The primary legislative code that deals with Medical Malpractice in the state of Texas is Chapter 74 of the Civil Practice and Remedies Code. Named “Medical Liability” the chapter explains everything from what your doctor or healthcare physician can disclose about you to the liability that they have.
Texas Tort Reform
Texas made national headlines when they pushed through a massive change to their Tort Reform in 2004, via a bill known as the Medical Malpractice and Tort Reform Act of 2003. The bill took the conservative view that healthcare costs are being driven up because the medical liability of doctors was too high, resulting in their need to obtain malpractice insurance that was extremely expensive.
This creates large overhead costs for physicians and limits their potential to make money. As a result of the expensive medical insurance required, physicians are dissuaded from entering the field and those that do are forced to charge exorbitant costs to cover their insurance costs. Well, the theory proved half right.
The good news for Texans is that physicians did relocate to the state as a result of the reform. As TexMed.org points, while other states are struggling to find physicians, the state received a much needed influx of doctors. This can be checked by looking at new medical licenses issued by the state in a year over year comparison. In 2017, the state issued 4,719 new medical licenses. An uptick of more than 100% from the last year, 2002, when the old law was in effect (2038).
On the other hand, the Tort reform only decreased the cost of medical treatment by less than 1% for Texans.
Cost of Medical Mal Insurance In Texas
In Texas, doctors must obtain Medical Malpractice insurance in case they or one of the nurses in their practice commits an error. Errors in the healthcare industry are unbelievably common. Errors in the medical field are the sixth leading cause of death across all Americans.
As a result, patients have a right to sue the doctor, hospital or firm for which they improperly given the negligent treatment. Medical Malpractice, or Med Mal, rates are determined based on the risk associated with the type of medicine. There are more than a dozen different specialities but here’s a handful of the average costs and minimum costs for five different fields. Notice Surgery, really anything that involves an incision, greatly escalates the amount of insurance needed (and wanted) for physicians.
|Type of Medicine
|Gynecology Major Surgery
Statue of Limitations for Medical Malpractice
You may be wondering how long you have to file a suit of medical malpractice in the state. In Texas, the statute of limitations is two years from the time you first stopped receiving treatment. However minors are eligible to file a medical malpractice suit anytime up until their 14th birthday.
All claims of medical liability, however, are no longer valid if ten years have passed since the treatment was completed. Effective Sept 1st, 2003 and current through 2023 legislative session barring changes by the court system.
Improper Release of Personal Health Information
A major issue in health care is the question of personal health information and disclosures. As outlined in section 74.052 of the Civil Practice and Remedies code, identifies exactly what form must be filled out (and what the form must say) for the release of protected health information to occur.
That information must include the basics, such as name, address, date of birth..etc. But also the form must say the following in the exact same words.
After that form is submitted there are five categories of people who are allowed to see your medical records. People are often surprised just how large the net is that is being cast:
- Physicians or health care providers providing care or treatment.
- Any liability insurance entity providing coverage to any physician.
- Any ‘experts’ that work for the physician or healthcare team.
- Any attorneys OR people that work for the attorney (paralegals, assistants, secretaries) that are involved with the healthcare provider.
- A “trier of the law”, or someone tasked with making legal rulings, that is involved in a trial where someone is seeking legal rulings.
Liability of Physicians During A Pandemic
A special addendum to the Texas Civil Practice & Remedies Code came in 2021 when they adjusted liabilities for first responders and healthcare providers during the time of a pandemic. By “pandemic”, the legislation means any period where the president of the country or governor of the state has declared an “emergency.”
Which healthcare officials are exempted?
All of the below healthcare workers are absolved of liability during pandemics, if they are being treated for the associated pandemic disease, unless in cases of extreme negligence (what the state refers to as ‘Gross Negligence’) or where one can prove intentional harm was done by the associated healthcare worker.
(i) a registered nurse;
(ii) a dentist;
(iii) a podiatrist;
(iv) a pharmacist;
(v) a chiropractor;
(vi) an optometrist;
(vii) *Health care institution.
The state further defines a Health Care institution as essentially any medical community ranging from hospices to hospitals.
What is Considered Gross Negligence?
This is the operating definition in all of Texas law, even before the pandemic, but since it’s relevance to the new pandemic law, we’ll highlight it in this section. Note this section may be moved in the years following the pandemic.
Gross Negligence, as the state refers to it, is when one acts or fails to act in the following way:
(A) When viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others.
(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.
In english: When a healthcare official behaves in a way that is extremely dangerous and the healthcare official, objectively, really should’ve known better.
The importance here the difference between negligence and gross negligence. The “gross” here is simply adding another level of negligence beyond mere opinion. For example, a nurse was supposed to clean a patient’s feeding tube. That would be negligence, however if the nurse then notices this oversight (and this can be proved) and then does not attempt to intervene at this point, this would now be considered gross negligence.
With the ongoing pandemic still raging as of September of 2021, we’re sure this page is going to be active over the next several months in the wake of the tort claims. Please contact us on the about page if you catch any errors or know of any updates we need to make or statements we need to clarify.