First steps to take when pursuing a medical malpractice case

The first steps in a Texas medical malpractice case happen before any lawsuit is filed: getting the care you need now, requesting your records under Texas law, writing down what happened while it is fresh, and finding out how much time you have. Texas health care liability claims follow strict rules under Chapter 74 of the Civil Practice and Remedies Code, and what you do in the first weeks can affect whether a claim is possible later.

If you believe you or a family member was harmed by medical negligence, the steps below explain what to do first. Davis & Davis represents patients and families across the Houston area in medical malpractice cases. If you are still unsure whether what happened was malpractice, our article on what to do if you suspect medical malpractice covers the warning signs. This post is about the practical first moves once you are considering a claim.

Step One: Get the Medical Care You Need

Your health comes first. If you are still experiencing symptoms or complications, see another qualified provider for evaluation and treatment. A second opinion can also clarify what went wrong and what care you will need going forward, which later becomes part of documenting your damages. Keep the paperwork from every new visit.

Step Two: Request Your Medical Records Under Texas Law

Your records are the foundation of any malpractice claim. Texas law gives patients a right to them:

• Physician records: Under Texas Occupations Code Section 159.006, a physician generally must provide copies of a patient’s records within 15 business days after receiving a written request, subject to reasonable copying fees.
• Electronic health records: Texas Health and Safety Code Section 181.102 requires covered entities that use electronic health records, such as many hospitals and clinics, to provide a patient’s electronic records on written request.
• Every provider involved: Request records from each office, hospital, urgent care, lab, imaging center, and pharmacy that played a role, because one chart rarely tells the whole story.

Make your request in writing and keep a copy with the date you sent it. If a provider delays or refuses, our article on what to do when a doctor refuses to release medical records explains your options.

Step Three: Write Down Your Timeline and Keep Evidence

Memories fade quickly, and details that seem minor now can matter later. Write a dated timeline of your symptoms, each appointment or hospital stay, what each provider told you, phone calls to offices, and any instructions you received at discharge. Keep photographs of visible injuries, your bills and explanation-of-benefits statements, records of missed work, prescription receipts, and the names of the doctors, nurses, and staff involved in your care.

Step Four: Be Careful With Conversations and Paperwork

It is reasonable to ask your provider questions about what happened and what comes next. Keep notes on what you are told. Be cautious, however, about signing releases, waivers, or settlement paperwork offered by a provider, hospital, or insurer before you understand your rights, because some documents can limit a later claim. Our article on whether you can sue if the doctor admits fault discusses how a provider’s statements are treated.

Step Five: Understand the Medical Board Complaint Is a Separate Process

You may file a written complaint with the Texas Medical Board about a physician’s conduct. The board reviews whether the physician violated the rules that govern medical practice and can take action on the physician’s license. A board complaint is not a claim for compensation, however, and it does not stop or extend the deadline for filing a civil malpractice claim. If you want to pursue compensation, you need to protect that deadline separately.

Step Six: Learn the Texas Deadlines That Apply

Texas imposes several time limits on health care liability claims. Under Section 74.251, a claim generally must be filed within two years from the date of the treatment or, for a course of treatment, from the date it was completed. Texas does not apply a general discovery rule to these claims, so the clock usually runs even if you did not yet know something was wrong. Children under 12 have until their 14th birthday, and a 10-year statute of repose sets an outer limit. Our article on the discovery rule and Texas malpractice claims explains the narrow exceptions.

Two more requirements shape the timeline. Under Section 74.051, written notice of the claim must be sent to each provider at least 60 days before a lawsuit is filed, and under Section 74.052 that notice must include a statutory medical authorization form allowing release of relevant records. After suit is filed, Section 74.351 requires serving a report from a qualified physician on each defendant within 120 days after that defendant files its answer. That report, not a “certificate of merit,” is the Texas requirement.

Step Seven: Talk With a Medical Malpractice Attorney

An attorney can review your records, arrange review by qualified physicians, evaluate whether the standard of care was breached and whether that breach caused your injury, and manage the notice and report deadlines. Texas also limits non-economic damages in these cases under Section 74.301, and an attorney can explain how those limits may apply. For a look at what happens after these first steps, see our overview of the process of filing a medical malpractice lawsuit.

At Davis & Davis, we focus on medical malpractice and work with qualified physicians to evaluate every claim we take on. Every case is different, and we cannot promise a particular result. To schedule a free, confidential case evaluation, please complete our contact form.

Source: findlaw.com, “First steps in a medical malpractice case,” accessed on Aug. 25, 2014

Frequently Asked Questions About First Steps in a Texas Malpractice Case