What is Considered Medical Malpractice?

Reviewed by Louis Patino, JD, DC

Louis Patino, JD, DC
A former U.S. Army Combat Medic, Dr. Louis Patino is a distinguished attorney recognised by Top Attorneys of America, Expertise, and the American Institute of Trial Lawyers. He has a Doctor of Jurisprudence from Texas Southern University and a Doctor of Chiropractic from Parker College of Chiropractic.

When you visit the doctor or go to the hospital, you expect an appropriate diagnosis or treatment. You certainly don’t expect to leave worse off than when you went in, but that’s what can happen when a healthcare professional is negligent or reckless.

If you’ve suffered illness or injury due to a medical practitioner’s reckless, careless, or negligent actions, you may have a medical malpractice case. But what constitutes medical malpractice, and how do you go about making a claim?

What Constitutes Medical Malpractice in Texas?

Before looking at what qualifies as medical malpractice, we first need to define it. Texas law refers to a medical malpractice suit as a “health care liability claim.” The definition of this is:

“A cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant.”

Put simply, then, medical malpractice itself is an action — or inaction — that fails to meet the appropriate standard of medical care and results in injury, illness, or death.

Medical malpractice can be conducted in many ways. It can involve medical practitioners such as general doctors, surgeons, and nurses, as well as dentists, podiatrists, pharmacists, chiropractors, optometrists, and hospital administrators.

How Common Is Medical Malpractice?

Medical malpractice is shockingly common. According to one study, more than 250 thousand people die every year due to medical errors, making it the third-leading cause of death in the United States — behind only heart disease and cancer.

However, this doesn’t account for the many more who do not die but are still injured, whether they are prescribed the wrong medication and it causes a reaction or a medical instrument is left in their body during surgery.

The Difference between Recklessness and Negligence

It’s vital to note that most of these cases do not involve recklessness. It’s rarely the case that a surgeon decides to turn up to work intoxicated and perform surgery, although it does happen. This would be a reckless act because it’s a willful disregard for a patient’s safety.

In many cases, medical malpractice happens because a professional is negligent. A nurse might accidentally give you the wrong medication and then walk off to treat another patient without waiting to see if there is any adverse reaction. It’s not on the level of recklessness, but it’s still a serious offense, and the standard remains the same.

If another nurse in the same situation had checked the medication before administering it, the incident could have been prevented. Therefore, the act of not checking the medication falls below the appropriate standard of care, and it would be considered medical malpractice.

What Types of Behavior Are Considered Medical Malpractice?

What qualifies as medical malpractice typically falls into one of three categories:

  1. A Failure to Diagnose

Incorrectly diagnosing a health condition can have severe consequences for a patient. For example, a patient may visit their doctor several times with back pain. The doctor examines them, diagnoses the patient with constipation, and prescribes diet changes and over-the-counter laxatives. Their condition fails to improve, so they visit another doctor. After an examination, this doctor immediately refers the patient for a scan, which confirms they have cancer. By the time it was diagnosed, the patient could have already begun treatment. 

  1. A Failure to Warn

As a patient, you’re entitled to be told every known risk for any treatment. For example, if you have an operation and encounter a risk that you were not warned about before surgery, and you would have refused the surgery had you known about it, it might qualify as medical malpractice.

  1. Administering Improper Treatment

Much of what constitutes medical malpractice falls into the category of administering improper treatment. If a medical professional performs a treatment that no other professional with the same qualifications, in the same situation, would provide, you may be able to file a medical malpractice — or health care liability — claim.

A common example of improper treatment is prescribing the wrong medication — or the correct medication in the wrong dosage. Surgical errors can also fit into this category, such as operating on the wrong body part, operating on the wrong patient, and leaving gauze or medical tools inside the body.

What Is Needed for a Medical Malpractice Claim?

To successfully claim compensation for medical malpractice, you need to meet several criteria. You must show:

  • There is a doctor-patient relationship — or a relationship between you and the medical professional, be that a nurse, dentist, chiropractor, or otherwise
  • The medical professional was negligent or reckless
  • This negligence or recklessness caused an injury or harm — and without this reckless or careless act, the injury would not have happened.

The injury or harm must also result in damages. In a personal injury claim, you can claim these damages from the party responsible. Typical damages include lost wages, medical bills, pain and suffering, and mental anguish.

To meet this burden of proof and show that your injuries constitute medical malpractice, you will need evidence of your treatment, such as medical bills, records, and invoices.

Medical experts can testify that your injury was caused by incompetence or care that deviated from the appropriate standard.

Our medical malpractice lawyers in McAllen can secure the testimony you need to prove your case.

Starting Your Medical Malpractice Case

Now you know what is considered medical malpractice, how do you go about filing a claim?

Statute of Limitations

Each state has a statute of limitations for both criminal and civil cases. This outlines how long you have to make a claim. If you miss this deadline, you release the party responsible from liability, meaning you cannot bring a claim against them — even if you have substantial evidence they were at fault.

In Texas, the statute of limitations for personal injury — including medical malpractice — is two years from the date the negligent or reckless behavior occurred. For example, if you were prescribed the wrong medication in December 2020, you would have until the same date in December 2022 to file a claim.

However, there are exceptions to this rule. Sometimes, evidence of medical malpractice isn’t discovered until years later. One example is if you have surgery and a sponge or piece of gauze is left inside your body. It might not be until years later that you have a scan, and a doctor discovers it. In this case, the standard two-year statute of limitations may not apply, so make sure you speak to a Texas personal injury lawyer to know where you stand.

The Expert Report

After the healthcare provider (whether that’s a doctor, nurse, dentist, or other practitioner or party) has responded to your intent to claim, you must file an expert report within 120 days. This report should include a summary of at least one expert’s opinions on the appropriate standard of care, how the healthcare provider breached that standard, and how the breach resulted in your injuries.

This expert must have the necessary qualifications and training to offer these opinions. For example, a heart surgeon could act as an expert in a case against another heart surgeon — an orthopedic nurse could not.

If you do not file this report — or it’s not up to standard — the court will dismiss your claim, and you will not be able to file another lawsuit.

Identifying what constitutes medical malpractice, sourcing expert testimony, and proving negligence is difficult and complex, so it’s vital to consult an experienced and compassionate medical malpractice lawyer.

If you’re the victim of medical malpractice, you deserve justice and compensation for your injuries. Contact our personal injury lawyers in McAllen and San Antonio today for a free, no-obligation case review.

Patino Law Firm
1802 N 10th St
McAllen, TX 78501

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