Medical Malpractice

How is the Standard of Care in Medical Malpractice Applied in the State of Texas?

Any medical professional who actively participates in the treatment and care of patients has an obligation and duty to adhere to a professionally established standard of care. When a professional fails to comply with the standard of care, the results can be devastating for the patient and the family. This can result in medical malpractice cases against the medical care provider(s). There is no medical definition for “standard of care” although the term is firmly established in law and is defined as “the caution that a reasonable person in similar circumstances would exercise in providing care to a patient” (The Dictionary.com, 2007). To the physicians, the “standard of care” is the diagnostic and treatment process that a doctor should practice for a given illness, patient, and set of circumstances. The term “standard of care” represents an essential component of an action in medical malpractice in proof that the doctor in question failed to provide the required standard of care under the circumstances (Sullivan, W., 2003). Medical malpractice is a broad term generally used to describe any treatment, lack of treatment, or other departure from accepted standards of medical care, health care, or departure in safety on the part of a health care provider that causes and/or results in harm to a patient. In law, medical malpractice is considered a specific area within the general domain of negligence. It requires four conditions (elements) to be met for the plaintiff to recover damages. These conditions are, one, duty; second, breach of duty; third, harm; and lastly, causation. Medical malpractice or medical negligence occurs when a health care provider fails to provide care or treatment to the patient according to the governing standard of care and the patient suffers an injury. Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Medical malpractice actions can be brought by the injured patient against any responsible licensed health care provider including doctors, counselors, psychologists and psychotherapists. If the provider for the misdiagnosed patient(s) failed to diagnose a disease or a medical condition and failed to provide appropriate treatment for a medical condition or was unreasonably delayed treating a diagnosed medical condition they can be brought to a lawsuit (Sullivan W., 2003). The medical malpractice laws in the United States have been traditionally under the authority of the states, not the federal government. And unlike many other areas of the law, the framework and legal rules governing malpractice actions were, prior to the last thirty years, largely established through decisions in lawsuits in state courts rather than the bill by state legislatures. Legal rules established by the courts generally are referred to as “common law.” Because the legal precedents that established the case law in one state have no weight in any other state, the rules for handling medical malpractice cases varied from state to state, although many of the principles were similar. The medical malpractice law is part of the “tort law “that deals with injuries to people or property, medical malpractice cases are an example of the tort known as “negligence.” The principal of negligence is that people should be careful in what they do, and if they are not careful, they should be held responsible for the injuries that can result from their negligent conduct. To win a negligence lawsuit that involves medical care, the injured person needs to prove that they received substandard medical care that caused their injury. Before a suit can be filed, a person who is injured during treatment must determine whether or not they have been harmed by inadequate care. Physicians and other providers generally are not legally required to tell their patients that they were hurt by medical care that was not as good as it should have been. Patients who suffer the injury or their families usually must consult with others to make the determination of an injury occurring due to negligence. If the patients, were under the care of multiple health care providers need to determine which, if any of these providers contributed to their injury, if that is possible (Moffett & Moore, 2011). In Texas, the standard of care must be established, by expert testimony or witness, so the jury can determine whether the defendant-physician's conduct departed from the standard as to constitute negligence. A jury of persons untrained in the medical profession is not qualified to understand and develop a "reasonably prudent physician" standard without being advised of the applicable medical standards of care and other factors involved. An expert’s testimony and accompanying witnesses are needed to educate the jury on the standard of care required by healthcare providers. This will help establish the “standard of care” and enable the jury to determine whether the physician's conduct diverged from the medical standard of care to such an extent and degree as to constitute negligence or malpractice (Moffett & Moore, 2011).

In Texas, the Article 4590i, section 1.03(a) (8) a physician is defined as "a person licensed to practice medicine in this state." This definition resulted in an argument in the courts that all expert testimony must be provided by a physician who is licensed to practice medicine in the State of Texas. (Neasbitt v. Warren, 2000) To dissolve the argument, the Governor of Texas signed a bill that prevents parties from arguing that Texas doctors must provide expert testimony. House Bill 504 amends Article 4590i, section 14.01 to read "’physician' means a person who is: (1) licensed to practice medicine in the United States; or (2) a graduate of [an accredited] medical school." In the state of Texas, physicians of one school of medicine are permitted to testify in a malpractice action against physicians of another school under certain circumstances; if the subject in inquiry is similar, in the use of certain machinery, or if the method of treatment and care are universal or the same as in the witnesses’ school. (Moffett & Moore, 2011).

The Texas Supreme Court in (Hood v. Phillips, 1977), considered various theories for establishing the standard of care and ultimately adopted the "reasonable and prudent physician" standard. In doing so, the court rejected the notion of a "poll" of professionals. The court held that the issue for jury determination and the standard for expert opinion is that of good medical practice. In Texas the “standard of care” can be established by the defendant being the physician's own testimony. For example, in (Williams v. Bennett, 1980), the defendant-physician testified that discharging a patient with a severe infection would be inappropriate medical practice. The plaintiff had no need to then introduce independent expert testimony where the defendant had testified to the appropriate principles and practices, which had lead to medical record entries and post-treatment statements of the defendant to be admissible evidence to establish the medical standard of care. In the state of Texas, the Texas legislature had passed the Medical Liability and Insurance Improvement Act (MLIIA) in 1977, which was codified as Article 4590i of the Texas Revised Civil Statutes (“Article 4590i”). Later on in the years, parts of the statute had been declared unconstitutional and other parts have been judicially refined. In 2003 the Texas Legislature made significant changes to MLIAA and re-codified it in the Civil Practice and Remedies Code and adopted a tort reform bill in 2003 that codified most statutes applicable to the broad class of "health care liability claims" many significant changes were made according to bill. The issues addressed by the bill included, limits on noneconomic damages in medical liability cases to $250,000 for physicians; product liability reform, punitive damages; medical liability reform joint and several liability; and class action reform (Texas Medical Association, 2011). In the state of Texas, a malpractice lawsuit must be brought within a legally prescribed period, since the medical malpractice lawsuits are governed by a statute of limitations. The statute of limitations puts a time limit on how long a patient can wait and still be able to file a lawsuit. Under Texas medical malpractice law, a patient who has been injured during the course of treatment must file suit within two years after the malpractice incident occurred. However, if the patient cannot determine when the incident that caused injury occurred, the limit is set to two years after the completion of treatment or hospitalization. Under the statute of limitation, injuries to minors below the age of twelve a malpractice suit must be commenced by the date of the minor's fourteenth birthday. But this was declared unconstitutional. The statute of limitation for minors will not begin to run until they reach 18 years. “The medical malpractice statute of limitations applies to health care claims, even if the injury was not discovered in time to bring a cause of action.” This is a strong departure from the common law “discovery rule” which fixes the start of the statute of limitations period when the injury is discovered or should have been discovered, not when the negligence occurred. However, if the plaintiff can prove that the negligence was fraudulently concealed, then the statute of limitations can be extended. (Texas Medical Association, 2011) Since September 2003, the plaintiff has to follow certain procedures required by Tex. Civ. Prac. & Rem. Code, Sections 74.351 requirements relating to Expert Reports, under Article 4590i. The plaintiffs must produce an expert report by the 180th day after the date of filing. If a plaintiff fails to produce such a report, he or she must voluntarily non-suit each defendant for which no expert report was produced and may be liable for all legal cost to the defendants (Texas Medical Association, 2011). The state of Texas has adopted the doctrine of “modified comparative negligence” for tort claims. This means if the person bringing the claim is judged to be greater than 50 percent responsible for the injury, he or she may not recover any damages at all. If the percentage of responsibility is judged to be 50 percent or less, the claimant’s recovery is diminished in proportion to this percentage. (Texas Medical Association, 2011). In the recent years the “standard of care” has been drastically changing and will continue to change with each new bill being passed and policies being made. With the new health care reform and bills being passed maybe the citizens of Texas, who voted for the reforms bill in September 2003. When they were told, if passed, the new law would reduce the costs of medical care, maybe the citizens will finally get lower and protection with The Patient Protection and Affordable Care Act (PPACA) which was also passed in March 2010 but still is slow in being implemented.(“Patient,” n.d.) The tort reform benefited the physicians and liability insurance companies since caps were imposed and doctors have been held less accountable for their errors. The number of payments made on behalf of Texas doctors to compensate patients for medical errors fell more than 50 percent between, the years of 2003 to 2010 and the value of those payments fell by nearly 65 percent, without adjusting for inflation, due to which insurance companies have cut doctors’ malpractice insurance premiums. This leads us to an interesting question. What about the people, when will they get the benefit of the health care reform?

REFERENCE

1. Hood v. Philips 554 S.W.2d 160 (1977) Supreme Court of Texas 2. Moffett, P., & Moore, G. (2011, February). The standard of care: Legal history and definitions. Retrieved from http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3088386/ 3. Patient Protection and Affordable Care Act (n.d.). in Wikipedia online. Retrieved from http://en.wikipedia.org/wiki/Patient_Protection_and_Affordable_Care_Act 4. Sullivan. (2003). Standard of care: Does it exist in every malpractice case? ED Legal Letter retrieved from http://www.sullivanlaw.biz/Docs/Standard of Care.pdf 5. Texas Medical Association. (2011). Summary of Texas medical professional liability law. Retrieved from http://www.texmed.org/Template.aspx?id=2821 6. The Free Dictionary.com. (2007). Standard of care. Retrieved from http://legal- dictionary.thefreedictionary.com/standard of care 7. West, (2007) Speiser, Stuart M., et al., American Law of Torts, Vol. 4, Sec. 15.10 8. Williams v. Bennett, 610 S.W.2d 144 (Tex.1980)