Why Can’t an Attorney Take My Medical Malpractice Case?

If you believe you may have a legal claim resulting from a medical injury or death, it is important to understand how various laws work with regards to medical malpractice cases.

What Qualifies as Medical Malpractice?

Medical mistakes do happen but not all such accidents are considered malpractice. Despite an adverse outcome or even death, the law requires that anyone injured in a medical setting must be able to prove the following:

• That a doctor-patient relationship existed
• That a medical professional or hospital was “negligent” in the care they provided or that a sub-standard level of care was evident
• That the patient suffered damages, also called “quantifiable harm”, as a result of the negligent medical care

While we try to help everyone we can, the simple truth is that until the laws are changed, only a small percentage of people who contact us will have a viable case.

Can I Sue for Unsuccessful Treatment or Surgery?

Medical professionals are required to act quickly and competently without doing unnecessary harm to a patient, but they are not required to be perfect.

Unsuccessful results from a treatment or surgery alone are not grounds for a medical malpractice case.  These are called “bad outcome” cases and a bad outcome by itself cannot be the grounds for a case.  To bring a case, you must have a bad outcome AND the healthcare provider must be negligent.  

Is a Misdiagnosis Considered Medical Malpractice?

There is a difference between a wrong diagnosis and a misdiagnosis.  A physician may have a working diagnosis while treating a patient that turns out to be wrong in the end.  This by itself, is not considered negligence. 

A misdiagnosis occurs when the physician fails to order the proper tests, ask the right information, and ignores a viable diagnosis.  The standard is whether a similarly-trained health care professional would have made the diagnosis under the same circumstances.  If so, and the patient suffered harm as a result, then there is a potential case for malpractice due to misdiagnosis.  

Top Reasons Why Our Medical Malpractice Attorneys Decline Cases 

The following situations are the most common reasons why we are unable to accept a medical malpractice claim.

The Applicable Statute of Limitations Has or is About to Expire

Medical malpractice is considered a “personal injury” and is subject to a statute of limitations.  Typically, a a patient must file their lawsuit within two years from the date the malpractice occurred.  Different states have different ways in which they calculate the statute of limitations.  We assess each case by the laws applicable to that case.  However, we typically will not be able to take a case if the statute of limitations expires within the next 180 days because it takes a considerable amount of time to investigate a potential case.  

Injuries Are Insufficient to Support Litigation

Medical malpractice cases are very difficult and expensive to litigate.   These cases require costly expert review and testimony from medical professionals and many hours of deposition. Those types of expenses can be tens of thousands, if not hundreds of thousands, of dollars.

We are often contacted by clients that have a legitimate cause for concern about care they received.  However, the damages that are recoverable for that injury would not financially support a case.  It is unethical for an attorney to take a case knowing that the expense would exceed the client’s recovery.  Therefore, attorneys simply cannot accept cases that do not involve serious and permanent injuries. 

Cases Without Any Wrongful Death Beneficiaries

To bring a wrongful death case, there must be a parent, spouse or child of the deceased. Step-children, siblings, and other family members are not entitled to bring a lawsuit.

Cases Without Any Physical Injuries

The law requires a physical injury in order to bring a lawsuit. There is no case if the negligence “almost” harmed someone, or “could have” killed or harmed them.

Cases With The Same Outcome Either Way

Patients must prove they would not have had the injury or damage, “but for” the negligence of the medical provider. You must be able to prove “more likely than not” the outcome would have been different in a significant way. It must be probable, not just possible.

Texas Specific Medical Malpractice Laws

Emergency Room Cases in Texas

Texas has one of the most restrictive, unfair, and anti-patient emergency room laws in the country. Under Texas law, an emergency room or emergency room provider cannot be sued for negligence. They may only be sued if there is “willful and wanton” behavior. Basically, the provider must know their actions are about to cause serious injury or death, but proceed anyhow knowing what will happen. It is virtually impossible to prove a case under this standard.

Fetal Death or Miscarriage Claims in Texas

Texas law does not recognize a cause of action for the wrongful death of a baby unless it is born alive. If a medical provider’s negligence leads to the death before the child is born, then there is no basis for a lawsuit under Texas law. We feel this is unfair, cruel, and goes against the basic values of human life, but it is still the law in Texas.