Medical Malpractice

Published on: August 9, 2015

Texas Medical Malpractice Claims Against a Governmental Entity

In University of Texas Health Science Center at Houston v. Cheatham, the appellate court considered the dismissal of a plaintiff’s health care liability claim based on immunity. The plaintiff had received a partial left heart bypass surgery by two employee doctors at the Health Science Center in 2008. Nurses helped doctors perform the procedure.

After the procedure, the plaintiff was X-rayed. The X-ray showed something metallic embedded within the plaintiff’s chest. He was taken back to the operator room, and the metallic object was a surgical needle. The plaintiff sued the doctors, alleging that they negligently left the needle in his chest. The doctors moved to dismiss on the grounds that they were government employees. The lower court granted the motion.

The plaintiff then filed an amended complaint, adding the Health Science Center as a defendant. The Health Science Center argued it was also immune. It claimed that the plaintiff had failed to give formal or actual notice as required by the Texas Tort Claims Act. It also filed evidence to support its plea to the jurisdiction. The plaintiff didn’t contest the evidence as inadmissible. The trial court denied the plea, and the defendant appealed.

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Published on: March 16, 2015

Expert Reports in Texas Medical Malpractice Lawsuits

By Carabin Shaw

In Columbia North Hills Hospital, Subsidiary LP v. Tucker, a defendant appealed the court’s denial of its motion to dismiss. The case arose when the plaintiff checked into the hospital with serious abdominal pain. Although she was discharged, she returned the same day and had to have a surgery. After surgery, she was transferred to a room with a note on her patient care plan saying that she had a high risk to fall. When she went to use the restroom three days later, she fell and a nurse found her on the restroom floor. She was discharged from the hospital, even though the injuries from the fall were serious, and she had to undergo surgeries to her back and neck because of them.

She sued the hospital and other defendants, alleging negligence and gross negligence. She attached a Nurse Dexter’s report to her petition. The defendants objected. She also served an expert report by Larry Kjeldgaard, but this report was late. She also amended her pleadings so that her suit would proceed only against the hospital.

The hospital moved to dismiss her case on the grounds that the Dexter report didn’t satisfy the legal requirements of § 74.351(a) for an expert report and that the other report was late. The trial judge sustained the defendant’s objections to the Dexter report but allowed the plaintiff to file a compliant report. She filed an amended pleading to which she attached reports from both experts.

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Published on: March 16, 2015

Statute of Limitations Bars Texas Failure to Diagnose Cancer Case

By Carabin Shaw

Texas Civil Practice and Remedies Code section 74.251 sets forth the statute of limitations on health care liability claims. The limitations period is measured from the occurrence of the breach or tort, or the last date of treatment, or the last date of relevant hospitalization. The plaintiff can’t choose the date most favorable to him or herself. Instead, the limitations period begins to run on the date of the breach if it was ascertainable. At that point, the plaintiff needs to give written notice of the claim to a doctor at least 60 days before filing a complaint.

In Estate of Klovenski v. Kapoor, an appellate court considered a failure to diagnose cancer case. The plaintiffs brought wrongful death and survival claims against the defendant doctor on the grounds that the doctor failed to diagnose cancer in the decedent.

The decedent had complained to the doctor about a mass in her left thigh in 2006 and was told it was not problematic and didn’t require medical care. When the decedent continued to experience pain, she complained again and again, but the doctor told her she didn’t have anything to worry about. Another doctor eventually determined that the mass was cancerous, and the decedent died in the summer of 2007. Her survivors asserted that the doctor had been negligent in failing to diagnose cancer and treat the decedent and that this failure caused her death.

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Published on: December 11, 2014

Requirement of Expert Report in Texas Medical Negligence Cases

By Carabin Shaw

In Methodist Health Centers v. Crawford, a Texas woman’s son and daughter sued a health center for medical malpractice in connection with its care of their mother. The mother was admitted to a nursing facility with a history of diabetes and dementia. She had a pressure ulcer on her back and needed a feeding tube. A month later, she was transferred to the defendant’s hospital for treatment of her urinary tract infection and vomiting. She also had another pressure sore on her hip. A few days later, the pressure ulcers had gotten worse. She was discharged back to the nursing facility. A few months later she again had vomiting, a fever, and shortness of breath and was transferred back to the hospital.

Her condition deteriorated in spite of antibiotics and other treatment. She died of pneumonia, infection, and respiratory failure a few days later. Her son and daughter sued the medical and nursing facilities, both individually and as the woman’s heirs. They attached a doctor’s expert report and CV to the petition, as required by Texas law. They settled with the nursing facility, but the hospital moved to dismiss for failure to serve an adequate expert report. The trial court denied the motion to dismiss.

Under Texas law, a plaintiff must serve a defendant with an expert report, along with a CV of the experts listed in the report. An expert is only qualified to offer an opinion on whether the health care provider deviated from the standard of care if the person practices health care in the same field as the defendant, knows the accepted standard of care for the provider, and is qualified due to training or experience to offer an expert opinion about the standard of care. If a doctor doesn’t state in the expert report that he or she has knowledge of the standard of care, the court will find he or she is not qualified to offer an opinion. Continue reading →

Published on: October 15, 2014

Husband Misses Statute of Limitations for Medical Malpractice Claim

By Carabin Shaw

Failure to file a medical malpractice claim within the time limits can result in your claim being barred. In the recent case of Gale v. Lucio, a doctor and wellness center appealed on the issue of whether the plaintiff could invoke the open courts provision of the state constitution to toll the statute of limitations in a wrongful death and survival claim brought by his wife.

The plaintiff’s wife was a patient of the doctor and wellness center. The wife visited the doctor in order to get her blood pressure checked. The doctor ordered a chest x-ray, which revealed she had a density in her left lung base. A mammogram and CT scan were ordered. The scan showed a wedge-shaped mass on the woman’s left lung, but the plaintiff claimed the wife and he were never informed of the results. The doctor said her office called and mailed the results.

The wife came back for routine appointments and claimed she had a cough. The doctor ordered another chest x-ray that showed a new growth on her lung. After that, the wife was diagnosed with stage IV metastatic lung cancer. The couple sued the doctor for medical malpractice, claiming that the doctor had failed to report the abnormal CT scan to her in a timely fashion and to refer her to a pulmonologist, which caused a delay in her diagnosis. Continue reading →

Published on: June 9, 2013

The Most Common Reason Behind Medical Malpractice Lawsuits is Mistake in Diagnosis

By Carabin Shaw

According to a recent article in The New York Times, citing a study published online by BMJ Quality & Safety on April 22, 2013, most medical malpractice settlements and damage awards were the result of diagnostic mistakes. In fact, the study, which was compiled using the National Practitioner Data Bank, found that among the 350,706 paid malpractice claims analyzed from 1986 to 2010, diagnostic errors appeared to be the most common, most costly, and most dangerous types of medical mistakes.

More specifically, the report found that diagnostic errors were the leading type of paid medical malpractice claims (28.6%), and accounted for the highest proposition of total payments at 35.2%. Additionally, diagnostic errors accounted for 33.8% of the disabilities and almost 40% of the deaths that resulted in medical malpractice payments. Notably, more diagnostic errors were outpatient than inpatient (68.8% vs. 31.2%). However, inpatient diagnostic errors were more likely to be lethal (48.4% vs. 36.9%).

After diagnostic errors, treatment errors and surgical mistakes accounted for the second and third highest reasons for payouts. All other errors combined, including birth injuries and other obstetrical errors, medication mistakes, monitoring mistakes and anesthesia mistakes, accounted for only 20% of payouts total.

Moreover, a study of 190 errors at a VA hospital system in Texas found that, while many diagnostic errors involved common diseases such as pneumonia and urinary tract infections, 87% of these errors had the potential for “considerable to severe harm”, including “inevitable death.” A commentary on the Texas VA study revealed that misdiagnosis is not limited to hospitals. The commentary estimates that “with more than half a billion primary care visits annually in the United States . . .at least 500,000 missed diagnostic opportunities occur each year at U.S. primary care visits, more resulting in considerable harm.”

Dr. David E. Newman-Toker, a senior author of the study and an associate professor of neurology at John Hopkins, stated, “this is a major health problem”, and “physicians, hospitals, and insurers all need to contribute to fixing it.” Indeed, problems with misdiagnosis are not a new problem. In 1991, the Harvard Medical Practice Study found that misdiagnosis accounted for 14% of adverse events and that 75% of these errors involved negligence such as failure by doctors to merely follow up on test results. Furthermore, a 2009 report funded by the federal Agency for Healthcare Research and Quality found that 28% of 583 diagnostic mistakes reported by doctors were life threatening or had resulted in death of permanent disability.

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