If you're thinking about filing a medical malpractice claim in Texas, it's important to familiarize yourself with the different state laws that could have an impact on your case. In this article, we'll look at the time limit for filing a medical malpractice lawsuit in Texas courts, the monetary "cap" on certain kinds of medical malpractice damages, and special procedural requirements concerning notice of your claim and expert witnesses.
Texas has a specific "statute of limitations" that puts a time limit on an injured patient's right to file a medical malpractice case in court.
In Texas, a person injured by medical negligence has two years to bring a lawsuit to court. The two-year clock begins running on the date the malpractice occurred. If the medical error occurred as part of a course of continuous medical treatment, the two-year statute of limitations "clock" usually begins to run on the last day of that treatment.
If the injured patient was a child under the age of 12, a medical malpractice lawsuit may be filed on the minor's behalf anytime before the child's 14th birthday.
It's important to note that Texas courts don't give much weight to whether or not the injured patient could have known (or in the eyes of the law should have known) that he or she had been harmed by a health care provider's error. The key date for purposes of the statute of limitations "clock" is the date on which the error occurred (one big exception seems to be cases in which the health care provider's error was fraudulently concealed).
You can find the Texas statute of limitations for medical malpractice lawsuits at Texas Civil Practice & Remedies Code section 74.251
Texas also observes a so-called "statute of repose" for medical malpractice lawsuits, which says that no matter when a medical malpractice-caused injury might have been discovered or treatment might have ended, a case must be brought within ten years of the date the negligent act occurred. Cases that are filed more than ten years after the date of injury will almost certainly be dismissed by the court.
Texas is one of many states that place a legislative cap on damages in medical malpractice cases, although the Texas cap applies to non-economic damages only. Non-economic damages include compensation for pain and suffering, loss of enjoyment of life, anxiety and stress, and other subjective losses caused by the defendant's malpractice. Economic damages, which cover financial losses like medical bills and lost wages, are not capped in Texas.
Here are the highlights of the law (you can read the full text at Texas Civil Practice & Remedies Code section 74.301): There is a $250,000 "per claimant" cap on non-economic damages in medical malpractice cases against a single physician or other health care provider in Texas (that means per injured patient in a particular lawsuit against one defendant). For cases against multiple health care institutions, there is an overall cap of $500,000 per-claimant for non-economic damages. Finally, no single institution can be on the hook for more than $250,000 in non-economics, per-claimant.
Before an injured patient can file a medical malpractice lawsuit in the Texas civil court system, Texas Civil Practice & Remedies Code section 74.051 requires that the prospective plaintiff (usually through an attorney) provide written notice of the claim to each health care provider to be named in the lawsuit, at least 60 days before the case is filed. This notice must be sent via certified mail, return receipt requested.
Along with the notice of claim, the patient must provide each named health care provider with an "authorization form for release of protected health information," so that the provider(s) can begin to investigate the patient's claims.
In Texas, an injured patient (or his or her attorney) who files a medical malpractice lawsuit in court must also serve an expert report—similar to an affidavit of merit—on each defendant. In 2021, the Texas legislature passed a law intended to prevent health care providers from demanding expert reports from plaintiffs in cases beyond medical malpractice claims (such as a slip-and-fall accident on hospital property, for example). The new law allows the injured patient to ask the court to issue a "preliminary determination" as to whether the claim is a medical malpractice claim that requires an expert report. If the court determines that the case does require an expert report, the injured patient must serve the report on each defendant within the later of:
If the court doesn't issue a preliminary determination ruling within 90 days of the plaintiff's request, the court must issue a preliminary determination that the claim requires the plaintiff to serve an expert report on the defendant(s). (You can find these rules at Texas Civil Practice & Remedies Code section 74.353.)
If the injured patient does not request a preliminary determination from the court, the expert report must be served on each defendant within 120 days of filing the lawsuit.
The expert report must summarize:
If the expert report is not filed before the appropriate deadline, the court may dismiss the case.
If you have questions about what it takes to file a medical malpractice lawsuit in Texas, get tips on finding the right lawyer for your medical malpractice case.