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The Law of Medical Malpractice in Texas:

A Survey of Basic Considerations

Texas medical malpractice law is among the most complex legal practice areas. The statutes, case law, and regulations governing medical malpractice law in Texas are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Texas exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Texas by both members of the general public as well as practicing lawyers. This widespread lack of understand is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.
This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Texas medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both non-lawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in Texas. After reading this Section, the reader will have a firm understanding of the basic issues for consideration in a medical malpractice case. Sections II through XI examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Texas.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in Texas?
-Required Elements of a Medical Malpractice Claim in Texas
-Burden and Standard of Proof

II. Filing Deadlines for Medical Malpractice Claims
-Statute of Limitations
-Introduction
-Statute of Limitations in Texas
-Special Provision for Minors
-Exceptions to Statute of Limitations

III. Statute of Repose—Absolute Bar to Recovery
-Introduction
-Texas’ Statute of Repose

IV. Presuit Requirements for Medical Malpractice Cases
-Presuit Notice of Health Care Claim
-Presuit Authorization Form for Release of Protected Health Information
-Abatement Proceedings
-Ex Parte Communications
-Tolling of Statute of Limitations
-Deficient Authorization Form and Tolling of Statute of Limitations

V. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in Texas
-Notice and Limitations on Damages
-Good Samaritan Statute
-Introduction
-Good Samaritan Statute in Texas
-Emergency Medical Care
-Additional Immunities and Limitations on Liability

VI. Elements of a Medical Malpractice Petition

VII. Expert Medical Witnesses
-Who Qualifies as an Expert Medical Witness for Standard of Care Testimony
-Physician as Defendant
-Challenging Qualifications of Physicians
-Health Care Provider as Defendant
-Challenging Qualifications of Health Care Providers
-Admissibility of Expert Medical Witness Testimony on Causation
-Lay Testimony on Causation

VIII. Expert Report Requirement
-Introduction
-Challenging Sufficiency of Report: Deficient Report Versus No Report

IX. Modified Comparative Negligence

X. Statutory Limitations on Damages
-Introduction
-Non-economic Damages Against Healthcare Providers for Personal Injury
-Non-economic Damages Against Healthcare Institutions for Personal Injury
-All Damages Against Healthcare Providers for Wrongful Death
-Doubts About the Constitutionality of Limitations on Economic Damages
-Mandatory Jury Instructions
-Limitation on Medical Expenses

XI. Apologies and Sympathetic Gestures

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Texas?

Medical malpractice is a specific type of professional negligence by a healthcare provider.  In the medical malpractice context, negligence means that the healthcare provider breached the applicable accepted standard of medical care.

Medical malpractice claims in Texas are governed principally by Chapter 74. Medical Liability of the Texas Civil Practice and Remedies Code (“CPR”).  Texas law refers to a medical malpractice claim as a ‘health care liability claim,’ which it defines as “a cause of action against a health care provider[1] or physician[2] for treatment, lack of treatment, or other claimed departure from standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant….” CPR §74.001(a)(13).

Proximate cause is a legal concept that refers to the cause recognized by law as the primary legal cause of the injury.  Proximate cause has been described in Texas courts this way:

[T]hat cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred; and in order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that event, or some similar event, might reasonably result therefrom….City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex. 1987).

The Texas Supreme Court noted that the two elements of proximate cause are (1) cause in fact and (2) foresee-ability.  Id.  Cause in fact means that the negligence was a “substantial factor in bringing about the injury and without which no harm would have occurred.”  McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex. 1980).  Foresee-ability means that the defendant, “as a person of ordinary intelligence, would have anticipated the danger that his negligent act created for others.”  Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 549-50 (Tex. 1985).

Required Elements of a Medical Malpractice Claim in Texas

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Texas law.  Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation.  While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

Texas medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury.  The negligence must be the actual cause in fact of the patient’s injury.  The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior.  That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

There are four basic elements of a compensable medical malpractice claim in Texas that must all be proven by the plaintiff.Denton Regional Medical Center v. LaCroix, 947 S.W.2d 941, 950 (Tex. App. – Fort Worth 1997).

  1. Duty—the defendant is a healthcare provider who owed the injured patient a legal duty of care;
  1. Breach—the healthcare provider’s actions deviated from or fell below the required standard of care thereby breaching the legal duty of care owed;
  1. Causation—the healthcare provider’s breach of the required standard of care proximately caused or contributed to causing injury to the patient; and
  1. Damages—the injured patient suffered damages because of the injuries.

In the medical malpractice context, negligence means that the healthcare provider breached the applicable accepted standard of medical care.  Under Texas law, the accepted standard of medical care is to act as a healthcare provider of reasonable and ordinary prudence would act under the same or similar circumstances.  Chambers v. Conway, 883 S.W.2d 156, 158 (Tex. 1993).  A healthcare provider’s failure to act accordingly constitutes a breach of duty.  Id.The accepted standard of medical care for a specialist is that degree of skill ordinarily exercised in similar circumstances by similar specialists in the field.  James v. Brown, 637 S.W.2d 914, 918 (Tex. 1982).  Specialists are expected to possess and exercise a greater degree of skill and learning than general practitioners.  Id.

Note that the terms ‘medical malpractice’ and ‘medical negligence’ are often used interchangeably as synonyms.  Technically, that is not accurate.  Medical negligence is only one of the four necessary elements of a medical malpractice claim, so it cannot be the equivalent of medical malpractice by itself.  When the additional elements of legal duty, causation, and damages are combined with medical negligence, then that resultant combination of elements gives rise to medical malpractice.

Burden and Standard of Proof

The plaintiff has the burden of proof to establish that a breach occurred and that it proximately caused his or her injury.Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988).  The causal connection between the defendant’s negligence and the plaintiff’s injury must be proven by competent expert medical testimony.  Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex. 1965).  The Texas Supreme Court announced that in medical malpractice cases that involve “the highly specialized art of treating disease, the court and jury must be dependent on expert testimony.  There can be no other guide….”  Id.

On the issue of proximate cause for the injury, “the general rule is ‘that proof of causation must be beyond a showing of a possibility that the injuries arose from the defendant’s negligence or lack of skill….’”  Id.   The standard of proof for establishing the defendant’s breach of duty was the proximate cause of the plaintiff’s injury is that of “reasonable medical probability.”Kramer v. Lewisville Memorial Hospital, 858 S.W.2d 397, 400 (Tex. 1993). Reasonable medical probability requires more than “mere possibility, speculation, and surmise.”  Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199, 205 (Tex. 1980). Furthermore, the words ‘reasonable probability’ are not magic words that constitute evidence of causation simply by their use or utterance, even by expert medical witnesses. Id.Reasonable medical probability means that it is “more likely than not” that the negligence caused the ultimate condition or harm.  Lenger v. Physicians’ General Hospital, Inc., 455 S.W.2d 703, 707 (Tex. 1970).

II. Filing Deadlines for Medical Malpractice Claims

Statute of Limitations

Introduction

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations in Texas

The statute of limitations for filing a medical malpractice lawsuit in Texas is set forth in CPR §74.251(a).  It states that medical malpractice cases must be filed within two years from (1) the date the malpractice occurred, (2) the date of the last relevant course of treatment, or (3) the last date of the relevant hospitalization.

Although it may appear from the statute’s language that a plaintiff may choose which triggering event to utilize for the starting of the limitations period, that is not true.  The Texas Supreme Court has stated that a plaintiff may not choose the date most favorable to him or her.Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2002) (discussing predecessor statute to CPR §74.251(a) which had identical language regarding the three triggering events). When the date of the claimed negligence is clear, then that is the date that must be used.Id.When the exact date of the alleged negligence cannot be ascertained, only then does the focus shift to the course of treatment and hospitalization analysis.Id.

Special Provision for Minors

The statute of limitations governing medical malpractice claims contains a special provision for minors.  CPR §74.251(a) states “minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim.”  However, the constitutionally of that provision which starts the limitations period running at 12 years of age is in serious doubt in light of a number of court cases.

The Texas Supreme Court held that the predecessor toCPR §74.251(a) was unconstitutional “when applied to a minor because it” violated the Open Court Provision of the Texas Constitution.  Weiner v. Wasson, 900 S.W.2d 316, 319 (Tex. 1995).  The Court further held that the standard two-year statute of limitations begins to run when a minor attains the age of eighteen.  Id. at 321.  The Supreme Court’s holding in Weiner has been applied to CPR §74.251(a) with the result that its provision regarding minors was likewise held to be unconstitutional.  Adams v. Gottwald, 179 S.W.3d 101, 103-104 (Tex. App. –  San Antonio 2005).

Exceptions to Statute of Limitations

In general, there are several commonly recognized legal doctrines established either by statute or judicially created that operate to toll the statute of limitations in narrowly defined scenarios.  The primary ones are the discovery rule, fraud, intentional concealment, and presence of a foreign object in patient’s body.  The discovery rule tolls the statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Fraud and intentional concealment regarding the negligence or injury by the defendant likewise toll the statute of limitations for a set period of time or until the occurrence of a specified event.The foreign object exception tolls the statute of limitations until the object is discovered or should have been discovered by the plaintiff.

In most states where these exceptions are recognized and available, it is a fairly routine matter for plaintiffs to invoke them and toll the applicable statute of limitations. That is not the case in Texas.  None of these exceptions are codified in the Texas Statutes, and courts in the state do not readily permit plaintiffs to assert them to toll the state’s medical malpractice limitations period.  In Texas, any instance of an exception to the statute of limitations being granted is an extraordinary measure.  In the rare instances when it has been permitted, it is typically based upon the Open Courts Provision of the Texas Constitution.

Article I, §13 of the Texas Constitution declares: “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”The Texas Supreme Court has interpreted that to mean the Open Courts Provision “guarantees that persons bringing common-law claims will not unreasonably or arbitrarily be denied access to the courts.”  Shah, 67 S.W.3d at 841. Any statute that does so is an unconstitutional due course of law violation.  Id. at 842.  Consequently, the Open Courts Provision “protects a person from legislative acts that cut off a person’s right to sue before there is a reasonable opportunity to discover the wrong and bring suit.”  Id.

The Open Courts Provision is not a tolling provision, which generally defers accrual of a claim until the plaintiff knew or should have known the facts giving rise to a claim; instead, the Open Courts Provision “merely gives litigants a reasonable time to discover their injuries and file suit.”  Tenet Hospitals Ltd. v. Rivera, 445 S.W.3d 698, 703 (Tex. 2014).  A plaintiff is not permitted to rely on the Open Courts Provision if he or she “had a reasonable opportunity to discover the alleged wrong and bring suit before the limitations period expired.” Shah, 67 S.W.3d at 842. Courts must decide what constitutes a reasonable time frame.  Rivera, 445 S.W.3d at 703.

In practice, if the plaintiff asserts an Open Courts Provision challenge, he or she must present a factual issue establishing that he or she did not have a reasonable opportunity to be heard.  Id.This is an extremely difficult standard for plaintiffs to meet since they have the burden of demonstrating they did not have a reasonable opportunity to discover the alleged wrongdoing, but courts tend to favor interpreting the facts against permitting a claim to go forward that is otherwise time-barred.  As a practical matter, plaintiffs are advised not to rely on the Open Courts Provision in order to bring a medical malpractice lawsuit since that is an uphill battle.

An examination of the fact patterns that meet and do not meet the standards for successfully invoking the Open Courts Provision is well beyond the scope of this article.  However, for anyone interested in learning more about the topic, review the following line of cases:Tenet Hospitals Ltd. v. Rivera, 445 S.W.3d 698 (Tex. 2014); Walters v. Cleveland Regional Medical Center, 307 S.W.3d 292 (Tex. 2010);Yancy v. United Surgical Partners International, Inc., 236 S.W.3d 778 (Tex. 2007); Earle v. Ratliff, 998 S.W.2d 882 (Tex. 1999); Jennings v. Burgess, 917 S.W.2d 790 (Tex. 1996);Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995);and Neagle v. Nelson, 685 S.W. 11 (Tex. 1985).

[1]CPR §74.001(a)(12) provides the complete list of legal and natural persons who are classified as health care providers for purposes of Texas’ medical malpractice-related statutes.

[2]CPR §74.001(a)(23) defines the term ‘physician’ for purposes of Texas’ medical malpractice-related statutes.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations.  Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed.  If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them.  The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes.  A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued.  In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury.  The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued.  Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists.  A statute of repose serves as an absolute bar to recovery.  Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations.  The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose.  In fact, even many practicing lawyers do not fully appreciate the critical differences between the two.  This is likely due to the fact that statutes of repose are relatively rare.  Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Texas’ Statute of Repose

Medical malpractice claims in Texas are subject to statute of repose.  It is explicitly contained in CPR §74.251(b) and reads as follows:

A claimant must bring a health care liability claim not later than 10 years after the date of the act or omission that gives rise to the claim. This subsection is intended as a statute of repose so that all claims must be brought within 10 years or they are time barred.

The ten-year period is an absolute bar, and state courts are not permitted to make any exceptions.  The Texas Supreme Court noted that “a statute of repose is not subject to judicially crafted rules of tolling or deferral.”  Methodist Healthcare System of San Antonio, Ltd. v. Rankin, 307 S.W.3d 283, 286 (Tex. 2010).  The Court added that “the key purpose of a repose statute is to eliminate uncertainties under the related statute of limitations and to create a final deadline for filing suit that is not subject to any exceptions.”  Id.It observed “to hold that a statute of repose must yield to the plaintiff’s inability to discover her injury would treat a statute of repose like a statute of limitations, and would effectively repeal this and all other statutes of repose.”  Id. at 290.  Finally, the Supreme Court concluded: “Section 74.251(b)’s grant of absolute protection against indefinite potential liability does not violate the Texas Constitution. The Open Courts provision confers a constitutional right of access but not an everlasting one.”  Id. at 292.

IV. Presuit Requirements for Medical Malpractice Cases

Presuit Notice of Health Care Claim

Prior to filing a medical malpractice lawsuit in court, plaintiffs are required to provide a written Notice of Health Care Claim to each defendant at least 60 days prior to filing suit.  CPR §74.051(a).  The statute is clear that the Notice must be communicated by “certified mail, return receipt requested, to each physician and health care provider against whom the claim is being made….”  The Notice of Health Care Claim is a mandatory condition precedent to filing a medical malpractice claim in a Texas court, and failure to do so within the applicable statute of limitations bars the claim.  Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987) (interpreting notice of claim provision of CPR §74.051’s predecessor statute).

Providing the Notice of Health Care Claim tolls the applicable statute of limitations for 75 days.  CPR §74.051(c).  The limitations period is tolled with respect to “all parties and potential parties.”  Id.The 75-day tolling period allows plaintiffs to provide the statutory Notice and still observe the 60-day waiting period to file their lawsuit in court even if they waited until the last couple of days of the limitations period to provide the Notice of Health Care Claim.

Presuit Authorization Form for Release of Protected Health Information

In addition to the Notice of Health Care Claim, CPR §74.051(a) mandates that the Authorization Form for Release of Protected Health Information contained in CPR §74.052 be sent to each defendant together with the Notice.  The Authorization Form grants defendants the right to access the plaintiff’s protected health information for the purpose of evaluating the claim and, if appropriate, helping with settlement negotiations.  Paragraph B.2. of the Authorization Form requires the plaintiff to authorize all doctors and health care providers who treated him or her within five years prior to the date of the alleged negligence to release protected health information to the defendants.

Abatement of Proceedings

In the event the plaintiff fails to provide a compliant Authorization Form to the defendants, CPR §74.052 requires that the proceedings shall be abated “until 60 days following receipt by the physician or health care provider of the required authorization.”

Ex Parte Communications

Note that the statutory Authorization Form provides for ex parte communications between defendants’ lawyers and the plaintiff’s non-party healthcare providers.  Paragraph B of the Authorization Form states “[t]he health information to be obtained, used, or disclosed extends to and includes the verbal as well as the written….”

This authorization of ex parte communications has been attacked on the ground that some defense lawyers use ex parte communications with non-party healthcare providers to obtain information that is not contained in either the plaintiff’s claim or medical records.The Texas Supreme Court rejected that argument and held that such ex parte communications are permissible and that non-party healthcare providers are authorized to verbally convey relevant information to defendants’ lawyers.  In re Collins, 286 S.W.3d 911, 918 (Tex. 2009).

Tolling of Statute of Limitations

Up until 2011, the Texas Courts of Appeals were split on whether both the Notice of Health Care Claim and the Authorization Form were required for tolling of the statute of limitations.  The tolling provision appears only in the Notice statute, so some argued that the statute of limitations is tolled upon compliance with just the Notice requirement.  While both Notice and the Authorization Form are required by statute prior to filing suit, only the Notice requirement is linked with the tolling provision in the statutes.  Others argued that the two statutes must be read together and that the tolling provision is triggered only when both statutory requirements are satisfied.

In 2011, the Texas Supreme Court settled the dispute by declaring that both the Notice of Health Care Claim and the Authorization Form must be provided to defendants in order to toll the statute of limitations.  Carreras v. Marroquin, 339 S.W.3d 68, 74 (Tex. 2011).  The Court based its decision on three principal factors, viz., plain language of the statutes, statutory history, and public policy considerations.Id. at 72-73.

First, both CPR §§74.051 and 74.052 state that the Notice “must be accompanied by” an Authorization Form.  This language clearly creates a mandatory condition precedent for triggering the tolling provision.  Carreras, 339 S.W.3d at 72.  The statutes are linked and must be read together.

Next, the Court noted that the predecessor statute to CPR §§74.051 and 74.052 only required written notice to toll the statute of limitations, and authorization was treated separately.  Id.In contrast, CPR §§74.051 and 74.052 combine notice and authorization requirements, so both are now required for tolling.

Finally, the Court pointed out that the legislative purpose of the Notice provision is to encourage presuit negotiations.  Id. at 73.  Access to the plaintiff’s medical records for examination by defendants is critical to that purpose, but to obtain those records, the plaintiff must first provide a duly executed Authorization Form to defendants.  Id.  In fact, the Court noted that “allowing the advantages of tolling … without provision of an authorization form would undermine the Legislature’s intention to provide a method for quick, efficient settlement and to identify non-meritorious claims early.”  Id.

Deficient Authorization Form and Tolling of Statute of Limitations

In Carreras, the Texas Supreme Court resolved the issue of whether both Notice and the Authorization Form are required to toll the statute of limitations.  Shortly afterwards, defendants began focusingtheir attacks on the issue of defective Authorization Forms.  This issue existed prior to Carreras, but it gained momentum after the Supreme Court’s decision in the case since the stakes had been raised.  After Carreras, successfully attacking the validity of an Authorization Form could result in plaintiff’s claim being time-barred.

The Authorization Form is fairlyintricate and requires furnishing theidentity of all doctors and healthcare practitioners who treated the plaintiff in the five years prior to the alleged negligence.  As such, it is not uncommon for a plaintiff’s Authorization Form to be technically deficient in some manner.

The question is whether the statute of limitations is tolled when a proper Notice of Health Care Claimis provided to defendants but is accompanied by a deficient Authorization Form.Common deficiencies include not using, for whatever reason and seems inexplicable, the exact language contained in the statute and failing to list all doctors and healthcare providers as required.  Defendants argue that a deficient Authorization Form is tantamount to no Authorization Form, and thus the statute of limitations is not tolled since both it and Notice are required under the Supreme Court’s Carreras decision.

Even prior to the Carreras case, at least one Court of Appeals rejected the argument that any deficiency with respect to an Authorization Form invalidates it for purposes of tolling the statute of limitations.  The El Paso Court of Appeals concluded that an improperly filled-out Authorization Form (deficient) that still provides fair warning of a claim to defendants and an opportunity to abate the proceedings for evaluation of the claim and presuit negotiations is sufficient to toll the statute of limitations.  Rabatin v. Kidd, 281 S.W.3d 558, 562 (Tex. App. – El Paso 2008).  That is, substantial compliance is sufficient.

In Rabatin, the plaintiff provided an Authorization Form that excluded all records of the doctors who were listed as having treated the decedent in the five years prior to the alleged negligence, failed to list dates of treatment, and failed to indicate who could access the medical records. The Authorization Form was clearly deficient.  Nevertheless, lawyers for at least one of the defendants were able to obtain the decedent’s medical records using the deficient Authorization Form.  The Court held that the deficient Authorization Form was sufficient to toll the statute of limitations.  Id.  Although it was statutorily noncompliant, it along with the Notice of Health Care Claim still provided fair warning to the defendants of the claim and provided the opportunity to abate the proceedings for evaluation of the claim and negotiations, just as a completely compliant Authorization Form would have.Id.at 562.

On the other hand, there is a line of cases that concludesfailure to provide the names of the doctors who treated the injured party in the five years prior to the alleged negligence does not constitute substantial compliance with the Authorization Form requirements, and the statute of limitation is not tolled by that particular deficiency.  At least two Texas Courts of Appeals have addressed this specific issue and have denied tolling of the statute of limitations.  Borowski v. Ayers, No. 10-15-00239-CV (Tex. App. – Waco 2016) andMitchell v. Methodist Hospital, 376 S.W.3d 833 (Tex. App. – Houston 2012).  The Court in Borowskinoted that an Authorization Form that fails “to identify from whom or from where to obtain the protected health information seriously interferes with the statutory design to enhance pre-suit investigation, negotiation, and settlement.”  Borowskiat 22.

V. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Texas

Under Texas common law, governmental entities had complete sovereign immunity.  State v. Snyder, 18 S.W. 106, 109 (Tex. 1886).  There are two components to sovereign immunity as it exists under Texas common law: (1) the state is immune from being sued without its consent and (2) the state has immunity from liability even if the state has consented to being sued.  Dillard v. Austin Independent School District, 806 S.W.2d 589, 592 (Tex. App. – Austin 1991).  To sue Texas or its entities at common law, the state must have waived both immunity to suit as well as immunity from liability.  City of Houston v. Arney, 680 S.W.2d 867 (Tex. App. – Houston 1984).

In 1969, the Legislature enacted the Texas Tort Claims Act which permits governmental units (the statute uses this term) such as hospitals and hospital authorities to be sued for specific claims.  The Claims Act is contained in Chapter 101 of the Texas Civil Practice and Remedies Code.  Specifically, sovereign immunity is partially waived and abolished to the extent permitted in the Claims Act by CPR §101.025.

CPR §101.001(3)defines the term ‘governmental unit,’ and governmental unit liability is established byCPR §101.021, which reads, in pertinent part, as follows.

A governmental unit in the state is liable for:

  1. personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Despite the partial waiver of sovereign immunity, it is tricky and difficult to sue a governmental unit for medical malpractice in Texas.  In the context of medical malpractice claims, the waiver of sovereign immunity is quite limited.  In order to sue a governmental unit for medical malpractice, the plaintiff must show that the personal injury or death was the result of a “condition or use of tangible personal” property.There are three preliminary issues that must be addressed prior to filing suit against a governmental unit.  First, was personal property involved.  Second, if so, was it used or misused.  Third, was the person who used or misused the personal property an employee of a governmental unit.

Many medical malpractice claims simply fail to meet this narrow test on its face.  This is particularly true in light of the Texas Supreme Court’s holding that “information, which may or may not be recorded in a patient’s medical records, does not constitute tangible personal property….”  University of Texas Medical Branch v. York, 871 S.W.2d 175, 179 (Tex. 1994).  Accordingly, any claim that is based upon an allegation involving the use or misuse of patient’s medical information cannot be brought against a governmental unit.  Similarly, many malpractice claims are based on an alleged negligent decision, but a decision is not tangible personal property.  As such, those claims cannot be brought against a governmental unit either.

In 2011, it became even more difficult to recover damages against the government or government employee.  The Texas Supreme Court decided a case that year which effectively makes it impossible to sue a government employee for acts performed within the scope of his or her official duties.  Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011).CPR §101.106(f) provides that any suit filed against an employee of a governmental unit that could have been brought against the governmental unit under the Claims Act is considered to be against the employee in his or her official capacity only, and upon a motion by the employee, the suit shall be dismissed.

In Franka, the Court interpreted “could have been brought under” the Claims Act to mean “any tort claim against the government is brought ‘under’ the Act for purposes of section 101.106 even if the Act does not waive immunity.”  Franka, 332 S.W.3d at 375.Consequently, it is even more difficult than ever to file a medical malpractice claim based on injuries suffered at a government hospital or other healthcare facility. Government employees acting within the scope of their duties are now effectively immune from suit, and due to the very narrow waiver of sovereign immunity, it is relatively rare to satisfy the requirements for bringing a medical malpractice suit against a hospital and other healthcare facilities under the Claims Act.  Many potential medical malpractice claims involve patient records or decision-making, but neither constitutes tangible personal property, meaning sovereign immunity has not been waived for those types of claims.

Notice and Limitations on Damages

A plaintiff must provide written notice of a claim within six months of the date of the incident giving rise to the claim.  CPR §101.101(a).  The notice must reasonably describe (1) the damage or injury claimed, (2) the time and place of the incident, and (3) the incident.  CPR §101.101(b).  Failure to comply with the notice requirement will result in the case being dismissed.  However, if the governmental unit has actual notice of the injury or death, then there is no requirement for formal written notice to be provided.  CPR §101.101(c).  The Texas Supreme Court held that actual notice to a governmental unit requires notice of (1) a death, injury, or property damage, (2) the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage, and (3) the identity of the parties involved.  Cathey v. Boothe, 900 S.W.2d 339, 341 (Tex. 1995). Also, some cities have shorter notice periods, so potential plaintiffs must check with the city in question to determine if there are any special filing or procedural requirements for initiating a claim against the city.

The Texas Tort Claims Act imposes various limitations on damages in cases against governmental units.  Liability of the state government is limited to a maximum of $250,000 for each person and $500,000 for each single occurrence for bodily injury or death.  CPR §101.023(a).  Liability of a local governmental unit is limited to a maximum of $100,000 for each person and $300,000 for each single occurrence for bodily injury or death.  CPR §101.023(b).  Liability of a municipality is limited to a maximum of $250,000 for each person and $500,000 for each single occurrence for bodily injury or death.  CPR §101.023(c).  Liability of an emergency service organization, as defined in CPR §101.001(1), is limited to a maximum of $100,000 for each person and $300,000 for each single occurrence for bodily injury or death.  CPR §101.023(d).  Finally, exemplary or punitive damages are not permitted in cases against governmental units under the Texas Tort Claims Act.  CRP §101.024.

Good Samaritan Statute

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Statute in Texas

Texas’ Good Samaritan Statute has been codified in CPR §74.151.  It immunizes individuals from civil damages for administering emergency care in good faith during an emergency situation.  CPR §74.151(a).  However, the immunity does not cover acts performed during the emergency that are “wilfully [used in statute] or wantonly negligent.”  Id.Texas courts generally equate wilful and wanton negligence with gross negligence.  Turner v. Franklin, 325 S.W.3d 771, 780 (Tex. App. – Dallas 2010).  The Texas Supreme Court uses a two-part test for determining gross negligence:

  1. viewed objectively from actor’s standpoint, the act or omission must depart from the ordinary standard of care to such an extent that it creates an extreme degree of risk of harming others and
  1. the actor must have actual subjective awareness of the risk involved and choose to proceed in conscious indifference to the rights, safety, or welfare of others.

Columbia Medical Center of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008).

The statute specifically covers emergency care administered by using an automated external defibrillator and administration of emergency care by volunteers who are first responders, as defined in Government Code §421.095Id.Under the statute, two situations are expressly excluded from the immunity otherwise afforded to would-be Good Samaritans:

  1. when the emergency care is provided for or in expectation of remuneration, but being legally entitled to remuneration for such care is not determinative of the individual’s expectation regarding remuneration and
  1. when the emergency care is provided by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform services for remuneration.

Emergency Medical Care

Emergency room health care professionals are shield from liability for civil damages by statute.Physicians and health care providers are granted immunity from civil damages for providing “emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department.”  CPR §74.153.  A claimant may only sue if he or she can show by a preponderance of the evidence that the physician or health care provider, “with wilful [used in statute] and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances.”  Id.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability to various healthcare practitioners, emergency personnel, and healthcare related entities scattered throughout the 28 separate Codes that comprise the Texas Statutes.  Below is a non-exhaustive list of some common ones that medical malpractice plaintiffs may encounter while pursuing their claim.

VI. Elements of a Medical Malpractice Petition

In order to commence a medical malpractice lawsuit in a Texasstate court, the plaintiff must file an initial pleading, referred to as a petition, with the appropriate court.  In general, the content and format of petitions are governed by the Texas Rules of Civil Procedure (“CP”).  However, individual rules governing pleadings vary widely among the state courts in Texas.  Each “administrative judicial region, district court, county court, county court at law, and probate court” has the authority to “make and amend local rules governing practice before such courts….”  CP Rule 3a. Local Rules.  Before commencing an action, practitioners are advised to consult the local rules of the court in which the petition will be filed.  Note that the initial pleading in Texas state courts is referred to as a petition, rather than a complaint as the initial pleading is referred to in many other state courts as well as federal courts.  CP Rule 22. Commenced by Petition.

Petitions must state the names of the parties and their residences, if known.  CP Rule 79. The Petition.  In addition, CP Rule 45. Definition and System requires petitions to:

  1. consist of a statement in plain and concise language of the plaintiff’s cause of action or the defendant’s grounds of defense. That an allegation be evidentiary or be of legal conclusion shall not be grounds for objection when fair notice to the opponent is given by the allegations as a whole;
  1. contain any other matter which may be required by any law or rule authorizing or regulating any particular action or defense; and
  1. be in writing, on paper measuring approximately 8½ inches by 11 inches, and signed by the party or his attorney, and either the signed original together with any verification or a copy of said original and copy of any such verification shall be filed with the court. The use of recycled paper is strongly encouraged.

According to CP Rule 47. Claims for Relief, a petition which sets forth a claim for relief must contain:

  1. a short statement of the cause of action sufficient to give fair notice of the claim involved;
  1. a statement that the damages sought are within the jurisdictional limits of the court;
  1. except in suits governed by the Family Code, a statement that the party seeks:
  • only monetary relief of $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees; or
  • monetary relief of $100,000 or less and non-monetary relief; or
  • monetary relief over $100,000 but not more than $200,000; or
  • monetary relief over $200,000 but not more than $1,000,000; or

(e) monetary relief over $1,000,000; and

  1. a demand for judgment for all the other relief to which the party deems himself entitled.

Although the general rule regarding the minimum necessary elements for a valid petition include identifying the dollar amount of the monetary relief sought with the specificity listed in the third element above, that does not apply to medical malpractice petitions.  CPR §74.002 states that in the event there is a conflict between any provision in Chapter 74 of the Texas Statutes governing medical malpractice claims and any other law, rule of procedure or evidence, or court rule Chapter 74 controls.CPR §74.053 provides that pleadings in medical malpractice lawsuits “shall not specify an amount of money claimed as damages.”  Accordingly, since there is an apparent conflict between CP Rule 47 and CPR §74.053, the latter controls and thus medical malpractice petitions must not specify a dollar amount being sought for monetary relief.

The petition must also contain a statement that the plaintiff has fully complied with CPR §§74.051 and 74.052, which address the presuit 60-day Notice of Health Care Claim and Authorization Form for Release of Protected Health Information, respectively.  CPR §74.051(b).  Evidence of compliance must be furnished as required by the trial court judge.  Id.

VII. Expert Medical Witnesses

Who Qualifies as an Expert Medical Witness for Standard of Care Testimony

Physician as Defendant

Most medical malpractice cases involve “the highly specialized art of treating disease,” so “the court and jury must be dependent on expert testimony.”  Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex. 1965).  In light of the essential role expert medical witnesses assume in medical malpractice cases, a critical question is who qualifies as an expert medical witness under Texas law.

The qualifications for serving as an expert medical witness against a physician defendant on the issue of whether the defendant departed from the accepted standard of medical care are set forth in CPR §74.401.  It provides that an individual may qualify if he or she is a physician who:

  1. is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose,
  1. 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
  1. is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.

In evaluating whether a physician is qualified on the basis of training and experience, courts are directed to consider whether, at the time the claim arose or when testimony is given, he or she (1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim and (2) is actively practicing medicine in rendering medical care services relevant to the claim.  CPR §74.401(c).

Challenging Qualifications of Physicians

CPR §74.401(e) spells out procedures for challenging a proposed expert’s qualifications prior to trial.  A pretrial challenge must be made no later than (1) the 21st day after the date the objecting party received a copy of the proposed expert’s curriculum vitae or (2) the 21st day after the date of the proposed expert’s deposition.  The court must conduct a hearing to determine whether the proposed expert is qualified as soon as practicable after the filing of the challenge and, if possible, before the trial starts.  Nothing in the statute prevents a party from examining or cross-examining the witness at trial about his or her qualifications.

Health Care Provider as Defendant

The qualifications for serving as an expert medical witness against a health care provider defendant on the issue of whether the defendant departed from the accepted standard of medical care are set forth in CPR §74.402.  It provides that an individual may qualify if he or she:

  1. is practicing health care in a field of practice that involves the same type of care or treatment as the defendant,
  1. has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim, and
  1. is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.

In evaluating whether a proposed expert is qualified on the basis of training and experience, courts are directed to consider whether, at the time the claim arose or when testimony is given, he or she (1) is certified by a licensing agency of one or more states of the U.S. or a national professional certifying agency or has other substantial training or experience in the area of health relevant to the claim and (2) is actively practicing health care in rendering health care services relevant to the claim.  CPR §74.402(c).

The term ‘health care provider’ is defined in CPR §74.001(a)(12) and includes, among others, registered nurses, dentists, podiatrists, pharmacists, chiropractors, and optometrists.  Refer to the statute for the complete list.

Challenging Qualifications of Health Care Providers

CPR §74.402(f) spells out procedures for challenging a proposed expert’s qualifications prior to trial.  A pretrial challenge must be made no later than (1) the 21st day after the date the objecting party received a copy of the proposed expert’s curriculum vitae or (2) the 21st day after the date of the proposed expert’s deposition.  The court must conduct a hearing to determine whether the proposed expert is qualified as soon as practicable after the filing of the challenge and, if possible, before the trial starts.  Nothing in the statute prevents a party from examining or cross-examining the witness at trial about his or her qualifications.

Admissibility of Expert Medical Witness Testimony on Causation

“The general rule has long been that expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience of jurors.”  Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007).  Admissibility of expert medical witness testimony on the issue of causation between the alleged negligence and injury is governed by CPR §74.403.  It states:

in a suit involving a health care liability claim against a physician or health care provider, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.

The relevant section of the Texas Rules of Evidence is Rule 702. Testimony by Expert Witnesses.  It states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

The Texas Supreme Court has established a two-part test that governs whether expert testimony is admissible: (1) the expert must be qualified and (2) the testimony must be relevant and be based on a reliable foundation.  E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).

As to whether a proposed expert is qualified, the Supreme Court has instructed trial courts when deciding that issue they “must ensure that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion.”  Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001).  The trial court makes the initial determination about whether a proposed expert is qualified.  Robinson, 923 S.W.2d at 556.  Furthermore, the trial court is granted broad discretion to determine admissibility, and the Supreme Court has stated that it will only reverse if there is an abuse of that discretion.  Id. at 558. The Supreme Court has also ruled that simply because a proposed expert is a physician does not mean that he or she is qualified to testify on the issue of causation in every medical malpractice case.  Broders v. Heise, 924 S.W.2d 148 (Tex. 1996).

To help trial courts determine whether the proposed testimony is relevant and based on a reliable foundation, the Court in Robinson, 923 S.W.2d at 557, announced a nonexclusive list of six factors to consider in determining admissibility:

  1. the extent to which the theory has been or can be tested,
  1. the extent to which the data or technique relies on an expert’s subjective interpretation,
  1. whether the theory or technique has been subjected to peer review and/or publication,
  1. the technique’s potential rate of error,
  1. whether the underlying theory or technique has been generally accepted in the relevant scientific community, and
  1. the non-judicial uses which have been made of the technique or theory.

Lay Testimony on Causation

The Texas Supreme Court has stated that lay evidence can be used to establish causation “in those cases in which general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition.”Lenger v. Physician’s General Hospital, Inc., 455 S.W.2d 703, 706 (Tex. 1970).  Lay testimony that establishes “a sequence of events which provides a strong, logically traceable connection between the event and the condition is sufficient proof of causation.  Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984).  In Morgan, a previously healthy employee was exposed to leaking chemicals, and afterwards,she suffered watery eyes, blurred vision, headaches, and swelling of her airways.  The Court concluded that lay testimony was sufficient to connect the injuries to the negligence with no evidence of causation other than the leaking chemicals.  Id. at 733.
The standard for layperson testimony to establish causation was articulated by the Texas Supreme Court this way: layperson “evidence alone is sufficient to support a finding of causation in limited circumstances where both the occurrence and conditions complained of are such that the general experience and common sense of laypersons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence.”  Guevara v. Ferrer, 247 S.W.3d 662, 668 (Tex. 2007).

VIII. Expert Report Requirement

Introduction

After a plaintiff files a petition in court for a claim based upon medical malpractice, an expert report along with the curriculum vitae of each expert listed in the report must be sent to each defendant within 120 days of the date each defendant’s original answer is filed.  CPR §74.351(a).  The parties may voluntarily extend the deadline for serving the expert report by written agreement.  Id.

It is absolutely essential that this requirement is satisfied on a timely basis.  Failure to do so will result, upon motion of the affected defendant, in the court ordering (1) plaintiff to pay reasonable attorney fees and court costs to the defendant and (2) dismissal of plaintiff’s claim against the defendant “with prejudice to the refiling of the claim.”  CPR §74.351(b).  Dismissing the claim “with prejudice” means that it is completely extinguished with respect to the affected defendant and may never be brought again.

CPR §74.351(r)(6) defines expert report as follows:

a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the 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 that failure and the injury, harm, or damages claimed.

A compliant report need not include the entirety of the plaintiff’s evidence and case.  However, “it must include the expert’s opinion on each of the three elements that the Act [CPR §74.351] identifies: standard of care, breach, and causal relationship.”  American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).  In order for a report to be compliant, it cannot simply state the expert’s conclusions about the required elements.  Id. at 879.

For purposes of the expert report requirement, an expert is a person who qualifies to provide opinion testimony regarding the accepted standards of medical care under either CPR §74.401 or CPR §74.402, depending on whether the defendant is a physician or health care provider. CPR §74.351(r)(5).Additionally, an expert for purposes of providing opinion testimony regarding the causal relationship between the alleged negligence and injury is a person who is qualified to do so under the Texas Rules of EvidenceId.The statute is clear that multiple experts may be used with respect to different defendants and different issues such as liability and causation.  CPR §74.351(i).

CPR §74.351(k) prohibits an expert report from being (1) admissible in evidence by any party, (2) used in a deposition, trial, or other proceeding, and (3) referred to by any party during the course of the action for any purpose.  In the event the plaintiff uses the report for any purpose other than providing it to the defendants, the foregoing restrictions on its use are waived.  CPR §74.351(t).

Challenging Sufficiency of Report: Deficient Report Versus No Report

If a defendant intends to object to the sufficiency of the expert report, he or she must do so by the 21st day after the date the report is served or the 21st day after the date the defendant’s answer is filed, whichever is later.  CPR §74.351(a).Otherwise, all objections are waived.  Id.A court may grant the motion “only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report….”  CPR §74.351(l).

The Texas Supreme Court has established a two-part test to determine whether an expert report constitutes a good faith effort to comply with the statutory definition: (1) it must inform the defendant of the specific conduct the plaintiff has called into question and (2) it must provide a basis for the trial court to conclude the claims have merit.  Palacios, 46 S.W.3dat 879.

The issue of the sufficiency of a purported expert report and whether it constitutes(1) a deficient report or (2) no report at all because it is so lacking in substance is often intensely disputed because there are important consequences for each characterization.  If the report is deemed not to have been served within the 120-day period because it is deficient, the court may grant one 30-day extension to cure it.  CPR §74.351(c).  On the other hand, if the report is deemed not to have been served because it is so lacking in substance as to not even be considered a report at all, then that is tantamount to no report being timely filed, and the claim will be dismissed in accordance with CPR §74.351(b).

In 2011, the Texas Supreme Court addressed this issue and was called upon to clarify what constitutes a deficient report versus no report at all.  Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011).  The Court held that the standard for determining whether a report is merely deficient, as opposed to no report at all, is whether “it contains the opinion of an individual with expertise that the claim has merit, and if the defendant’s conduct is implicated.”  Id. at 557.  The Court readily acknowledged that this was a minimal standard but added that trial courts must be lenient in granting 30-day extensions and must do so if deficiencies in an expert report can be cured within that period.  Id. at 554.

According to the Court, the legislative intent behind the expert report requirement is to weed out and deter frivolous claims.  The Court observed that a deficient report that can be cured in 30 days is not a frivolous claim.  Trial courts must keep in mind when deciding whether to grant the statutory 30-day extension that the purpose of the expert report requirement is to “deter frivolous claims, not to dispose of claims regardless of their merits.”  Id.

IX. Modified Comparative Negligence

Texas follows the doctrine of modified comparative negligence with the 51% bar rule.CPR §33.001 provides “a claimant may not recover damages if his percentage of responsibility is greater than 50 percent.”  CPR §33.002 makes it clear that the statutorily enacted doctrine applies to medical malpractice cases, stating that it applies to “any cause of action based on tort….”Medical malpractice is a tort based on professional negligence.

Modified comparative negligence is a fault and damages allocation system.  Texas uses the term ‘proportionate responsibility.’CPR §33.001.  Under this system, fault is determined and apportioned among the parties involved (plaintiff and all defendants), and how much compensation the plaintiff can recover is limited by his or her relative share of fault for causing the injury.  As a result, the plaintiff’s recovery is limited by his or her assigned percentage of fault.CPR §33.012(a).  The 51% bar rule means that if the plaintiff’s allocated percentage of fault is 51% or greater he or she is barred from recovering any damages.  Plaintiffs in Texas must be 50% or less at fault for their injuries in order to recover damages.

For example, assume a plaintiff is determined to be 50% at fault, and the damage award is $100,000.  The amount to which the plaintiff is entitled is $50,000 because the plaintiff’s allocated percentage share of fault, i.e., 50% or $50,000, is deducted from the damage award.  If the plaintiff were determined to be 51% at fault, he or she would not be entitled to any of the $100,000 damage award because Texas applies the 51% bar rule.

Chapter 33 of the Texas Civil Practice and Remedies Code contains technical details for the application of the comparative negligence doctrine to actual cases.  The trier of fact, which is generally the jury but the judge serves in that role if the right to a jury is waived, is responsible for determining the percentage of responsibility, in whole numbers, for all parties involved in the case.  CPR §33.003.  The proportional reduction of recoverable damages to which the plaintiff is entitled also applies to settlements.  CPR §33.012(b).  The court is directed to “reduce the amount of damages to be recovered by the claimant with respect to a cause of action by the sum of the dollar amounts of all settlements.”  Id.Comparative negligence does not apply to claims for exemplary damages (also commonly known as punitive damages).  CPR §33.022(c)(2).

X. Statutory Limitations on Damages

Introduction

Texas law imposes several statutory limitations on damages for personal injury and wrongful death claims based upon medical malpractice.The limitation amounts vary depending on the type of defendant as well as the type of cause of action involved.  The three primary statutory limitations for medical malpractice claims cover non-economic damages against healthcare providers and healthcare institutions for personal injuries and all damages against healthcare providers for wrongful death or survival actions.CPR §§74.301 and 74.303.  A fourth statutory limitation on damages applies to the amount recoverable for medical expenses.

Healthcare providers are defined in CPR §74.001(a)(12).  Physicians are not included within the statutory definition of healthcare providers.  Instead, they are defined separately in CPR §74.001(a)(23).  But for purposes of this discussion, the term ‘healthcare providers’ also includes physicians.  Healthcare institutions are defined in CPR §74.001(a)(11).

The types of damages available to plaintiffs in Texas medical malpractice cases are defined by statute inCPR §74.001(a)(6) by referencing the definitions contained in CPR §41.001 as follows:

  • Economic damages are defined as “compensatory damages intended to compensate a claimant for actual economic or pecuniary loss; the term does not include exemplary damages or non-economic damages.”
  • Non-economic damages are defined as “damages awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other non-pecuniary losses of any kind other than exemplary damages.”
  • Exemplary damages are defined as “any damages awarded as a penalty or by way of punishment but not for compensatory purposes. Exemplary damages are neither economic nor non-economic damages.”  Exemplary damages specifically include punitive damages.

The statutory scheme setting forth the limitations on damages refers to a cause of action called ‘survival actions.’  Most people are likely unfamiliar with this cause of action, so a brief explanation is provided.

Survival actions are for damages that the decedent incurred from the time of the injury up until death.  In contrast to wrongful death actions, survival actions are based on claims that the decedent had while alive and survive his or her death. Claims for these damages survive the decedent’s death in favor of his or her heirs, legal representatives, and estate.  CPR §71.021(b).  Recoverable damages include pain and mental anguish, medical expenses, and funeral and burial expenses.Upon the death of an individual, both wrongful death and survival actions may be brought; they are not mutually exclusive.  In addition, they may be brought simultaneously or sequentially.

Non-economic Damages Against Healthcare Providers for Personal Injury

CPR §74.301(a) limits non-economic damages for medical malpractice claims for personal injury against healthcare providers to $250,000. This limitation on damages is for each plaintiff; it applies regardless of how many defendants or separate causes of action are involved.Id.

Non-economic Damages Against Healthcare Institutions for Personal Injury

CPR §74.301(b) limits non-economic damages for medical malpractice claims for personal injury against a single healthcare institution to $250,000.  If more than one healthcare institution is named as a defendant, the limitation on damages is $500,000, regardless of how many institutional defendants are involved.  CPR §74.301(c).

The total possible amount recoverable for non-economic damages with respect to an individual plaintiff is $750,000.  For this maximum amount to be recovered, there must be at least one healthcare provider ($250,000 maximum recoverable amount) and at least two healthcare institutions ($500,000 total maximum recoverable amount) as defendants in the case.

All Damages Against Healthcare Providers for Wrongful Death

 

CPR §74.303 limits all types of damages for medical malpractice claims for wrongful death or survival action against healthcare providers to $500,000.  This limit is per plaintiff and applies to economic, non-economic, and punitive damages.  If more than one healthcare provider is named as a defendant, the limitation on damages is still $500,000, regardless of how many defendants are involved.

It is important to understand that the statutory limit is not a fixed dollar amount.  Rather, it is tied to the Seasonally Adjusted Consumer Price Index from August 1977 published by the U.S. Department of Labor, Bureau of Labor Statistics.  CPR §74.303(b).  Accordingly, as of April 2017, the limitation on damages under CPR §74.303 is actually $1,994,697[1] (rounded to nearest dollar).

The limitation amount under the statute applies to “all damages, including exemplary damages.”  CPR §74.303(a).  This means that even economic damages such as past and future lost wages and out-of-pocket expenses are subject to the limitation.  Punitive damages, where applicable, are also subject to this limitation on damages.  But the amount of damages awarded for “the expenses of necessary medical, hospital, and custodial care received before judgment or required in the future for treatment of the injury” are expressly excluded from the damages limitation under the statute.  CPR §74.303(c).

Doubts About the Constitutionality of Limitation on Economic Damages

Note that some commenters believe that CPR §74.303’s limitation on economic damages is unconstitutional.  Below is the broad outline of their argument.

On June 3, 2003, both houses of the Texas Legislature signed House Bill 4, which included CPR §74.303, during the 78th Legislature, Regular Session.  Governor Rick Perry signed it into law on June 11, 2003. As a prophylactic measure to stave off constitutional challenges to the limitations on damages provisions of the Bill, the Legislature put Proposition 12 on the September 2003 ballot, asking voters to adopt it thereby adding Section 66 to Article III of the Texas Constitution.  Texas voters adopted it by a narrow margin.  The purpose of Proposition 12 was to provide authorization for the Legislature to enact limits on non-economic damages in medical malpractice cases.  House Research Organization, Focus Report: Constitutional Amendments Proposed for September 2003 Ballot, No. 78-10, July 28, 2003, at 32.

Article III, Section 66 of the Texas Constitution reads, in pertinent part, as follows:

(a) In this section “economic damages” means compensatory damages for any pecuniary loss or damage. The term does not include any loss or damage, however characterized, for past, present, and future physical pain and suffering, mental anguish and suffering, loss of consortium, loss of companionship and society, disfigurement, or physical impairment.

(b) Notwithstanding any other provision of this constitution, the legislature by statute may determine the limit of liability for all damages and losses, however characterized, other than economic damages, of a provider of medical or health care with respect to treatment, lack of treatment, or other claimed departure from an accepted standard of medical or health care or safety, however characterized, that is or is claimed to be a cause of, or that contributes or is claimed to contribute to, disease, injury, or death of a person…. [emphasis supplied]

(d) …this section applies to a law enacted by the 78th Legislature, Regular Session, 2003, and to all subsequent regular or special sessions of the legislature.

Critics point out that the plain language of Section 66(b) authorizes the Legislature to set limits for all damages and losses, but economic damages are explicitly excluded from that authorization.  Further, Section 66(d) clearly states that Section 66 applies to any laws enacted by the 78th Legislature, which enacted CPR §74.303.  This proves that the constitutional prohibition against limitations on economic damages is applicable to CPR §74.303.  Since Section 66 excludes economic damages from the Legislature’s grant of authority to set limitations on them, the limitation on economic damages in CPR §74.303 is contrary to the unambiguous will of the people as reflected by the adoption of Proposition 12. Therefore, critics charge that the limitation on economic damages in CRP §74.303 is unconstitutional.

As of the date of this article, it does not appear that this issue has been addressed yet by any of the state’s 14 Courts of Appeals or the Texas Supreme Court.  This is an issue prospective plaintiffs and their lawyers are advised to research going forward in preparation for their case.

Mandatory Jury Instructions

CPR §74.303(d) requires the language below to be included in written jury instructions given to jurors in “any action on a health care liability claim that is tried by a jury in any court in this state….”

  1. Do not consider, discuss, nor speculate whether or not liability, if any, on the part of any party is or is not subject to any limit under applicable law.
  1. A finding of negligence may not be based solely on evidence of a bad result to the claimant in question, but a bad result may be considered by you, along with other evidence, in determining the issue of negligence.  You are the sole judges of the weight, if any, to be given to this kind of evidence.

Limitation on Medical Expenses

Texas law limits the amount of recoverable medical expenses in medical malpractice cases.  CPR §41.0105 states that plaintiffs are entitled to recover only those medical expenses “actually paid or incurred by or on behalf of the claimant.”  Since medical expenses often constitute a substantial portion of a damage award, this limitation has the potential of having a significant impact on the amount actually recovered by plaintiffs.

The question of precisely what the term ‘incurred’ means for purposes of the statute has led to intense disagreement.  The way in which healthcare fees are charged and collected is the source of this debate.  It is standard practice for healthcare providers to bill a particular amount (with little to no expectation that this full amount will be collected), but after various credits, discounts, and contractual agreements with third-party payors are applied, the original billed amount is often dramatically reduced.  That reduced amount is ultimately what the injured party and his or her insurance provider are actually liable for paying.  Accordingly, the question is does the term ‘incurred’ refer to the original billed amount or the reduced amount.  The answer to this question has a huge effect of the amount recovered in many cases.

In 2011, the Texas Supreme Court answered the question.  The Court held that “section 41.0105 limits a claimant’s recovery of medical expenses to those which have been or must be paid by or for the claimant.”  Haygood v. De Escabedo, 356 S.W.3d 390, 398 (Tex. 2011).  That is, incurred does not refer to the original billed amount but the amount that must actually be paid.

In Haygood, 12 healthcare providers billed the plaintiff a total of $110,069.12.  After various credits were applied, the total amount due and owing was dramatically reduced to $27,739.43.  Naturally, the plaintiff sought an award of the original billed amount as medical expenses incurred.  The Court disagreed, holding that the amount for which he and his insurance carrier are required to actually pay is the amount incurred for purposes of.  CPR §41.0105Id.

XI. Apologies and Sympathetic Gestures

Texas is among the 42 states that have some form of apologies or sympathetic gestures statute that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit.  Texas law allows a person to communicate an apology or other sympathetic gestures to a person injured in an accident without it being admissible in court.  In Texas, such expressions alone do not constitute an admission.

Texas’ statute is located in CPR §18.061.  It states that a communication that “expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of an individual in an accident” that is made to the person or a family member is inadmissible in a civil action.  Communication is defined as (1) a statement, (2) a writing, or (3) a gesture that conveys a sense of compassion or commiseration emanating from humane impulses.  Id.

However, a communication under the statute that also includes “a statement or statements concerning negligence or culpable conduct pertaining to an accident or event[] is admissible to prove liability of the communicator.”  Id.  Excited utterances are expressly included in the foregoing self-incriminating communications.   Id.Texas Rules of Evidence Rule 803(2) defines an excited utterance as a “statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.”

Despite the statutory protection provided by CPR §18.061, a healthcare practitioner must still be exceptionally careful if he or she chooses to communicate expressions of sympathy.  Notice that a statement of fault, even uttered in the heat of the moment, is expressly excluded from the protections afforded by the statute, so anything that could reasonably constitute such a statement could potentially be used as an admission of liability.

[1] As per the statue, the formula is current seasonally adjusted CPI divided by seasonally adjusted CPI for August 1977 to calculate the multiplier.  Then multiple the multiplier by the initial limit in the statute, i.e., $500,000.  Thus, 243.752 (April 2017 CPI) divided by 61.100 (August 1977 CPI) equals multiplier of 3.9893944354; $500,000 multiplied by 3.9893944354 equals $1,994,697 (rounded to nearest dollar).

Here is an interactive graph with the Seasonally Adjusted CPI from 1947 to April 2017 that can be used to calculate the limitation amount for any point in time within the foregoing time-frame.