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10.01 an action does not accrue at the time of discovery and that the discovery rule formerly applied by the courts has been revoked.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. art. 4590i, § 11.02 (West Supp. 1998). This amount is adjusted annually for inflation, Tex. Rev. Civ. Stat. Ann. art. 4590i, § 11.04 (West Supp. 1998), and is now approximately $1,300,000. The statute was intended to apply to all medical malpractice cases, but has been held to be unconstitutional except with respect to wrongful death. Rose v. Doctors Hospital, 801 S.W.2d 841 (Tex. 1990).

Texas also limits punitive damages in cases arising after September 1, 1995, to (a) two times the amount of economic damages, plus (b) an amount equal to non-economic damages (not to exceed $750,000) or $200,000, whichever is greater. Tex. Civ. Prac. & Rem. Code Ann. § 41.008 (West 1997). This was formerly four times actual damages or $200,000, whichever is greater. Tex. Civ. Prac. & Rem. Code Ann. § 41.007 (West 1991) (repealed 1995). The cap on punitive damages does not apply in cases of certain felonies, including fraudulent destruction or concealment of written records. Tex. Civ. Prac. & Rem. Code Ann. § 41.008 (West 1997).

Statutory Cap on Attorneys' Fees

Texas does not place a limit on the amount of attorneys' fees counsel may receive in a medical malpractice action.

Periodic Payments

Texas law does not mandate the use of periodic payments in any medical malpractice action.

Collateral Source Rule

Texas adheres to the traditional rule, under which a claimant's receipt of benefits from a collateral source, such as insurance, does not reduce his recovery. Century Papers, Inc. v. Perrino, 551 S.W.2d 507 (Tex. App. 1977, writ ref'd n.r.e.).

Pre-Judgment Interest

Pre-judgment interest is recoverable in medical malpractice actions in Texas, unless the case settles within 180 days. Tex. Civ. Stat. Ann. art. 4590i, § 16.02 (West Supp. 1998). Pre-judgment interest accrues from the date of injury through one day prior to entry of judgment. Id. Interest accrues only on past damages, not on damages awarded to compensate for future loss. Id.

Pre-judgment interest is not afforded to claimants with respect to their claims for exemplary damages. Tex. Civ. Prac. & Rem. Code Ann. § 41.006 (West 1997).

Patient Compensation Funds and Physician Insurance

The Texas law providing for indemnification of eligible health care providers up to $100,000 for each occurrence involving obstetric care and $25,000 for each other occurrence of medical malpractice expired by its own terms on September 1, 1997. Tex. Civ. Prac. & Rem. Code Ann. §§ 110.001 to 110.007 (West 1997 & Supp. 1998) (expired).

Immunities

Texas has waived its sovereign immunity to a limited extent. In any action for personal injury or death, the state or a political subdivision may be liable in damages for injuries caused by the negligence of an employee who is acting within the scope of his employment and who could be held personally liable therefor. Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 1997). The state and all its political subdivisions are immune from liability for punitive damages in actions for negligence. Tex. Civ. Prac. & Rem. Code Ann. § 101.024 (West 1997).

Texas also provides a statutory cap on damages against the state -- $250,000 for each person and $500,000 for each single occurrence of bodily injury or death. Tex. Civ. Prac. & Rem. Code Ann. § 101.023 (West 1997 & Supp. 1998). For local governments, the limits are $100,000 for each person and $300,000 for each single occurrence of bodily injury or death. Id. For municipal corporations, the limits are $250,000 for each person and $500,000 for each single occurrence of bodily injury or death. Id.

A government entity's purchase of liability insurance will likely not waive its immunity. Barr v. Bernhard, 562 S.W.2d 844 (Tex. 1978).

Arbitration

Texas does not mandate the reference of medical malpractice actions to an arbitrator or screening panel. However, the legislature has authorized counties to adopt alternative dispute resolution systems, Tex. Civ. Prac. & Rem. Code Ann. §§ 152.001 to 152.004 (West 1997), and pretrial mediation is routine in many Texas venues pursuant to this legislation. In addition, legislation codified at Tex. Civ. Prac. & Rem. Code Ann. §§ 154.001 to 154.073 (West 1997) provides standards for the use of mediation, mini-trials, moderated settlement conferences, summary jury trials, and arbitration.

No health care provider can require or even request that a patient sign an agreement to arbitrate liability claims without giving the patient a prescribed form of written notice that the agreement is invalid without the signature of the patient's attorney. Tex. Civ. Stat. Ann. art. 4590i, § 15.01 (West Supp. 1998). This section contains serious penalties.