Your Galveston Medical Malpractice Case: The Basics

Dark and stormy nights are not new to anyone living on the gulf, but this one has a certain grim foreboding to it. Your sense of doom comes true when an out of control truck comes careening down Harborside Drive on the wrong side of the road. You are able to miss the truck but not the telephone pole, and the next thing you know you wake up in a cot at a local hospital. Doctor says a couple pins in your leg will do the trick, but post-surgery X-rays reveal a tiny sponge the surgeon left behind. Now it's getting infected and the doctor wants to scoop out the whole mess, leading to months of recovery time and serious pain (not to mention medical bills). You know you have legal rights, and FindLaw gives you straight answers in this article on your Galveston medical malpractice case.

Medical Negligence

Most medical malpractice lawsuits assert that a healthcare professional's conduct failed to conform to the standard of care demanded by his or her profession. Malpractice governs, for example, a doctor's failure to diagnose the patient correctly, an unreasonable delay in treatment, or improperly treating the patient.

Success depends on demonstrating how a hypothetical reasonable competent doctor would have acted under the circumstances that led to your injury. This hypothetical doctor acts like a reasonably competent and skilled health care professional would have under the circumstances, called the standard of care. Then you must point out exactly how the real doctor failed to live up to this expected standard of care.

Convincing a judge or jury to trust your standard of care can be tricky; after all, you are no doctor, and neither are they. That's why most medical malpractice cases relay on an expert witness in the applicable medical field, who can analyze your case for negligence, provide testimony as to the applicable standard of care and detail how the doctor failed to meet this expected standard.

Informed Consent

Individuals generally must receive consent before touching another in a potentially harmful manner, and giving a patient an injection or cutting into their flesh is no different. Except for some emergency situations doctors must receive a patient's permission before performing a treatment or else you can sue them for battery. However, medical consent is more complicated than simply getting permission because of the specialized knowledge required to make informed medical decisions. Thus, the healthcare profession must share his or her knowledge of the risks and alternatives to the procedure before a patient's consent will be deemed valid.

For a patient to give informed consent, three elements must be met:

  • the doctor must disclose all the risks, benefits and alternatives of the treatment;
  • the patient must comprehend the disclosure, and;
  • the patient must execute a voluntary (non-coerced) waiver consenting to the treatment.

Who to Sue?

The negligent healthcare professional is the most obvious defendant, but the organization behind the doctor may be liable, as well. The hospital where the healthcare provider was employed can be sued under the respondeat superior doctrine, which provides that an employer is responsible for the tortious action of an employee acting within the scope of his or her employment.

The hospital can also be sued independently under for corporate negligence, for example if the hospital fails to maintain sanitary conditions, fails to screen employees for proper credentials, or improperly discharges a patient.

You may also have a products liability lawsuit against the pharmaceutical company that created a medicine with unreasonably dangerous side effects that you were not made aware of, or against the company that designed or manufactured a defective medical device.

Statute of Limitations

You have a limited time frame during which Texas courts allow you to file your lawsuit. This period begins immediately after you've been injured by a medical professional, even if you had no knowledge of the malpractice. The Texas statute of limitations for filing personal injury claims is two years, which means that if you don't file your case within two years from the date of the injury your case will be dismissed automatically.

Find a Lawyer

The image of a lone gunman taking on all the bad guys himself may be etched into our Texan brains, but this isn't how the legal field operates. As you can already tell, successfully pursuing a medical malpractice case takes specialized knowledge of both the law as well as medicine. Instead of going down in a blaze of glory, consider scheduling a free consultation with an experienced personal injury attorney. Lawyers in this field almost universally work on a contingency fee basis, which means they are paid a percentage of your ultimate recover. This means they aren't paid until you win, and have every incentive to maximize your recovery.

Damages

Courts cannot really reimburse someone for pain or disability, but instead resort to providing plaintiffs with a fistful of dollars. This monetary award if called damages, and come in two flavors. First, "economic damages" compensate plaintiffs for the unfair financial burdens resulting from the malpractice, such as medical bills or lost income from inability to work. There's no upper limit to the amount of economic damage s you may recover.

Second, "non-economic damages" compensate plaintiffs for the pain and suffering he or she was forced to endure as a result of the malpractice. Juries consider loss of enjoyment of life, fear and anxiety, sleeplessness, scarring and disfigurement when calculating the non-economic award. Like most states Texas has an upper limit to the amount of non-economic damages you can recover in medical malpractice cases. There is a $250,000 cap on non-economic damages against a single physician, health care provider or institution, and an overall $500,000 cap on non-economic damages from all defendants combined.

For more information check out FindLaw's section on medical malpractice law.

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