Legal Question in Medical Malpractice in Texas
surgical error
My mother had kidney cancer and the surgeon was to remove the entire kidney. He advised the family after the surgery he had to remove the entire kidney and his own notes and hospital records indicate same. However, it was discoverd due to complications a few months later, he did not remove the entire kidney but only a portion of it and left it hooked up to the renal artery. The piece of kidney continued to filter blood and the body developed a urinoma to hold the urine. She recently underwent a 2nd surgery and may require another one. Do we file a complaint first with the Texas Board of Medical Examiners or do we place the Dr.s and hospital on notice. I think you have to give them 60 days notice before filing suit. She is 78 years old and has no loss wage claim but her medical damages are already approaching $100k. She is on SS benefits and lives with me now. I am aware of the $250k cap on damages per def according to HB 4. We feel we have a very good case against the surgeon, the assistant surgeon and the hospital.
Please advise if we file a complaint against the Texas Board of Medical Examiners first or send a notice letter to the DRs. first and then file the lawsuit.
2 Answers from Attorneys
Re: surgical error
It may sound unnecessary in this case, but medical negligence can only be proven through the opinion of a qualified physician; in this matter, a surgeon. Filing a grievance with the medical board should get the doctor's attention, but you should get the case to a qualified attorney for review as soon as possible. There are many pitfalls under the current laws in effect in Texas that can eliminate an otherwise valid claim.
Feel free to contact Ashley at our office to set up an appointment,if you would wish to discuss this further.
Re: surgical error
I am very sorry to hear about the medical problems your mother has been having. The unfortunate news is that we live in Texas, a state that, due to our current governor, Rick Perry, and his predecessor, George Bush, is so pro-doctor and anti-patient, medical malpractice claims have become very difficult to prove and win. You already know that our legislature, under great pressure from Gov. Perry and the medical lobby, passed Proposition 12 in 2004, and the voters of this state approved it. The practical effect of this legislation is to make it even more difficult to find a doctor who is willing to testify against another doctor (which is an essential part of a malpractice claim). In short, all medical malpractice cases in Texas require that your mother, the injured party, prove that the doctor was negligent and that it was this negligence that caused her injury. The case cannot be based upon your feelings, suspicions, or suppositions. It must be based on expert testimony from a doctor that her surgeon was negligent. Getting another doctor to state that a fellow doctor was "negligent" is more difficult than you might think.
Your safest bet would be to contact me at your earliest opportunity. I have contacts throughout the state and can in all likelihood locate a doctor who is willing to testify against your mother's doctor.
Please remember that the statute of limitations requires that your mother settle her claim or file a lawsuit on her claim within two years of the date of her doctor's negligence or her claim will be barred forever.
I look forward to hearing from you.
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