Frequently Asked Questions About Medical Malpractice Claims

DISCLOSURE STATEMENT:

The following should not be considered legal advice on your personal injury claim. For questions about your specific claim, you should consult with an attorney. The following information is based on the Texas medical malpractice statute (Medical Liability and Insurance Improvement Act of Texas, Article 4590, Texas Revised Civil Statutes). Please note that the laws and statutes regarding these types of claims vary from state to state. Additionally, the Texas legislature may make changes to the statute and the court’s interpretation of this statute is subject to change in the future. You need to consult with an attorney licensed in the state where your alleged medical malpractice occurred for information regarding your specific claim. PLEASE BE ADVISED THAT DUE TO RECENT CHANGES IN TEXAS LAW, OUR FIRM NO LONGER HANDLES MEDICAL MALPRACTICE CLAIMS. We would be happy to refer you to a law firm or assist you in finding a law firm to review your claim. Please note that our firm will be paid a referral fee by the law firm you are referred to, if they accept your case and are able to obtain a settlement or verdict on your behalf.

  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.

Please feel free to call me at 1-800-275-6720 (in Texas only) or 214-739-3800, to schedule a free consultation to discuss your claim. Or visit our Contact Us page for more information about contacting our office.