Texas

Statute of Limitations

Medical Claim Generally:

“No health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care.” However, the discovery rule gives one reasonable time to discover their injuries and file suit. [Tenet Hospitals Ltd. v. Rivera (2014)] “A claimant must bring a health care liability claim not later than 10 years after the date of the act or omission that gives rise to the claim. This subsection is intended as a statute of repose so that all claims must be brought within 10 years or they are time barred.” [CPR §74.251]

Minors:

“Minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim.” [CPR §74.251]

Wrongful death:

“A person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person.” [Texas Civil Practice and Remedies Code § 16.003]

Damage Caps

Non-economic damages are capped at 250k for 1 or more physicians plus 250k for a health care institution being sued too. However, all damages (except for expenses for necessary medical hospital and custodial care) have a (second) cap if talking about a wrongful death case of 1.9M [Texas Civil Practice & Remedies Code Section § 74.301; 74.303; CPRC § 41.008]

Attorney Fee   Caps

There are no attorney fee caps in Texas for a medical malpractice case.

Pre-suit Requirements

“Any person or his authorized agent asserting a health care liability claim shall give written notice of such claim by certified mail, return receipt requested, to each physician or health care provider against whom such claim is being made at least 60 days before the filing of a suit in any court of this state based upon a health care liability claim. The notice must be accompanied by the authorization form for release of protected health information as required under Section 74.052.” [CPR §74.051] An expert report is required not later than the 120th day after the date each defendant's original answer is filed [CPR §74.351]

Expert

Qualifications

An expert is qualified if the physician “is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose; has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.” In considering if the physician is qualified, “the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness: is board certified or has other substantial training or experience in an area of medical practice relevant to the claim; and is actively practicing medicine in rendering medical care services relevant to the claim.  [CPR §74.401]

Negligent 

Credentialing Claims

The Texas Medical Practice Act provides immunity for credentialing decisions by health care entities absent a showing of malice. Romero v. KPH Consol., Inc. established that in order to hold a hospital responsible in its decisions in leaving a doctor on staff, etc. have to prove that they had the specific intent to harm (malice). Therefore, although there is technically a negligent credentialing cause of action, it is almost impossible to prove intent because the information one would need to prove this is privileged.