1. What do I need to do, if
I believe I was injured while under the care of a physician, hospital or other healthcare provider?
In order to pursue a claim against certain
healthcare providers in the State of Texas, you will need to send a written letter notifying the healthcare
provider of your potential claim pursuant to Article 4590(i), section 4.01(a), Texas Revised Civil Statutes.
This letter should be sent certified mail, return receipt requested, to each person and/or entity you intend
to file suit against. Texas law requires this letter to be sent prior to filing suit. It is important to
note that if this notice letter is sent prior to the expiration of the statute of limitations in your case,
it will extend or toll the statute of limitations by 75 days. You should also obtain a copy of all the relevant
medical records (see Question No. 3 below).
2. If I was injured at a hospital
or medical clinic, do I only need to send a notice letter to the hospital or medical clinic?
If you know the name of the physician
or physicians who treated you at the hospital or clinic where you believe you were injured and/or that failed
to diagnose and treat your injury, illness, or condition, then you should send a notice letter to both the
hospital or clinic and to each physician who treated you at that facility. Most physicians are not employees
of the hospital and should be sent a separate notice letter if possible. If, however, you believe your injury
was due to some act and/or omission on the part of a nurse, therapist, orderly, or other employee of the
hospital, then a notice letter to the hospital should be sufficient. You may want to consult with an attorney
about whom to send notice letters to and when. We would be happy to refer you to law firm that handles
these types of claims.
3. If I plan on hiring an attorney, do I need to obtain a copy of my medical
records?
YES. Most attorneys will want
you to obtain a copy of your own medical records from each physician and other healthcare providers who
treated you for the injury, illness, disease or condition, in connection with your potential claim before
the attorney will agree to accept your case. This is especially true for the healthcare providers you believe
caused you any harm while under their care. You should not tell anyone in the record’s department
or service for the healthcare providers you believe caused you any harm that you are intending to pursue
a medical malpractice claim against them or plan to consult with an attorney. Healthcare providers sometimes
will modify, alter, change, amend, revise or destroy documents if they think are going to be sued. If you
are treating with a subsequent medical provider not affiliated with the hospital, clinic, or office with
the physician you think harmed you, then you may want to ask your subsequent medical provider if they will
order these records for you. Again, it is not wise or prudent to tell anyone, including persons at your
subsequent medical provider’s office you have consulted with an attorney or intend to pursue a malpractice
claim until you have obtained all of your medical records. Just ask them to assist you in getting a copy
of your prior medical records related to your injury, illness, disease or condition. We would be happy
to refer you to law firm that handles these types of claims.
4. Does it matter how
long ago the alleged malpractice occurred?
YES. The Medical Liability and Insurance Improvement
Act of Texas, Art. 4590i, § 10.01, as presently interpreted, requires that a suit for medical malpractice
be filed within two (2) years of the date of the alleged malpractice or last date of treatment, or hospitalization
which is strictly construed by the Texas Supreme Court. Failure to file the suit within the applicable statute
of limitations could result in the claim being permanently barred. As discussed above, the court will sometimes
toll or extend the deadline if you sent a notice letter as required by the statute or if fraud prevented
you from discovering the alleged malpractice. If you believe the date of the alleged malpractice in your
case was more than two years ago, then you should consult with an attorney immediately
to determine if the courts will allow you to pursue your claim. Under the Discovery Rule, the courts will
occasionally allow a claim to be brought after it was discovered under certain fact situations, even if
it is more than two years from the date of the alleged malpractice. Under the Discovery Rule, a lawsuit
must be brought within a reasonable time (usually less than six months) from the date you discovered or
should have known the alleged malpractice occurred. We would be happy to refer you to law firm that
handles these types of claims.
5. How do I pay for my medical
care?
Even if you do not have health insurance,
Medicare, Medicaid, or any other type of insurance coverage that will pay your medical expenses, you still
should get the medical treatment you need. Most attorneys can assist you in getting medical care for most
types of treatment, testing, etc., under what is called a letter of protection (LOP). This is a letter from
the attorney essentially promising to pay the medical provider from any settlement or verdict, assuming
there is a sufficient recovery in your case. This LOP may allow you to get the medical treatment you desperately
need while your claim is pending. Please note that unexplained gaps in treatment could adversely affect
your claim. If you have no other alternative, you can always treat at a county hospital and/or clinic in
the county where you reside, e.g., Parkland in Dallas County and John Peter Smith in Tarrant County. These
county hospitals are specifically intended to treat persons who do not have any means to pay for medical
treatment. Your failure to seek treatment can adversely affect your case and more importantly your health.
We would be happy to refer you to law firm that handles these types of claims.
6. Why should I consider hiring
an attorney?
There are numerous reasons to consult
with and hire an attorney if you have a medical malpractice claim. The most obvious reason may be that you
will probably need legal assistance in finding, and paying the necessary fees to hire, an expert to prove
the healthcare provider was negligent and proximately caused your injury. Under Texas law, you must file
an affidavit from a qualified expert, no later than 180 days from the date you filed suit, for each healthcare
provider you intend to sue. The affidavit must state several statutory requirements including but not limited
to the following: 1) what the standard of care was in your case; 2) how the healthcare provider breached
that standard of care (referred to as negligence), and 3) that the breach proximately caused the harm you
are alleging in your lawsuit (referred to as causation). I URGE YOU TO CONSULT WITH AN ATTORNEY IF YOU INTEND
TO PURSUE A MEDICAL MALPRACTICE CLAIM. We would be happy to refer you to law firm that handles these
types of claims.
