<BLOCKQUOTE><font size="1" face=" Arial, Verdana, Helvetica">quote:</font><HR>Originally posted by Invisible Blonde:
I am in TX and have recently found out that I was misdiagnosed for a back injury 5yrs ago by a Dr treating me for a Workers Comp claim... I am now having to fight for my necessary medical tretment and have been to three Dr's in the past 8mos that have all written opinions stating that this is a result of the original injury. Is it possible to sue the original treating physician for negligence, malpractice? I was diagnosed with a back strain and the only testing that was conducted was x-rays.
When I was originally treated 5yrs ago I complained of pain radiating down my left leg and ankle was xrayed and was diagnosed with a sprained ankle. Now have been diagnosed with DDD, herniation of l4-l5/l5-s-1 and deterioration of the nerve. Any advice??<HR></BLOCKQUOTE>
Statutes of Limitations
No medical malpractice action may be brought more than two years from the date of the breach or tort or from the completion of treatment. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01 (West Supp. 1998). If an injury results from a negligent course of treatment, rather than a specific instance of negligence, the limitations period begins on the last date of treatment, but if the precise date of the breach or tort is ascertainable, the limitations period begins on that date. Bala v. Maxwell, 909 S.W.2d 889 (Tex. 1995). If the period begins before a claimant has reached the age of eighteen, however, an action may be brought at any time until the claimant's twentieth birthday. Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995) (holding unconstitutional that part of the statute extending time for minors under twelve only until their fourteenth birthdays). Recent case law holds that the foregoing medical malpractice statute of limitations, not the wrongful death statute of limitations, Tex. Civ. Prac. & Rem. Code Ann. § 16.003(b) (West 1986), applies to claims brought for malpractice resulting in death. Bala v. Maxwell, 909 S.W.2d 889 (Tex. 1995).
The Supreme Court has made it clear in recent cases that under § 10.01 an action does not accrue at the time of discovery and that the discovery rule formerly applied by the courts has been revoked. However, it has granted that in certain cases (not including death cases) application of § 10.01 to bar a claim before it could reasonably be discovered would be unconstitutional because it would unreasonably deprive a plaintiff of the opportunity to exercise a well-recognized common law right. See Diaz v. Westphal, 941 S.W.2d 96 (Tex. 1997); Baptist Memorial Hospital System v. Arredondo, 922 S.W.2d 120 (Tex. 1996).
Contributory or Comparative Negligence
Texas has adopted the doctrine of modified comparative negligence for tort claims generally. Tex. Civ. Prac. & Rem. Code Ann. §§ 33.001 to 33.017 (West 1997). For incidents on or after September 1, 1995, and for lawsuits filed on or after September 1, 1996, a claimant's action is barred if his "percentage of responsibility" is greater than 50 percent. If his percentage of responsibility is 50 percent or less, the claimant's recovery is diminished in proportion to this percentage. Tex. Civ. Prac. & Rem. Code Ann. § 33.012 (West 1997). For prior incidents, a claimant's action is barred only if his percentage of responsibility exceeds that of all defendants combined. Tex. Civ. Prac. & Rem. Code Ann. § 33.001 (West 1997) (see notes for wording prior to 1995 amendment). Texas's comparative negligence statute does not apply to claims for exemplary damages. Tex. Civ. Prac. & Rem. Code Ann. § 33.002 (West 1997).
Joint and Several Liability
Texas law generally provides that joint tortfeasors are liable severally and not jointly. Each defendant is liable only for that portion of the claimant's damages that is equal to his percentage of responsibility. Tex. Civ. Prac. & Rem. Code Ann. § 33.013 (West 1997). The calculation of percentage of responsibility includes settling defendants and responsible third parties (whom defendants must join). Tex. Civ. Prac. & Rem. Code Ann. § 33.003 (West 1997). It excludes employers and bankrupts. Tex. Civ. Prac. & Rem. Code Ann. § 33.011 (West 1997). For incidents occurring on or after September 1, 1995, and lawsuits filed on or after September 1, 1996, a defendant may be held jointly liable only if his fault is greater than 50 percent. Tex. Civ. Prac. & Rem. Code Ann. § 33.013 (West 1997). For prior incidents, there is joint and several liability in the following cases: (a) when the percentage of responsibility attributed to the defendant is greater than twenty percent and is greater than the percentage of responsibility attributed to the claimant, and (b) when no percentage of responsibility is attributed to the claimant and the defendant is greater than ten percent negligent. Tex. Civ. Prac. & Rem. Code Ann. § 33.013 (West 1997) (see notes for wording prior to 1995 amendment).
Contribution
Texas affords joint tortfeasors a right of contribution in medical malpractice actions, as in other tort cases, based on the tortfeasors' percentages of responsibility. Tex. Civ. Prac. & Rem. Code Ann. §§ 33.015 and 33.011 (West 1997). Such an action for contribution may be maintained only within the principal medical malpractice action. Prudential Insurance Co. v. Henson, 753 S.W.2d 415 (Tex. App. 1988, no writ). A settling tortfeasor does not have a right to contribution. Beech Aircraft Corp. v. Jinkins, 739 S.W.2d 19 (Tex. 1987). However, a settling tortfeasor may retain a common law right of indemnity against one for whom he is vicariously liable. St. Anthony's Hospital v. Whitfield, 946 S.W.2d 174 (Tex. App. 1997, writ denied) (allowing a settling hospital to sue a settling nurse for indemnity).
Vicarious Liability
The Texas Supreme Court recently held that in order to establish a hospital's liability for an independent contractor's medical malpractice based on ostensible agency, a plaintiff must show that (1) he had a reasonable belief that the physician was the agent or employee of the hospital, (2) such belief was generated by the hospital affirmatively holding out the physician as its agent or employee or knowingly permitting the physician to hold himself out as such, and (3) he justifiably relied on the representation. Baptist Memorial Hospital System v. Sampson, 946 S.W.2d 945, 949 (Tex. 1998). The Court rejected the doctrine that a hospital has a non-delegable duty to its emergency patients. It reinstated a summary judgment in favor of a hospital that had posted signs saying that the physicians were independent contractors and had obtained the patient's signature on an acknowledgment of the same. Id. at 950. The Court also recently decided that a hospital may not be held liable for a physician's error on the theory of negligent credentialing unless it acted with malice. St. Luke's Episcopal Hospital v. Agbor, 952 S.W.2d 503 (Tex. 1997).
Expert Testimony
Generally, expert testimony is necessary to establish a prima facie case of medical malpractice. Duff v. Yelin, 721 S.W.2d 365 (Tex. App. 1986), aff'd, 751 S.W.2d 175 (Tex. 1988). To qualify as an expert witness against a physician in a malpractice claim, the witness must be a physician with board certification or other substantial experience relevant to the claim who is practicing or teaching in an area of medicine that is relevant to the claim (or was at the time the claim arose). Tex. Rev. Civ. Stat. Ann. art. 4590i, § 14.01 (West Supp. 1998).
Within 90 days after filing a notice of claim, a plaintiff must post a bond or file an expert report for each defendant. Within 180 days after filing a notice of claim, a plaintiff must provide to counsel for each defendant physician or health care provider an expert witness report or reports along with a curriculum vitae for each expert. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01 (West Supp. 1998).
Damage Caps
Texas law limits damages in a medical malpractice action for wrongful death to $500,000 (in 1977 dollars). Tex. Rev. Civ. Stat. Ann. ar
