Texas Law
Texas Personal Injury Law: Medical & Professional Malpractice
Personal Injury Law: Medical & Professional Malpractice
Professional malpractice occurs when a professional improperly performs his or her duties out of carelessness. Plaintiffs suing for professional malpractice must prove that the professional breached his or her duty of care, resulting in the plaintiff's injury. This chapter examines some of the issues involved in professional malpractice lawsuits against doctors, lawyers, engineers, architects, and accountants. A malpractice suit, though, is not the only way in which a professional can incur liability for job-related improper conduct. A professional may breach a contract or commit an intentional tort against a patient or client.
Medical Malpractice
Medical malpractice comprises the majority of professional malpractice lawsuits filed in this country. This is not to say that medical professionals are more prone to committing negligence, but that they are the target of more lawsuits--which is not surprising given the gravity of the situations faced everyday by the medical professional. The number of lawsuits against other professionals, however, is increasing and many of the concepts used in those lawsuits are adapted from the medical malpractice context. Thus, an understanding of medical malpractice is a good introduction to professional malpractice generally. It should be pointed out that the term medical malpractice does not apply only to doctors. Other health care professionals, such as psychologists, nurses, dentists, and physical therapists, also may be sued for medical malpractice.
As in other negligence lawsuits, a plaintiff suing for medical malpractice must show the four elements necessary to prove negligence: duty of care, breach of duty, injury, and proximate cause (see the Personal Injury Law: General Chapter for more discussion of negligence generally).
Duty of Care
Once a doctor or other health care professional agrees to diagnose or treat a patient, he or she has assumed a duty of care toward that patient. What this means is that the health care professional must treat the patient with the same level of care as would a reasonably competent health care professional. But what about a duty to persons who are not patients? Generally, a health care professional does not have a duty to someone who is not a patient. For example, does a doctor have a legal duty to help a stranger choking in a restaurant? The answer is no. At present, the law does not place an affirmative duty on anyone, including health care professionals, to render assistance to others in most situations. Of course, a doctor may help if he or she wants to, but is under no legal obligation to do so.
Breach of Duty
Unlike ordinary negligence cases, proving that a health care professional breached his or her duty of care involves proving what a reasonably competent health care professional would have done in a similar situation. Unfortunately, most judges or jurors do not have a clue as to what is an acceptable medical practice. As a result, medical malpractice lawsuits often become battles between medical experts testifying as to whether the defendant breached his or her duty of care.
In general, a reasonably competent health care professional is one who stays abreast of the relevant treatment literature and uses methods commonly accepted in the profession. A professional who disregards well-established medical standards or attempts to perform procedures beyond his or her capabilities exposes himself or herself to a possible lawsuit. Yet health care professionals often differ on the best course of action in a particular situation. Medicine is an inexact science. What one professional questions as dubious judgment, another may find quite sound. For this reason, proving breach of duty may be the plaintiff's most difficult task in a malpractice lawsuit.
Under one type of medical malpractice claim--the claim for failure to warn of risks-- Texas law attempts to help define a breach of duty. The Texas Legislature created the Texas Medical Disclosure Panel, a panel composed of lawyers and doctors, to determine which medical treatments and surgical procedures require a disclosure of risks and hazards to a patient. The Panel also determines the form in which the disclosures must be made. When a doctor has followed the Panel's disclosure determination, there is a rebuttable presumption that the doctor did not breach his or her duty to warn. This means that the case starts off with the presumption that there was no breach, and the plaintiff must come up with strong evidence to prove the doctor breached his or her duty. Conversely, if a doctor does not follow the Panel's disclosure determination, there is a rebuttable presumption that the doctor did breach his or her duty to the patient.
Proximate Cause
Proximate cause is defined legally as a cause of an injury by a natural and continuous sequence, unbroken by any intervening event and without which the injury would not have occurred. A simpler way of thinking about proximate cause is that it is an act that caused the plaintiff's injury for purposes of assigning liability. A court may not find a defendant liable if there is not a clear line of causation between the defendant's act and the plaintiff's injury. In some cases, a defendant may have caused a plaintiff's injury in a technical sense, but the chain of events leading up to the injury was so convoluted and improbable that the defendant would have had no reason to be aware of any possible risk. In cases in which no reasonable person could have foreseen injury to the plaintiff, courts will not hold the defendant liable.
It is important to note that causing an injury is not necessarily medical malpractice. All of the elements of a medical malpractice action must be present. A health care professional must cause an injury by breaching the professional duty of care to the plaintiff in order to be held liable.
Damages
Persons who successfully sue for medical malpractice are entitled to receive compensatory damages that may include damages for pain and suffering or lost wages. However, under Texas law, the limit of civil liability for damages in a medical malpractice action is $500,000 for each health care provider named in the lawsuit.
Affirmative Defenses
A defendant asserting an affirmative defense in a medical malpractice action admits the existence of negligence, but argues that there are other factors that excuse the defendant's conduct. One affirmative defense used in malpractice cases is conflicting legal duty. For example, a doctor who releases information about a patient's medical condition normally violates the patient's right to confidentiality, subjecting him or her to liability. However, in limited situations, a doctor is legally required to inform others of a patient's medical condition. If a patient suffers from a gunshot wound, the doctor treating him or her must inform the police. A doctor treating a minor who appears to be a victim of child abuse must report the condition to the appropriate authorities.
Consent is perhaps the most frequently asserted affirmative defense in medical malpractice cases. Consent means that the health care professional informed the plaintiff of all risks associated with a particular procedure, the plaintiff consented, and the professional did not go beyond the procedures to which the plaintiff agreed. Doctors and hospitals have tried to protect themselves from malpractice suits by having patients sign consent forms before patients receive treatment. These forms typically include warnings that medicine is an imperfect art and that patients must assume all risks for any procedures. But a person does not give up all of his or her rights by signing a consent form--particularly if the doctor does not fully inform him or her about the risks, goes beyond the agreed to procedure, or fails to abide by well-established medical techniques. A patient also may sue a doctor or a hospital if a person other than the one named on the consent form performed the procedure. The function of the Texas Medical Disclosure Panel, described above, is to create uniformity in how risk disclosures are made. A doctor who asserts that he or she complied with the Panel's guidelines in effect asserts the defense of consent.
Texas' Procedure for Filing a Medical Malpractice Claim
Due to the high cost of defending medical malpractice claims and the corresponding increase in the cost of malpractice insurance, the state of Texas requires that persons intent on filing a medical malpractice lawsuit abide by the following pre-suit procedure:
- At least 60 days before filing a suit based on medical malpractice, the prospective plaintiff must give written notice of his or her claim by certified mail, return receipt requested, to each doctor or health care provider against whom the claim is being made.
- Within 90 days after the claim is filed, the plaintiff must either: (1) file a bond in the amount of $5000 for each health care provider named as a defendant, (2) place cash in an escrow account in the amount of $5000 for each health care provider name as a defendant, or (3) file an expert report for each defendant.
- Within 180 days after the claim is filed, the plaintiff must furnish one or more expert reports for each named defendant. Upon the filing of the expert reports as required, the bond or cash in escrow will be released.
Legal Malpractice
Lawyers are becoming an increasingly popular target for malpractice suits. Although there is no precise definition of legal malpractice, generally a lawyer commits malpractice when he or she fails to provide quality legal services to a client. Filing a lawsuit against an attorney for malpractice is different from filing a complaint about an attorney with the State Bar of Texas. A legal malpractice lawsuit, like a medical malpractice lawsuit, entails proving the professional committed negligence and entitles a successful plaintiff to damages. A complaint filed with the State Bar of Texas is processed through the bar association's lawyer grievance system and, if valid, may subject the attorney to disciplinary action. Damages are not recoverable through the lawyer grievance system. (For more information about the lawyer grievance system, see the How to Hire an Attorney Chapter.)
As in any malpractice lawsuit, a plaintiff suing for legal malpractice must prove the four elements of negligence: duty of care, breach of duty, injury, and proximate cause.
Duty of Care
In general, an attorney owes a duty of care to a person once that person hires the attorney and becomes a client. However, sometimes there can be confusion as to whether an attorney has been hired. Many consumers mistakenly believe that consulting an attorney is the same as retaining or hiring an attorney. It is not. After an initial consultation, consumers are strongly encouraged to clarify with the attorney whether or not the attorney has been retained.
The duty that a lawyer owes a client has two components--competency and fiduciary. The lawyer must exercise the same legal skill as a reasonably competent attorney. No lawyer is expected to know the law so well that he or she can give perfect answers to every legal question, but lawyers are expected to know how to research issues and to recognize the limits of their knowledge. As a fiduciary of a client, an attorney is obligated to treat all information relating to a client's representation as confidential and to zealously represent the client's interests. This duty includes the disclosure of any conflicts of interest that might impair the attorney's ability to represent the client.
Interestingly, some courts are expanding an attorney's duty of care to persons who are not clients. For example, beneficiaries to a will might bring a lawsuit against an attorney who improperly prepared or executed a client's will, resulting in the will being held invalid. Also, depositors in a failed savings and loan may sue attorneys who advised the savings and loan.
Breach of Duty
A lawyer breaches his or her duty of care if the lawyer fails to provide reasonably competent representation or violates his or her fiduciary obligation. While proving that an attorney had a conflict of interest or otherwise violated his or her fiduciary obligations may be straightforward, proving an attorney failed to provide reasonably competent representation is more difficult. Lawyers may disagree about whether a particular course of action was reasonable. And, it may be unclear whether an alternative course of action would have provided a different result. However, there are some behaviors that clearly go beyond the bounds of competent representation. An attorney who simply forgets a filing deadline and permits the statute of limitations to expire, thereby destroying a client's cause of action, is an obvious candidate for a malpractice action.
Proximate Cause
Causation is easy to prove if an attorney misses a deadline or gives advice that is clearly wrong. Proving causation can be more difficult in cases in which an attorney pursues a particular strategy that ends up injuring the client. In suing the attorney, the client (now the plaintiff) must show that his or her injury was sufficiently related to the attorney's breach of duty to be the proximate cause. This may entail trying to prove what would have occurred had the attorney chosen a different course of action. But the variables attendant to proving "what might have been" are numerous, and a defendant-attorney may argue the injury would have occurred regardless of his or her actions.
Suffering an injury as a result of an attorney's representation is not the same as malpractice. An attorney might have caused an injury, but if the attorney did not breach the duty of care, he or she will not be liable for damages.
Damages
Successful plaintiffs are entitled to compensatory and, in rare cases, punitive damages. Punitive damages are awarded only in cases in which the malpractice was willful or particularly malicious.
Accountant Malpractice
Like health care professionals and attorneys, accountants commit, and can be sued for, malpractice. If an accountant fails to provide services at the level expected of a reasonably competent accountant, and the client suffers injury as a result, the accountant may be liable for damages.
Accountant malpractice lawsuits differ in a number of ways from medical or legal malpractice lawsuits. One of the most important differences is the role played by written rules of conduct for the accounting and auditing professions. These rules, known as Generally Accepted Accounting Principles (GAAP) and Generally Accepted Auditing Standards (GAAS), frequently are used in accountant malpractice lawsuits to judge the defendants' actions. While adherence to these rules is not an absolute defense to liability, it is more difficult for a plaintiff to prove negligence by an accountant who acted within the GAAP or GAAS guidelines.
Another difference is that many accountant malpractice lawsuits are based on violations of federal and state statutes relating to the sale of securities. Financial statements generated by accountants frequently are used in connection with securities offerings and often are submitted with annual reports or other periodic filings companies must make in compliance with the Securities and Exchange Commission. If the financial statements are erroneous and lead to a negative market impact, investors may try to recoup their losses by asserting claims against the accountants who prepared the financial statements. The statutes most commonly used to bring such claims are the Securities Act of 1933, the Securities Act of 1934, and the Racketeer Influenced and Corrupt Organizations Act (RICO). A detailed discussion of these Acts is beyond the scope of this chapter, but an attorney experienced in accountant malpractice lawsuits can advise potential plaintiffs of the duties accountants have under these laws.
Engineer and Architect Malpractice
Engineers and architects also can be sued for malpractice. If a structure proves to be unsafe, the engineer responsible for building it or the architect who designed it can be held liable. Also, if an engineer or architect reviews a structure for a prospective buyer and carelessly misstates the structure's soundness or durability, he or she can be held liable.
However, unlike medical and legal malpractice lawsuits, the theory of recovery in a lawsuit against an engineer or architect likely will be contract-based as opposed to tort-based. That is, the duty owed to a property owner derives not from the common law theory of negligence, but from a contract between the property owner and the engineer or architect. It is, therefore, important for a person to have an attorney review such contracts before signing. An attorney also should review any modifications to a contract before they are finalized. Seemingly innocuous language can substantially change a professional's responsibilities and potential liabilities.