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Medical Malpractice Protection - New Absurd Results

Feb 23, 2015 — by Jeff Mundy
Tags: Medical Malpractice

On Feb. 10, Houston's Fourteenth Court of Appeals issued Brazos Presbyterian Homes d/b/a The Hallmark v. Lander, which dismissed a case that plaintiffs filed against a retirement home. The court held that the plaintiffs' negligent hiring claim was really a "health care liability claim" under Chapter 74 of the Texas Civil Practices & Remedies Code, even though the dispute involves an elderly woman who was allegedly injured by a contract valet driver who was parking the woman's car outside the home.

Excerpt from The Texas Lawyer

Medical Malpractice - Expert Report


Whether a witness is qualified as an expert is within the trial court's discretion. The party offering the expert's report bears the burden of proving the witness is qualified under rule of evidence 702. A physician is qualified if he has "knowledge, skill, experience, training, or education" to testify about the particular causation opinion at issue. Although not every licensed doctor is qualified to testify on every medical question, we must be careful not to draw expert qualifications too narrowly. 

Kim next asserts Cooperman's report was conclusory as to causation. An expert report need not marshal the claimant's evidence, but should explain the basis for its conclusions and link the conclusions to the facts of the case. A report's adequacy does not depend on whether an expert uses any particular "magic words."

Hospital Van Safety = Medical Malpractice Claim

Apr 6, 2013 — by Jeff Mundy
Tags: Medical Malpractice

A health care liability claim has three component parts: (1) a physician or a health care provider must be the defendant; (2) the suit must relate to the patient's treatment, lack of treatment, or some other departure from accepted standards of medical care, health care, or safety, or professional or administrative services directly related to health care; and (3) the defendant's act or omission or other departure must proximately cause the claimant's injury. 




Medical Malpractice - Standard of Review

Mar 19, 2013 — by Jeff Mundy
Tags: Medical Malpractice

Appellants' claims against appellees are health care liability claims sounding in negligence. The elements of such claims are (1) a legal duty, (2) a breach of that duty, and (3) damages proximately caused by the breach. Columbia Med. Ctr. Subsidiary, L.P. v. Meier, 198 S.W.3d 408, 414 (Tex. App.--Dallas 2006, pet. denied). The standard of care for a health care provider is what an ordinarily prudent health care provider would do under the same or similar circumstances.  Proximate cause encompasses foreseeability and cause in fact. Meier, 198 S.W.3d at 414. Cause in fact is established if the negligent conduct was a substantial factor in bringing about the injuries and, without it, the harm would not have occurred. Id. In a medical-malpractice case, the plaintiff ordinarily must produce expert testimony to establish both the applicable standard of care and proximate causation if those matters are not within the experience of a layperson.

Medical Malpractice - Nurse Malpractice

Mar 17, 2013 — by Jeff Mundy
Tags: Medical Malpractice

Medical malpractice also differs from ordinary negligence in the circumstances under which a duty arises.  In an ordinary negligence case, the duty to refrain from negligently injuring others requires no prior relationship.  Professionals, on other hand, do not owe a duty to exercise their particular talents, knowledge, and skill on behalf of every person they encounter.  "As is true of all callings, physicians are not obligated to practice their profession or render services to everyone who asks." It is only with the physician's express or implied consent that the physician-patient relationship is created. 

Psychiatric Malpractice - Texas Supreme Court


To determine whether the actions of the defendants in Dowell proximately caused Dowell's suicide we analyzed both factors of the cause-in-fact element of proximate cause: whether the actions were a substantial factor in bringing about the suicide and whether, but for the actions, the suicide would not have occurred. In this case we need only consider the but-for factor. That is, we consider whether the evidence is legally sufficient to support the finding that absent the negligence of Dr. Rodriguez-Escobar-but for his negligence-Goss would not have committed suicide.

Rodriguez-Escobar v. Goss (Texas Supreme Court 2013)

Medical Tort Reform - When does it apply?

Jan 8, 2013 — by Jeff Mundy
Tags: Medical Malpractice

A hospital removed a podiatrist's privileges to practice at the hospital.

The doctor sued and the hospital asserted that the case was governed by the 2003 tort reform.

The court of appeals discusses the factors that determine whether a claim is subject to the tort reform.


Tort Reform Held Unconstitutional

Jan 4, 2013 — by Jeff Mundy
Tags: Medical Malpractice

The medical malpractice tort reform which cuts off the rights of children before they reach 18 years old is unconstitutional.



Informed Consent & Medical Malpractice Law

Dec 7, 2012 — by Jeff Mundy
Tags: Medical Malpractice

Failures to disclose what a reasonable patient should know, and what a reasonable care provider would disclose, are both negligence.

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