injured patient may obtain compensation for:
- loss of past income and future earning capacity;
- past and future medical expenses;
- any other financial losses; and
- non-economic losses, also known as “pain and suffering.
The Texas Medical Malpractice and Tort Reform Act severely restricts that amount of damages that medical malpractice victims can obtain for pain and suffering. Non-economic damages against all doctors and health care providers capped at $250,000. Non-economic damages against health care facilities capped at $500,000.
For cases in which both the treating physicians and the health care facility were negligent, the maximum recovery for pain and suffering is $250,000 – $750,000.
|Non-Economic Damage Caps in Texas Medical Malpractice Actions|
|Provider Cap (Total Across All Providers)||$250,000|
|Facility Cap (Up to 2 Facilities)||$250,000|
For example, if medical malpractice victim proves $6 million in damages for pain and suffering, and a jury wants to award $6 million, Texas law forces the judge to cut that award back to $750,000.
Many people believe that limits on the amount of money a jury can award for damages in a medical malpractice case are unconstitutional. The Florida Supreme Court held just that in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), striking down as unconstitutional Florida’s $1 million cap on noneconomic damage awards in wrongful death cases. Subsequent appellate court rulings in Florida have extended McCall to cover all medical malpractice cases.
State legislative caps on noneconomic damages have been ruled unconstitutional in Alabama, Arkansas, Georgia, Illinois, Louisiana, Missouri, New Hampshire, Ohio, Oregon, South Carolina, South Dakota, Washington, and Wisconsin.
Texas malpractice victims are not so fortunate. In 2003, Texas voters approved Proposition 12, a measure that amended the Texas Constitution to permit the legislature to create caps on non-economic damages in medical malpractice cases as well as act other kind of civil litigation. As a result, Texas’ caps on medical malpractice awards are protected from claims that they violate the Texas Constitution.
Texas law presents several other hurdles for persons injured by medical malpractice. Claims may not be brought more than two years from the date of the incident or completion of treatment, and an expert report must be submitted within 120 days after a defendant’s answer is filed.
The Aftermath of Damage Caps
Ten years after Texas lawmakers instituted tort reforms, capping non-economic damages in medical malpractice cases, both the number of lawsuits filed and the dollar amounts paid out plummeted.
Data from the Texas Department of Insurance indicates that medical malpractice claims, including lawsuits, resolved fell by nearly two-thirds between 2003 and 2011. The average dollar amounts paid to victims declined 22 percent to $199,000 per claim.
Statistics compiled from data in the National Practitioner Data Bank indicate that Texas is at or near the bottom in medical malpractice cases brought and in the size of claims. In 2014, Texas ranked 29th among states for the number of medical malpractice claims per capita (0.56). During that same year, Texas malpractice insurers paid out $3.20 per capita, putting Texas 49th among all states in dollar amount of malpractice claims paid.
Proponent of caps on non-economic damages sold the argument that Texas would attract more doctors if medical malpractice costs were lower. While it is debatable whether or not Texas has gained more doctors as a result, it is clear beyond argument that damage caps have made it much less expensive to commit medical malpractice.
Putting it All Together: Implications for Texas Residents
Medical malpractice is a serious health problem in the United States. The problem is getting worse not better with medical malpractice now representing the third-leading cause of death in the United States. Here in Texas, complaints filed with the Texas Medical Board are near an all-time high.
And yet … in Texas the number of medical malpractice claims is falling. In Texas medical malpractice insurers pay less compensation to malpractice victims than in almost every other state in the country.
The cost of medical malpractice in Texas is cheap. Medical malpractice in Texas is cheap because the doctors and hospitals their insurance companies are not legally required to compensate malpractice victims for all of their losses. Pain and suffering are real injuries and in most states juries compensate victims in amounts well above the Texas damage caps.
Committing medical malpractice is cheap in Texas for another reason. Many medical malpractice victims are unable to hire legal counsel because the recovery they can obtain is too small to attract the services of competent legal counsel. Remember: damages in a medical malpractice case are composed of “income + medical costs + (capped) non-economic damages.”
In many cases, the indigent, the young and the elderly will not have suffered significant income losses or incurred large enough medical expenses to make litigation against the doctors and insurance companies worthwhile. As a result, losses due to numerous cases of egregious medical malpractice never find their way to the courthouse and are never compensated.
We Have the Experience You Need to Fight Back!
Even with all of these challenges, the attorneys at Hastings Law Firm have obtained millions in compensation for Texas residents injured by negligent medical professionals. If someone in your family has suffered a serious injury or death following a medical procedure, you owe it to them to find out who is responsible and whether those injuries could have been avoided. Tommy Hastings and his team will thoroughly investigate your situation at no cost to you and work tirelessly to turn the system in your favor by any lawful means.
If Your or a Loved One Was Injured Call Our Firm Today!