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Personal Injury

  • Medical Malpractice (Professional Liability)

Professional Liability and Medical Malpractice

A “professional” describes a member of a specific profession, as part of which they perform services that require special knowledge or skills. Common examples of professionals are: doctors, dentists, nurses, lawyers, accountants, engineers, architects, and builders. Most professions are defined by law in the Texas Occupations Code. Professionals are usually licensed and regulated by boards, for example, the Texas Board of Medical Examiners. When a plaintiff is injured by a professional’s negligence while receiving their professional services, the plaintiff can bring a lawsuit for malpractice. While a malpractice suit can be brought against any kind of professional, we will focus here on medical malpractice.

Medical Malpractice

In a medical malpractice lawsuit, a medical professional or institution is sued for committing a negligent or intentional wrongdoing while providing professional medical services. The lawsuit can be based in violation of a statutory duty, breach of contract, or negligent or intentional tort. Professionals and professional institutions (like hospitals) can also be subject to malpractice lawsuits based on vicarious liability (link to vicarious liability article). Below are a few of the ways a medical professional can be sued.

  1. Violation of Statute

    Injured plaintiffs may bring lawsuits against professionals for violation of statutory duties, or duties that are imposed by specific laws. For example, Chapter 74 of the Texas Civil Practice & Remedies Code creates a statutory duty of informed consent. Informed consent describes the duty to provide adequate and reasonable information to a patient about the risks of a medical procedure. Healthcare providers can be held legally responsible for breaching their statutory duty of informed consent if they fail to appropriately explain the risks of a medical procedure to a patient [1].

  2. Breach of Contract

    Usually, a relationship between a professional and a client involves a contract between the two parties that describes the services to be rendered. In that case, a plaintiff could file a lawsuit against a medical professional for breach of contract. Regardless, most malpractice lawsuits are still based in torts (like negligence) instead of breach of contract.

  3. Negligent Torts

    Negligence is most often the basis of a malpractice lawsuit. The plaintiff’s lawyer must establish four elements for a successful negligence claim:

    1. The professional owed a duty of care to the patient
    2. The professional breached that duty
    3. The breach was the proximate cause of the patient’s injury
    4. There was an injury
      1. Duty of Care for Professionals

        While the other three elements of a negligence claim are the same for professionals as for anyone else, professionals are subject to special rules when it comes to duty owed, commonly known as “the standard of care.” As members of their profession, professionals must have special knowledge, education, and skill regarding that profession. Professionals are expected to use that knowledge and skill when providing professional services, and are therefore held to a higher standard of care. It's important to note that a professional is not held responsible for an injury caused by an error in judgment when that judgment was made using the requisite level of care. A malpractice lawsuit is only appropriate when the professional does not exercise appropriately reasonable care and skill for the circumstances.

        A physician providing professional medical care is expected to behave as another reasonable physician would to avoid harming others in a similar situation. The standard of “reasonable physician” is much higher than the usual “reasonable person” standard that non-professionals are held to. When suing for malpractice, the plaintiff’s lawyer must prove what a reasonable doctor of the “same school” of practice as the defendant would have done under the same or similar circumstances. The 1965 Texas Supreme Court case, Hart v. Van Zandt, provides an example of the “same school” rule. In that case, the court distinguished that doctors who are licensed to practice medicine with an M.D. degree are in the same school of practice, but an osteopath physician who does not hold an M.D. degree is not in the same school of practice [2].

        Medical professionals are also subject to the “locality rule,” which limits the standard to that of a reasonable medical professional in the same or similar community. The plaintiff’s lawyer must have an expert testify in court to show that the professional did not abide by the standard they should have, using the same school and locality rules. For example, the 1980 case Henderson v. Heyer-Schulte Corp, in which a plastic surgeon in the Houston area used a surgical technique in 1974 that was questionably out-of-date, causing injury to his patient [3]. The court decided that despite evidence that surgeons elsewhere in the country considered the technique out-of-date at the time, the only appropriate standard to hold the doctor to was that of a reasonable plastic surgeon in the Houston area.

      2. Third Parties

        Sometimes professionals can owe a duty to “nonclient” third parties, who are not in direct receipt of the professional services. For example, in a situation where a third party hires a professional to provide services to someone else, the professional might owe a duty to both the client and the nonclient third party. However, medical professionals very rarely owe a duty to anyone who is not their patient. If the physician causes injury to someone other than a patient, that patient will not have a malpractice claim, but a claim for negligence only.

  4. Other Torts

    A lawsuit for gross negligence requires a situation with an extreme risk of danger, and for the actor to be aware of that danger but go through with the act anyway. A lawsuit for malice requires the defendant to have acted with specific intent to cause injury. Professionals can also be sued for committing intentional torts. Medical professionals can be sued for intentional torts such as battery or abandonment. An example of a charge for assault and battery would be a physician conducting an operation on a patient without receiving the appropriate consent. Abandonment is a type of negligence, wherein a medical professional discontinues treatment of a patient without suitable warning and without making alternate treatment arrangements [4]. If the plaintiff’s lawyer can show a professional acted in gross negligence, malice, or fraud, the court may award exemplary damages.

  5. Vicarious Liability

    Professionals, like all other employers, can be vicariously liable for the unlawful acts of their employees. For example, the 1953 Texas Supreme Court case Porter v. Puryear, in which a physician was held liable for the negligent behavior of an employee while injecting a patient with anesthesia [5]. Hospitals can also be held vicariously liable for the acts of their employees, but usually only non-physician employees. Physicians are generally considered independent contractors, as opposed to employees of hospitals.

Damage Caps

Chapter 74 of the Texas Civil Practice & Remedies Code sets limits on the amount of damages a plaintiff can recover in a medical malpractice case [6].

  • Damages based on medical expenses are capped at the amount the injured party was actually charged.
  • “Non-economic” damages, like for loss of enjoyment of life, emotional anguish, disfigurement, etc., are limited to:
    • $250,000 for each claimant from a physician
    • $250,000 for each claimant from a single institution, $500,000 total for all institutions together
  • Exemplary damages may be awarded upon showing of fraud, malice, or gross negligence.
  • In wrongful death and survival actions based on medical malpractice, damages (including compensatory and punitive) are limited to $500,000 total per claimant.

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