Medical Malpractice

Not every bad outcome is malpractice, and this is the point families most often have to work through first. Medicine carries risk, illnesses progress, and some patients do badly despite excellent care.

Malpractice is narrower. It means a provider fell below the accepted standard of care — and that the shortfall caused harm. In Texas, proving it means establishing four separate elements, and a claim fails if any one of them is missing.

• Duty: The doctor, nurse, pharmacist or hospital owed you a duty of care. This arises from the provider–patient relationship and exists as soon as care begins.
• Breach: A provider departed from the accepted standard of care — what a reasonably careful provider in the same specialty would have done in the same circumstances.
• Causation: That departure caused the injury. This is usually the hardest element, because a patient who was already unwell may have had a poor outcome regardless.
• Damages: The injury produced real, provable harm — medical costs, lost income, future care needs, disability, or death.

There is no single figure, and any firm that gives you one before reading your records is guessing. What can be explained is how Texas structures it.

Texas law caps non-economic damages — pain, suffering, disfigurement, loss of enjoyment. Economic damages are not capped: medical costs already incurred, future medical and attendant care, therapy, home and vehicle modification, and lost earning capacity. In cases involving a lifelong injury, the economic side is usually far the larger of the two.

How the caps apply to a particular case, and to which defendants, is a question for an attorney reading the actual file.

Texas medical-malpractice claims are governed by Chapter 74 of the Civil Practice & Remedies Code, and its procedural requirements are strict enough that meritorious cases have been lost on them alone.

• Texas Civil Practice & Remedies Code Chapter 74 (the Texas Medical Liability Act) governs all claims, imposing strict procedural requirements on plaintiffs.
• Texas law requires an expert report from a physician qualified in the relevant specialty early in the case, on a strict statutory timeline — failing to meet it can end the claim.
• Filing deadlines apply, and for cases involving a minor child they can be complicated and fact-dependent — families should speak with a qualified attorney promptly so the applicable deadline can be evaluated.
• Texas law caps non-economic damages; economic damages — medical costs, therapy, future care, lost earning capacity — are not capped. How the caps apply to a particular case is a question for an attorney.
• Texas law requires pre-suit notice to healthcare providers before filing.

Honestly, often not — and you should expect a firm to tell you so. Texas malpractice cases are expensive to bring, require expert physicians from the relevant specialty, and turn on causation that is genuinely difficult to prove.

The cases worth pursuing tend to share features: a serious and lasting injury, a documented departure from what should have happened, and a record that connects the two. A free review exists to establish whether those are present in your file, and most people who ask are told there is no case to bring.

That answer costs you nothing, and it is worth more than an encouraging one.

Almost everything turns on documentation, because it was written as events happened rather than remembered afterwards.

A review typically covers admission and triage records, physician and nursing notes, medication administration records, laboratory and imaging results, operative and anesthesia records, monitoring data, documented communications and escalation, and discharge and readmission records.

Timed entries carry particular weight. Medication administration times, order timestamps and theatre logs are recorded precisely and are difficult to reconstruct after the fact, so they anchor the sequence that everything else is read against.

Thomas & Wan is a women-owned Houston firm with two partners — Linda Laurent Thomas and Michelle W. Wan — and more than 60 years of combined experience. The partners handle the cases. You are not passed to a case manager after signing.

The firm focuses on medical malpractice rather than taking every kind of injury claim, and has recovered more than $150 million for clients. Cases are handled on a contingency-fee basis, so there is no fee unless we recover.