Why Won’t an Attorney Take My Texas 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 the laws in Texas work with regards to medical malpractice cases.

Texas is not only one of the hardest states to pursue medical negligence claims, they also have some of the lowest caps on damages. While we try to help everyone we can, the simple truth is that until Texas laws are changed, only a small percentage of people who contact us will have a viable case.

What Qualifies as Medical Malpractice Under Texas Laws?

Medical mistakes do happen but not all such accidents are considered malpractice. Despite an adverse outcome or even death, Texas 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

Can I Sue for Unsuccessful Treatment or Surgery?

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

Unsuccessful results from a treatment or surgery alone are not grounds for a medical malpractice case; however, if poor results were due to negligence then malpractice may have occurred.

Is a Misdiagnosis Considered Medical Malpractice?

There’s a distinction between an incorrect diagnosis and a misdiagnosis. Sometimes, a doctor may initially diagnose a patient based on the available information, only to discover later that it was not accurate. This alone doesn’t imply negligence, since the doctor was working from the information available.

Misdiagnosis refers to situations where a doctor doesn’t order the necessary tests, neglects to gather relevant information, or overlooks a potential diagnosis. The key criterion is whether another professional with similar training would have correctly diagnosed the patient in the same situation. If the patient was harmed due to the misdiagnosis and another professional would have diagnosed correctly, it might constitute medical malpractice.

Top Reasons Why We Decline Medical Cases in Texas

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

Texas Statute of Limitations Has or is About to Expire

Medical malpractice is considered a “personal injury” and is subject to a statute of limitations. Under Texas law a patient for medical malpractice must file their lawsuit within two years from the date the malpractice occurred. If an exact data cannot be determined, the limit will be two years from the end of treatment or hospitalization.

Injuries Are Too Minor to Warrant Litigation

Texas law has made medical malpractice cases very difficult and expensive to litigate and the caps on compensation mean that it can often cost more to pursue a case than you can receive in damages. These cases also require costly expert review and testimony from medical professionals and many hours of deposition. Since personal injury attorneys are paid on a contingency fee basis, they simply cannot accept med mal cases that do not involve serious injuries.

Emergency Room Cases

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.

COVID Related Cases

We are currently unable to accept cases involving a COVID diagnosis that leads to serious injury or death. A patient must prove that a medical provider violated a standard of care to bring a medical malpractice lawsuit. There are no currently accepted standards of care for COVID. Therefore, at this time we are not accepting those cases involving COVID.

Fetal Death or Miscarriage Claims

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.

Cases Without Any Wrongful Death Beneficiaries

To bring a wrongful death case in Texas, 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

Texas 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

Texas law requires that the patient 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.