Legal Question in Medical Malpractice in Texas

Is This Medical Malpractice?

I had surgery to repair a broken tibia on 4/22/07, which involved inserting a metal plate & 5 screws. I was non-weight bearing for 3 months. In July, at my 3 month visit, I was told I could now bear full weight & that physical therapy would be needed. The doctor said he would be referring me to a therapist in the hospital. After 2 weeks I received an appointment in the mail, but nothing about a therapist. I phoned the clinic, left a message and received no response. This went on for 2 weeks. At my appointment I informed the doctor of the circumstances & he said he would re-write the recommendation. The same situation occured for another two weeks, until a nurse told me that she had sent off my paperwork & I would be contacted shortly. Two weeks later...nothing! At my last appointment I was told that progress was not good & that due to not having physical therapy I would have to have a repeat surgery involving a removal of scar tissue & cartliage or I would walk with a limp for the rest of my life. When asked what happened, I was apologized too by 3 staff members who could only say that my paperwork got lost. I have no insurance & they want to charge me $7500 for a surgery needed due to their mistake! Are there any legal options?

Asked on 9/25/07, 4:29 pm

2 Answers from Attorneys

Chuck Cowan The Law Offices of C.D. Cowan, P.C.

Re: Is This Medical Malpractice?

The question in your case and in any Med Mal case is whether the "standard of care" has been breached. That question is ultimately one for the jury to decide (Unless our learned Texas Supreme Court is willing to weigh in on this particular fact pattern and rule as matter of law as they have chosen to do in some cases).

My initial recomendation is to seek the evaluation of a qualified medical malprcatice lawyer in your area. He can take your facts and the medical records that support them and get an outside orthopedic doctor to evalauate the "standard of care" against your facts and then make a recomendation on whether litigation is a potential solution for you.

I can also recommend that you consider filing a formal complaint with the Texas Board of Medical Examiners (TMBE). This can be done online at . Follow the prompts. Lastly, I can highly recommend contacting Texas Watch. Texas Watch is a pro-consumer group that is very interested in hearing about stories like yours wher Doctors have been less than "helpful". You can reach them on the web as well. Their web site is

Good Luck to you.

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Answered on 9/26/07, 11:50 am
Dan Street Street Law Firm

Re: Is This Medical Malpractice?

I am very sorry to hear about the medical problems you have been having. The unfortunate news is that we live in Texas, a state that, due to our current governor, Rick Perry, and his predecessor, George W. 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 injury. The case cannot be based upon your feelings, suspicions, or suppositions. It must be based on expert testimony from a doctor that your surgeon was negligent. Based upon the limited information you provided me, it is my opinion that it would be difficult, if not impossible, to get a doctor to testify that your doctor was negligent. 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. You can also thank our fine, Republican Legislature and Texas Supreme Court for this.

Please understand that this is just my opinion, and opinions of attorneys can vary, so you are encouraged to speak to other attorneys about your case if you are serious about pursuing this claim.

The statute of limitations requires that you settle your claim or file a lawsuit on your claim within two years of the date of your doctor's negligence or your claim will be barred forever.

Best of luck to you.

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Answered on 9/27/07, 5:55 pm

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