Legal Question in Medical Malpractice in Texas

ER mistake on an 8 month old

My daughter is 8 months old. She put a foreign body in her mouth and proceeded to choke on it. She never turned blue, but she did foam at the mouth, gag, stop breathing, etc. My husband and I took her to the ER. The doctor that we saw never once looked in my daughter's mouth, throat, nothing. We told her that we knew it was something hard and plastic because we had both felt it. She sent us for x-rays, which don't show plastic, then said she saw nothing and it would pass in a few days. She had her drink a bottle and said there is a 0% chance it could be in her esophagus since she took liquid. To make a very long story a little shorter, she sent us home with Tylenol and said to check her diapers. After a couple of days she was still not eating well and acting very different. She was drooling a lot also. I contacted her pediatrician who told me immediately to take her to a Children's hospital. We were there for a very long 2 days and they finally did a scope and found a flower from a barrette imbedded in her esophagus. It was so bad that it left 2 huge scratches. I guess there goes the 0% chance. She went 4 days with something in her esophagus. Should I pursue anything?

Asked on 11/01/07, 9:32 pm

3 Answers from Attorneys

Dan Street Street Law Firm

Re: ER mistake on an 8 month old

I am very sorry to hear about this terrible event that happened to your baby daughter. Unfortunately, I must agree with the other two attorneys answering your inquiry. The bad news is that we live in Texas, a state that, due to our current governor, Rick Perry, and his predecessor, George Bush, is so pro-doctor and anti-patient, there is almost no such thing as medical malpractice anymore. You may know that our legislature, under great pressure from Gov. Perry and the medical lobby, passed Proposition 12 in 2004, and the voters of this state approved it. The practical effect of this legislation is to make it so unlikely that you can find a doctor who is willing to testify against another doctor (which is an essential part of a malpractice claim) that malpractice has virtually ceased to exist in Texas. In short, all medical malpractice cases in Texas require that you, the injured party, prove that the doctor was negligent and that it was this negligence that caused your daughter's injury. The case cannot be based upon your feelings, suspicions, or suppositions. It must be based on expert testimony from a doctor that her doctor was negligent. Because of Proposition 12, it has become almost impossible to find a doctor who will testify against another one. And even if you were able to establish negligence through the testimony of another doctor, I doubt your damages would be substantial enough to justify the high cost of pursuing litigation and paying for the expert witnesses you would need. For these reasons, your daughter will go completely uncompensated, thanks to George Bush, Rick Perry, and all of those who voted for this horrible new law.

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Answered on 11/02/07, 1:57 pm
Chuck Cowan The Law Offices of C.D. Cowan, P.C.

Re: ER mistake on an 8 month old

The initial question in this case and\or any other potential Med Mal case is whether the "standard of care" has been breached. In other words, did the patient\victim get sub-standard care. In your case that part is a "no-brainer". The subsequent question in a potential med mal case is what actual damages, if any, did the victim actually suffer as a consequence of the sub-standard medical treatment. Unfortunately, it is not enough in Texas for a person just to be exposed to a potentially deadly or harmful situation. The victim must actually suffer real verifiable damages that were “proximately caused” by the medical malpractice. Clearly your poor child did suffer from the scratches in her throat. For that I am sincerely sorry. Unfortuantaely the damages we could expect to receive from any Texas jury would be far less than the actual costs required to get the case in front of them.

I do howeverwant you to know that

in 2003, our learned Texas Legislature listened to “Big Insurance” lobbyists and concluded that the way to stop "medical malpractice abuse" in Texas was to LIMIT the maximum amount of damages a plaintiff could be awarded by a jury. In doing so, they passed sweeping legislature that caps damages on children (infants), stay at home moms and the retired at $250,000.00, with NO exceptions. The legislators and the governor did all these changes knowing that it routinely COSTS a plaintiff and\or their lawyers upwards of $50,000.00 to even get a medical malpractice case to a point where a jury could hear and eventually decide it. As a consequence, few lawyers are still willing will to spend their time and the necessary money to evaluate medical malpractice cases because they are not economically feasible for the client.

Apparaently, BIG MONEY still TALKS IN TEXAS!!

My suggestions to you are two fold. First,regarding the obviously less than professional treatment you received from the treating doctor folks, I can strongly recommend that you consider filing a formal complaint with the Texas Board of Medical Examiners (TMBE). This can be done online at ttp:// . Follow the prompts.

Secondly, I can highly recommend you making direct contact with "Texas Watch." Texas Watch is a pro-consumer group that is very interested in hearing about stories like yours where Doctors and Hospitals have been less than “professional” and\or "helpful" to their patients. You can reach them on the web as well. Their web site is

Good Luck to you.

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Answered on 11/01/07, 9:43 pm
Mitchell Roth MW Roth, Professional Law Corporation

Re: ER mistake on an 8 month old

Well, here's the problem. Thank goodness your daughter seems not to have suffered permanent damage. A the same time that's the main problem from a med mal point of view. You see it costs about $30,000 or more out of pocket just to prosecute a med mal case, and these are not attorneys fees I'm talking about. If you spent the money you could lose. Doctors are not required to be right, but simply to exercise reasonable judgment and skill.

Then even if you win, what might a jury award for this? $25000, $50,000. Even if they award $50,000, that would leave a net recovery of about $20,000. By statute an attorney cannot be paid a fee in such a case above $8,000. No attorney in his right mind would take on the case with $8,000 as an upside.

Now, that being said, if God forbid, your daughter develops a significant permanent injury as a result of the incident, call us and we'll reevaluate.

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Answered on 11/01/07, 11:10 pm

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