Medical mistakes by a doctor, dentist, nurse or others in a hospital, clinic or medical practice can result in greater problems than what brought you to them in the first place. From such miscues come aggravation of illnesses, infections, organ failures and sudden injuries or emergencies, and death. Victims face additional medical expenses, pain and suffering, disabilities.
At its essence, medical malpractice is negligence. With the practice of medicine involving specialized knowledge, skill and expertise, proving malpractice cases primarily require that juries have opinions of qualified medical professionals that a physician failed to use proper care. Spurred tort reform measures, those pursuing medical malpractice claims must navigate seemingly onerous requirements to event get into court.
If you believe you have suffered from medical mistakes, such as erroneous prescriptions, misdiagnosing or not diagnosing a condition, take these steps promptly, yet carefully.
Be Careful If You Communicate With the Potential Defendants
If you believe the physician has committed a medical error, use caution if you seek your remedy from that physician. As you’ll read below, the deadline for filing a medical malpractice lawsuit starts either when the physician makes a mistake or the time you should have discovered the harm from that mistake. When you inform the potential defendant of what you contend to be the error and the resulting harm, that moment will likely start the time you have to file a lawsuit unless the physician continues treatment to remedy the problem.
Speaking to the physician you claimed has harmed you places you at risk that you will say something that could be used against you. These may include statements construed as an admission that the medical provider was not at fault or that you contributed to your own harm, such as by not following the post-discharge or prescription instructions.
Heed the Time Limits
As with lawsuits in general, you have a deadline to start a medical malpractice lawsuit. Texas law sets the statute of limitations for these cases at two years from the occurrence of the wrongful or negligent act. The running of the statute of limitations clock does not always necessarily start on the date of the particular treatment or service you claim to be erroneous.
In some cases, the injury or harm does not become apparent until some time after you encounter in the medical center or with the medical professional. For these cases, the “discovery rule” gives you two years from the time that you should have discovered harm or injury caused by a medical error. If the injury was obvious at the time of the mistake, say the removal of the wrong limb at surgery, the statute of limitations begins to run from the time of the surgery or otherwise when the mistake happened. Further, under the “continuous course of treatment” rule, you have two years from the last day the defendant medical provider treated you if you could not have reasonably discovered the harm or injury before hand.
The Texas “statute of repose” establishes an outside time limit of ten years for medical malpractice cases. That is, your claim is barred after ten years from the date of treatment — even if you don’t suffer an injury or could not have reasonably discovered it within the ten-year period.
Notify the Would-Be Defendants
You need to understand the prerequisites and conditions for filing a medical malpractice lawsuit, especially with the statutes of limitations in mind. Texas law requires that you give to each medical provider you plan to sue notice of your legal claim for malpractice at least sixty (60) days before filing the lawsuit. Each prospective defendant must receive the notice by certified mail, return-receipt requested. To accomplish this task, you or your lawyer must have the addresses of the physicians or other medical professionals you believe committed malpractice and the clinics or hospitals.
Find an Expert
To prevail in a medical malpractice case, you must present expert testimony that describes the standard of care that applied to your physician or provider, that includes an opinion that the physician deviated from that standard, and that shows how the medical mistake caused your injuries or harm. A qualified expert must hold more than the title of a medical doctor. Specifically, your expert must have either sufficient education or experience in the specialty or area of practice involved in your case.
The requirement of a qualified expert extends beyond the trial to the early stages of the lawsuit. Within 120 days after you file a complaint, you or your lawyer must file and send to the defendants an “affidavit of merit.” In this document, a qualified expert report that he or she has reviewed the circumstances of the case and concludes that the plaintiff has a meritorious case that the defendants violated the standard of care and that the departure caused injury or harm. If you do not serve this within 120 days after filing the suit, your case may be dismissed and any later attempt to refile the suit will be barred by the statute of limitations.
Get Your Medical Records
The expert must have sufficient details of your treatment to prepare an adequate affidavit of merit. You or the lawyer will need to gather medical records of the treatments in question and the condition being treated. Depending on the specific case, your expert needs to know your symptoms or condition, the diagnosis you received, what information the physician, gathered for the diagnosis and treatment, how the physician conducted the procedures, what prescriptions you were using or were given and the like.
Also, you want records for treatments to evaluate or remedy the harm caused by medical mistakes. To that end, you need records of physicians, hospitals or others that examined, diagnosed and treated you after the medical errors. Such records aid with the affidavit of merit and to help you prove damages.
If you have suffered from a medical mistake, you need to take prompt action to secure your health and your malpractice claims. The requirements to start and prove a medical malpractice claim are stringent and include qualified experts. You must satisfy these and other conditions under specific and inflexible deadlines. The aid of a medical malpractice attorney can help keep the technicalities from depriving you of compensation for your injuries.