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Medical malpractice happens when a doctor, nurse, hospital, or other provider gives care that falls below accepted medical standards and injures a patient.
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What Counts as Medical Malpractice in Texas?
The Legal Name Matters
Texas calls these cases health care liability claims, and the label is not cosmetic. It triggers Chapter 74 of the Texas Civil Practice and Remedies Code, a body of procedural requirements enacted in 2003 that governs every step of the case.
Chapter 74 reaches broadly. Claims that look like ordinary negligence — a patient falling in a hospital, an injury from equipment, even some premises issues on medical property — are frequently recharacterized as health care liability claims by defendants, precisely so the notice and expert report requirements apply. That recharacterization fight is common and consequential.
The Four Elements
Every health care liability claim must establish four things:
- Duty. A provider-patient relationship existed, creating an obligation to deliver competent care.
- Breach. The provider’s action, or failure to act, fell below the accepted standard of care for that specialty and setting.
- Causation. That breach actually caused the harm. This is the element that defeats most claims. A missed diagnosis only matters legally if earlier detection would have changed the outcome.
- Damages. Real, documentable harm followed — additional surgery, permanent impairment, lost income, or death.
The Standard Is Reasonableness, Not Perfection
Medicine is not required to be perfect. It is required to be reasonable. The legal question is never whether the patient got worse. It is whether a reasonably careful provider in the same specialty, facing the same situation with the same information, would have done what this provider did.
That standard is established by expert testimony from practicing physicians in the relevant field, not by how the outcome felt, and not by hindsight.
A Bad Outcome Is Not Automatically Malpractice
This is the single most important thing to understand before calling any lawyer, and most law firm websites skip it entirely.
Surgery carries risk. Cancer sometimes progresses despite correct treatment. Patients react badly to properly administered drugs. When a known complication occurs despite reasonable care, there is generally no claim — even when the result is devastating and even when someone dies.
What separates malpractice from misfortune is usually documentation. An abnormal test result nobody followed up on. A nurse’s note describing a deteriorating patient that went unanswered for hours. A consent form that never mentioned the risk that materialized. A shift handoff where critical information disappeared. A medication order that contradicted a documented allergy.
Those details live in the chart. You cannot see them from the outside, and neither can we until we read it. That is the entire purpose of the investigation phase, and it is why credible firms do not tell you that you have a case on the first phone call.
Types of Medical Malpractice Cases We Handle
Misdiagnosis and Delayed Diagnosis
Diagnostic failure is the most common source of serious patient harm. The federal Agency for Healthcare Research and Quality reports that diagnostic errors leave an estimated 795,000 Americans permanently disabled or dead each year.
In Austin cases we most often see failures involving cancer — particularly breast, colorectal, and lung — heart attack presenting atypically in women, stroke dismissed as vertigo or migraine, sepsis missed in its early window, pulmonary embolism after surgery, spinal epidural abscess, necrotizing fasciitis, and testicular or ovarian torsion.
Each of these has a treatment window. Miss the window and the outcome changes permanently, which is why the causation analysis in diagnostic cases focuses on what earlier detection would actually have achieved.
Surgical Errors
Surgical malpractice is rarely a dramatic wrong-site amputation. More often it is a bowel perforation unrecognized for two days, a retained sponge or instrument, nerve damage from improper positioning, uncontrolled bleeding managed too slowly, or a post-operative infection whose warning signs were charted and ignored.
We also examine who actually performed the operation. Patients sometimes consent to a specific surgeon and are operated on largely by a resident or physician assistant without meaningful supervision — an issue that can support both a negligence claim and an informed consent claim.
Birth Injuries and Obstetric Negligence
Labor and delivery cases involve the most serious lifetime damages in medicine. Common allegations include failure to recognize non-reassuring fetal heart tracings, delayed cesarean section, improper use of vacuum or forceps, mismanaged shoulder dystocia, untreated maternal preeclampsia, and postpartum hemorrhage response failures.
Texas also applies special limitations rules to claims involving young children, and parents frequently have a separate deadline from their child. Because the analysis differs substantially, we handle these on our dedicated Austin birth injury page.
Emergency Room Errors
Emergency departments run at high volume and triage decisions get made fast. Claims arise from premature discharge, failure to order imaging for head trauma or chest pain, failure to consult a specialist, misread radiology, and patients who leave without ever being evaluated by a physician.
Texas applies a substantially tougher legal standard to emergency medical care, explained further down. This is why ER cases need early screening by a lawyer rather than being assumed strong because the outcome was bad.
Medication and Pharmacy Errors
Wrong drug, wrong dose, wrong route, wrong patient. Also prescribing without checking a documented allergy, failing to catch a dangerous interaction, anticoagulant dosing without appropriate monitoring, insulin and opioid errors on hospital floors, and compounding or dispensing mistakes at the pharmacy level.
Anesthesia Errors
Anesthesia complications escalate in minutes. We investigate inadequate pre-operative assessment, failure to recognize a difficult airway, intubation injury, oxygen deprivation causing brain injury, dosing errors, failure to monitor vital signs, and anesthesia awareness.
Radiology and Pathology Errors
A missed lesion on imaging, a misread biopsy, a specimen mislabeled or switched, or a critical finding never communicated to the ordering physician. These cases have a distinctive feature: the error is preserved on film or slide and can be reviewed independently years later, which makes them more objectively provable than many other claims.
Hospital-Acquired Infections and Pressure Injuries
Not every infection is negligence. But central line infections, surgical site infections traced to sterile technique failures, and stage 3 or stage 4 pressure ulcers on immobile patients frequently reflect systemic breakdowns in monitoring, turning schedules, and staffing levels.
Nursing and Hospital Staffing Failures
Many claims involve no physician at all. They involve a nurse who did not escalate a deteriorating patient up the chain of command, a unit staffed below safe ratios, alarm fatigue on a telemetry floor, or a patient fall from a bed with no ordered fall precautions in place.
Staffing records, assignment sheets, and acuity data are central evidence in these cases and are routinely fought over in discovery.
Failure to Obtain Informed Consent
Texas has a statutory framework for medical disclosure, administered through a state panel that identifies procedures requiring specific disclosures and the risks that must be named.
The general principle is that a provider must disclose the risks and hazards a reasonable patient would want to know before agreeing to a procedure. When a material risk was never disclosed and that exact risk occurred, informed consent may be a viable theory even where the procedure itself was performed competently.
A signed consent form does not end the inquiry. What matters is what was actually disclosed, by whom, and whether the patient had a genuine opportunity to decide.
Discharge, Handoff, and Follow-Up Failures
Some of the clearest negligence happens after the patient goes home. Abnormal biopsy results nobody communicated. A critical lab value that landed in a portal no one monitored. Discharge without wound care instructions or a follow-up appointment. Transfer between facilities where medication lists and pending studies vanished.
Telemedicine and Remote Care
Remote consultations, teleradiology, and remote monitoring are now routine, and the standard of care applies to them. Claims arise from failing to escalate a patient to in-person evaluation, prescribing without adequate assessment, technology failures that interrupted monitoring, and unclear responsibility between a remote provider and the on-site team.
Who Can Be Held Liable
Identifying the correct defendant matters enormously in Texas, and it is rarely obvious from the bill you received.
Individual Providers
Physicians and surgeons, including specialists and radiologists who read a study remotely. Nurses, nurse practitioners, physician assistants, and technicians, whose employers may be liable for their conduct.
Hospitals — Two Different Theories
A hospital can be liable in two distinct ways, and they require different proof.
- Direct liability for the hospital’s own negligence — negligent credentialing of a physician it knew or should have known was dangerous, inadequate staffing, deficient policies, faulty equipment, and infection control failures.
- Vicarious liability for the negligence of its actual employees, typically nurses and technicians.
The Independent Contractor Problem
Here is the complication most patients never see coming, and it is the reason many claims are brought against the wrong party.
Many physicians who treat you inside a hospital are not employed by that hospital. They are independent contractors with their own separate malpractice coverage. Emergency physicians, anesthesiologists, radiologists, pathologists, and hospitalists are commonly structured this way, and the arrangement is usually disclosed only in fine print on an admission form.
That structure affects whom you sue, which insurance policies are available, and how much total coverage exists. It is one reason a claim needs to be investigated by a lawyer before a notice letter goes out, not after.
Ostensible Agency
Texas recognizes, in limited circumstances, that a hospital may be responsible for a contractor physician where the hospital held that physician out as its own and the patient reasonably relied on that appearance.
These claims are fact-intensive and depend heavily on signage, admission paperwork, how the physician was introduced, and whether the patient had any meaningful choice. They are worth evaluating rather than assuming, but they are not a reliable substitute for identifying the correct defendant at the outset.
Facilities, Labs, and Pharmacies
Ambulatory surgery centers, freestanding emergency facilities, imaging centers, laboratories, dialysis centers, and pharmacies each carry their own duties and their own coverage. Long-term care facilities frequently overlap with a nursing home abuse and neglect claim, though Chapter 74 often still applies.
Why Texas Medical Malpractice Claims Are Harder Than Other Injury Cases
Texas restructured medical liability law in 2003. Chapter 74 added procedural requirements that exist in no other kind of case, and each one is a place where a valid claim can end.
The 60-Day Pre-Suit Notice
Before filing suit, a claimant must give each provider written notice of the claim at least 60 days in advance, served by certified mail, together with a statutory authorization form releasing protected health information.
Serving proper notice also tolls the limitations period, which can matter enormously when a deadline is close. Serving it improperly, or on the wrong entity, can forfeit that benefit.
The 120-Day Expert Report — The Case Killer
Under Section 74.351, a claimant must serve each defendant with a qualified expert report and the expert’s curriculum vitae no later than the 120th day after that defendant files an original answer.
If the deadline is missed, dismissal is mandatory and with prejudice — the claim cannot be refiled — and the court may award the defendant’s attorney’s fees against the patient. There are few provisions in Texas law this unforgiving.
What Makes an Expert Report Sufficient
Meeting the deadline is not enough. The report must actually do three things for each defendant:
- Identify the applicable standard of care for that specific provider in that specific setting.
- Explain specifically how that defendant breached it — not the defendants collectively, and not in general terms.
- Connect that breach to the injury with a causal explanation, rather than asserting causation as a conclusion.
Reports are routinely challenged as conclusory, and a vague report is treated as no report at all. The expert must also be qualified under Chapter 74’s specific requirements, which differ depending on whether the defendant is a physician, a different type of provider, or an institution. Using an otherwise excellent expert who does not meet the statutory qualifications is a fatal and entirely avoidable error.
The 30-Day Cure and the Appeal That Follows
A court may grant one 30-day extension to cure a deficient report. That is a narrow safety net, not a plan.
More importantly for anyone wondering why these cases take so long: an order denying a motion to dismiss over an expert report is immediately appealable. Defendants routinely challenge the report, lose, and appeal — adding a year or more before discovery has meaningfully begun. This is standard practice, not a signal that your case is weak.
Practically, all of this means a qualified expert in the correct specialty must already have reviewed your records and reached supportive conclusions well before suit is filed. That is why credible firms decline cases they cannot support with expert testimony, and why the investigation phase takes months rather than days.
Caps on Noneconomic Damages
Texas limits noneconomic damages — pain, suffering, mental anguish, disfigurement, loss of enjoyment of life — in health care liability claims. Under Section 74.301, the limit is generally $250,000 per claimant against physicians and individual providers as a group, and $250,000 per health care institution, with a $500,000 ceiling across multiple institutions.
Economic damages are not capped. Past and future medical care, lost earnings, lost earning capacity, life care planning, home modification, and attendant care can be recovered in full when proven. Wrongful death and survival claims are governed by a separate, inflation-adjusted limit.
What the Caps Mean in Practice
Consider two patients harmed by identical negligence at the same hospital.
The first is 34, works as an electrician, and is left unable to return to physical work. Their economic damages — decades of lost earning capacity plus future medical care — may run into the millions, and none of it is capped.
The second is 78 and retired. The same injury causes the same suffering, but there is little lost earning capacity and the future care period is shorter. Most of what that patient lost falls into the capped category.
The negligence was identical. The recoverable value is not. That is the practical effect of the Texas caps, and it is the honest reason some deeply sympathetic cases cannot be economically litigated. We would rather explain that at the first meeting than after a year of expert costs.
The Emergency Care Standard
For care provided in a hospital emergency department, and in obstetrical services and surgical suites immediately following emergency treatment, Texas requires proof of willful and wanton negligence — a substantially higher bar than ordinary negligence.
Whether that heightened standard applies to your case depends on where and how the care was delivered, and it is frequently contested. Defendants argue for its application aggressively, because it converts a provable negligence case into a very difficult one.
Exemplary Damages
Where conduct rises beyond ordinary negligence to gross negligence, exemplary damages may be available, subject to a heightened burden of proof and separate statutory limits. These are not available in the typical case and should not be assumed. Where the facts genuinely support them, they can change the value of a claim substantially.
The Hospital’s Own Investigation Is Probably Privileged
This section explains something that frustrates almost every patient, and that we have never seen addressed on a competing Austin page.
After a serious adverse event, hospitals investigate. A committee reviews what happened, sometimes identifies exactly what went wrong, and sometimes changes a policy as a result. Patients naturally assume that analysis will be available to them.
It generally will not be.
What the Privilege Covers
Under Chapter 160 of the Texas Occupations Code, proceedings and records of a medical peer review committee are confidential and privileged, and are generally not subject to subpoena or discovery without a written waiver from the committee itself. Chapter 161 of the Texas Health and Safety Code provides a parallel protection for the records and proceedings of medical committees.
The privilege protects the products of the review process — the committee’s reports, deliberations, and conclusions. Texas authority has held that even the fact a committee reviewed a particular matter can be protected. A person seeking access generally has to plead and prove waiver, and waiver must be in writing.
What the Privilege Does Not Cover
This is the important part, and it is why these cases remain winnable.
The statutes expressly do not apply to records made or maintained in the regular course of business by a hospital or similar entity. The medical chart is a business record. So are nursing notes, medication administration records, imaging, lab results, operative reports, monitoring data, staffing assignments, and equipment maintenance logs.
A document does not become privileged simply because a committee later looked at it. What is shielded is the committee’s analysis, not the underlying facts.
Why This Shapes the Entire Case
Because the hospital’s own conclusion about what went wrong is usually unavailable, these cases must be built from the primary record and from independent experts who reconstruct the sequence themselves.
That has three consequences worth understanding. It is why a complete records request matters far more here than in an ordinary injury case. It is why expert review is expensive and slow. And it is why nobody should wait for the hospital to explain itself — that explanation, if it exists at all, is not coming.
Texas Medical Malpractice Deadlines You Cannot Miss
Under Section 74.251, a health care liability claim must generally be filed within two years of the negligent act, the completion of the relevant course of treatment, or the end of the related hospitalization.
Additional rules layer on top:
- Ten-year statute of repose. No claim may be brought more than ten years after the act or omission, regardless of when the injury was discovered. Courts have treated repose periods as considerably harder barriers than ordinary limitations.
- Minors. Special rules apply to young children, and a parent’s own related claims may run on a different and shorter clock than the child’s. Families who assume they have until the child reaches adulthood are frequently wrong. See our birth injury page.
- Government providers. Claims involving public hospitals, university-affiliated providers, or governmental entities can carry notice deadlines as short as six months, and sometimes shorter under local charters.
- Pre-suit notice tolling. Proper 60-day notice extends limitations, but only if served correctly.
Two years sounds generous. It is not. Obtaining complete records, retaining specialists in the right fields, and producing a defensible expert report routinely consumes six to twelve months. Waiting until year two to call a lawyer is how good cases get declined — not because they lack merit, but because there is no longer time to develop them properly.
Deadline calculations are fact-specific and must be confirmed by an attorney reviewing your actual records. Do not rely on a general description, including this one, to decide when your time runs out.
Getting Your Medical Records
Records are the foundation of every medical malpractice case, and most patients request far too little.
Your Right of Access
Federal law gives you a right of access to your own medical records, and to those of a family member where you hold appropriate authority. Providers may charge a reasonable, cost-based fee and must respond within a set period. Requests should always be in writing, and you should keep a copy of what you sent and when.
What to Actually Request
Ask for the complete record, and name the components explicitly. Requests that just say “my records” routinely produce a discharge summary and little else.
- Physician progress notes and consultation notes
- Complete nursing notes and flow sheets
- Medication administration records
- All laboratory results, including preliminary and corrected results
- Imaging studies on disc, not just the radiology reports
- Operative reports and anesthesia records
- Monitoring strips and telemetry data
- Emergency department and triage records
- Consent forms and any disclosure documentation
- Discharge instructions and after-visit summaries
- Billing records, which sometimes reveal who was actually involved in care
The Audit Trail
Modern electronic health records maintain metadata showing who accessed the chart, when, what they viewed, and whether entries were made or amended after the fact — including after an adverse event.
This is frequently the most revealing material in the entire file, and it is almost never produced voluntarily. Requesting it early, in writing, and specifically by name matters, because retention practices vary and because a general records request will not capture it.
A Practical Note
Request records under your own name rather than through a lawyer at the earliest stage if you prefer. It is not an act of hostility and it does not commit you to anything. It simply preserves your ability to have someone review what happened while there is still time to act.
What Compensation May Be Available
Recoverable damages in a Texas medical malpractice case typically include:
- Past and future medical expenses, including corrective surgery and rehabilitation
- Long-term attendant care, nursing care, and life care plan costs
- Lost wages and lost earning capacity
- Assistive equipment, prosthetics, and home or vehicle modifications
- Physical pain, mental anguish, disfigurement, and physical impairment, subject to statutory caps
- Loss of consortium and household services
- In fatal cases, funeral and burial costs plus the losses recoverable in a wrongful death claim
In cases involving permanent neurological injury, paralysis, amputation, or brain damage, the damages model resembles a catastrophic injury case: economists, life care planners, and vocational experts build a decades-long projection of need.
No lawyer can promise you an amount. Anyone who quotes a number before reading your records is selling rather than evaluating.
Paying for Treatment While Your Case Is Pending
A medical malpractice case takes years, and your bills arrive now. This is the question clients ask most and law firm pages answer least.
- Health insurance. Use it. Some people avoid it thinking it will complicate the claim; it does not. Your insurer will typically assert a lien or subrogation interest against any recovery, and those amounts are frequently negotiable. Reducing them is a meaningful part of what a lawyer does for you.
- Hospital liens. Texas hospitals can assert liens against a personal injury recovery for emergency care. There is an obvious awkwardness when the lienholder is the same institution you are suing, and it is worth having identified early.
- Letters of protection. Some providers will treat now and be paid from the recovery. This can be the only realistic path for someone uninsured, but the tradeoffs are real: balances are sometimes higher than insured rates, and defense counsel routinely argues that such treatment was litigation-driven.
- Medicare and Medicaid have their own reimbursement procedures that must be followed, or serious problems follow the settlement.
The general principle: get treatment, use whatever coverage you have, keep every bill and explanation of benefits, and make sure someone is tracking every lien from the beginning rather than discovering them at settlement.
What to Do If You Suspect Medical Malpractice
Take these steps as soon as you have concerns. They cost nothing and materially strengthen an investigation.
- Get a second opinion and keep treating. Your health comes first, and continued treatment also documents the harm.
- Request your complete medical records in writing, using the list above.
- Write down what you remember now. Names, times, what you were told, who said it. Memory fades and staff rotate.
- Keep every bill, explanation of benefits, and discharge instruction sheet.
- Do not sign anything from the hospital, its insurer, or a patient relations representative without legal review. Do not accept a bill write-off in exchange for a release.
- Stay off social media about your condition and treatment.
- Do not confront the provider or demand an admission. It rarely produces useful evidence and it can prompt records to be locked down.
- Call a lawyer before the notice letter is sent, not after.
You can separately verify a provider’s license status and public disciplinary history through the Texas Medical Board physician profile search, and review the Board’s consumer and public guide on how complaints are handled. Complaints about a facility rather than an individual go to Texas HHS through its health facility complaint process.
Board Complaints Versus Lawsuits
These are parallel tracks, not alternatives, and confusing them costs people their claims.
- A licensing board complaint is a regulatory action. It can result in discipline against a license. It does not compensate you, it does not pause your legal deadline, and the board does not represent you.
- A lawsuit is how compensation happens. It runs on the Chapter 74 timeline described above regardless of what any regulator is doing.
- Board proceedings are largely confidential, and the outcome may not be usable in your civil case in the way people expect.
File a complaint if you want the conduct reviewed by regulators. Many families find that meaningful entirely apart from money. Just do not let it delay speaking with an attorney, because the two clocks run independently and only one of them stops your claim.
How We Investigate a Medical Malpractice Claim
Our process is deliberately front-loaded, because Chapter 74 punishes cases filed before they are ready.
1. Free Case Review
We listen to the full timeline in your words, identify every provider and facility involved, and flag any deadline risk immediately. No cost, no obligation.
2. Complete Record Collection
We obtain the entire chart rather than the summary, including nursing documentation, medication administration records, imaging files rather than just reports, and electronic health record audit trails. Gaps and late entries are often where a case is won.
3. Independent Medical Review
Records go to qualified practicing specialists in the relevant field, selected to satisfy Chapter 74’s expert qualification requirements for the specific defendants involved.
4. Honest Case Assessment
If the medicine does not support a claim, if causation cannot be proven, or if the recoverable damages will not justify the cost of litigation, we tell you plainly. Declining a case you cannot win is a service, not a rejection.
5. Statutory Notice and Filing
When the case is supported, we serve the 60-day notice with the required authorization, then file in the appropriate court — often the district courts served by the Travis County District Clerk or the equivalent in Williamson, Hays, Bell, or Bastrop County.
6. Expert Report, Discovery, and Resolution
We serve the Chapter 74 expert report within the statutory window, then move through written discovery, depositions of treating providers, and defense expert challenges. Most cases resolve through negotiation or mediation. We prepare each one as though it will be tried, because that preparation drives settlement value.
How a Medical Malpractice Case Actually Proceeds
People want to know how long this takes. A realistic map:
Months One Through Three
Records requested and collected. Deadline analysis completed. Providers and entities identified, including which physicians were contractors rather than employees.
Months Three Through Nine
Expert review. This is the slowest phase and the one clients find hardest, because it looks like nothing is happening. It is where the case is actually decided.
Notice and Filing
The 60-day notice is served, then suit is filed. Defendants answer, which starts the 120-day expert report clock.
The Expert Report Fight
Reports are served and challenged. Expect motions to dismiss, possible cure periods, and possible interlocutory appeals. This phase alone can add a year or more.
Discovery
Written discovery, document production, and depositions of the treating providers and corporate representatives.
Mediation and Resolution
Most cases that survive the expert report challenge resolve at mediation. Overall timelines commonly run two to four years, longer where appeals occur.
What the Defense Will Do
- Risk management moves first. Many hospitals begin an internal review within hours of a bad outcome, long before you suspect anything — and that review is generally privileged.
- “Known complication” is the default defense. Expect the argument that your outcome was an accepted risk you consented to.
- Blame gets distributed. Contractor physicians and the hospital may each point at the other, which is why every potential defendant has to be identified early.
- Your prior medical history will be examined in detail. Pre-existing conditions are used to argue the harm would have happened anyway.
- Aggressive expert report challenges, followed by appeals if they lose. Standard, not a sign of weakness.
- Arguments that the emergency care standard applies, converting an ordinary negligence case into a far harder one.
- Early, modest settlement offers, sometimes before you understand the scope of your future care needs.
Questions Worth Asking Any Lawyer You Consider
- Do you handle medical malpractice regularly, or mostly other injury work? Chapter 74 is unforgiving and rewards familiarity.
- Who will review my records, and are they qualified under Chapter 74 for these specific defendants?
- Who advances the expert costs, and what happens to them if we do not recover? These are substantial in medical cases.
- What is your read on causation, not just on whether the care was poor? Causation defeats more claims than breach does.
- Given the caps, is this case economically viable? A lawyer willing to discuss this candidly at the first meeting is telling you something useful.
- How long do you expect this to take, and why?
- Who will actually work my file, and can I reach an attorney?
Why Patients Choose Kelley Wolff Injury Attorneys
Medical malpractice is not a volume practice and should not be handled like one.
- Straight answers early. You will know quickly whether we think you have a case, and why.
- Selective caseload. We take fewer medical cases so each one gets real attention from the attorneys.
- Serious record work. We read the chart line by line, including nursing documentation and audit trails that summary reviews miss.
- Qualified experts in the right specialty. Texas is strict about expert qualifications, and we match the expert to the defendant’s field and setting.
- Candor about the caps. If the economics do not work, you will hear it from us in month one rather than year two.
- We handle the liens, because what you keep matters more than the headline number.
- Local practice. We know the courts and procedures across Travis and the surrounding counties.
- Contingency representation. No attorney’s fee unless we recover, and we advance the case costs, including expert fees, which are substantial in medical cases.
- Direct attorney access. You will be able to reach Travis S. Kelley and Colin Wolff about your case.
Talk to an Austin Medical Malpractice Attorney Today
If you believe you or someone you love was harmed by medical negligence in Austin or anywhere in Central Texas, the most valuable thing you can do right now is get the records reviewed while the deadline is still comfortably ahead of you.
Texas builds more procedural obstacles into these cases than into any other kind of injury claim, and every one of them rewards starting early. The hospital already knows what happened. Getting to that same answer independently takes months.
Kelley Wolff Injury Attorneys offers a free, confidential case review. We will tell you honestly what we see, including when the answer is that we cannot help. If we take your case, you pay no attorney’s fee unless we recover compensation for you.
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Frequently
Asked Questions
Your Most Common Personal Injury Questions—Answered
What should I do first if I suspect a birth injury?
Request the complete records in writing for both mother and baby, including prenatal, labor and delivery, and NICU records. If the birth was recent, ask whether the placenta was sent to pathology. Write down what you remember while it is still fresh. Then speak with an attorney about your deadlines.
Should I use early intervention services while a claim is pending?
Yes, without hesitation. Texas ECI serves children from birth to 36 months, and you can self-refer without a physician referral or a diagnosis. Early intervention has measurable effects on developmental outcomes, it does not harm a legal claim in any way, and it documents your child’s needs, which strengthens the damages case.
What if my own injuries as the mother were the problem?
You may well have your own claim. Severe postpartum hemorrhage managed too slowly, undiagnosed uterine rupture, retained placenta, anesthesia complications, and untreated preeclampsia are all recognized bases for maternal claims. Maternal injuries are frequently treated as an afterthought by other firms, and they should not be. Bring your own records too.
Do I have to go to court?
Most birth injury cases resolve at mediation rather than going to trial. However, settlements involving a minor require court approval in Texas, and a judge may appoint a guardian ad litem to review whether the proposed settlement genuinely serves your child’s interests. That review step exists to protect your child.
How long does a birth injury case take?
Usually two to four years, and sometimes longer than that. Record collection and multi-specialty expert review alone often take a year before suit is filed. Expert report challenges can add an interlocutory appeal. Life care planning also takes time, because the full scope of need becomes clearer as your child develops.
What does a birth injury lawyer cost?
Nothing upfront. We handle birth injury cases on a contingency fee, so our fee comes from the recovery and you owe no attorney’s fee unless we recover for your family. We advance all of the case costs, which are substantial because multiple medical experts must review the records. Consultations are free.
What will the defense argue caused my child’s injury?
Most often that the harm was antenatal — occurring weeks before labor from infection, genetics, or a stroke in utero — and that nothing the delivery team did would have changed it. Expect requests for genetic testing and a competing interpretation of the placental pathology. Independent expert review answers both.
What is a guardian ad litem and why would one be appointed?
A guardian ad litem is appointed by the court to independently represent your child’s interests when a settlement involves a minor. Texas courts review and approve such settlements. The appointment is protective of your child rather than adversarial to you, and it is a routine part of resolving these cases.
Will a settlement affect my child’s Medicaid or SSI?
It can, if the recovery is not structured properly. Funds paid directly to a disabled child may count as a resource and disqualify them from means-tested programs such as Medicaid and SSI. Special needs trusts and structured settlements are designed to prevent exactly that. Plan for it well before settlement.
Are birth injury damages capped in Texas?
Noneconomic damages are capped, generally at $250,000 against physicians combined and $250,000 per institution, up to $500,000 across institutions. Economic damages are not capped at all. In birth injury cases, lifetime medical care, attendant care, equipment, and lost earning capacity are usually by far the largest part of any recovery.
Can I get the hospital’s internal investigation of what happened?
Usually not. Texas law makes medical peer review and committee proceedings confidential and generally not discoverable without a written waiver. However, the privilege does not cover records kept in the regular course of business — the chart, monitoring strips, nursing notes, and staffing records all remain obtainable through the case.
Why do these cases need so many different experts?
Because Texas requires an expert report addressing each defendant specifically, and a birth injury case typically involves an obstetrician, labor and delivery nurses, a neonatologist, and a hospital. A single obstetrician’s report will not support claims against nursing staff or the facility. Each expert must also meet statutory qualification requirements.
Can I still bring a claim if my child is already several years old?
Possibly, but the analysis is urgent and fact-specific. Your own claim for medical expenses may already be at risk, your child’s deadline depends on unsettled law, and the ten-year statute of repose is an absolute barrier. Do not assume you are out of time, and do not assume you have plenty.
Why does the placenta matter so much?
Because placental pathology can distinguish an acute event during labor from a chronic process that began weeks earlier, which is the central question in most birth injury cases. Many hospitals discard placentas after a set period. If your delivery was recent, ask in writing whether it went to pathology and whether slides remain.
What is therapeutic cooling and can failing to provide it be malpractice?
Therapeutic hypothermia is controlled cooling of qualifying newborns with moderate to severe HIE, and it generally must begin within roughly six hours of birth to be effective. Failing to identify a candidate, initiate cooling in time, or transfer the baby to a facility able to provide it can support a separate claim.
What is HIE and why does it matter to my case?
Hypoxic-ischemic encephalopathy is brain injury caused by reduced oxygen or blood flow around the time of birth. It matters because it is often preventable and objectively documentable. Cord blood gas values, MRI patterns, and fetal monitoring records help establish whether it occurred during labor and whether the response met the standard of care.
Is cerebral palsy always caused by malpractice?
No. Most cerebral palsy is congenital and traces to causes arising before labor begins, including infection, prematurity, stroke in utero, and genetic factors. A meaningful subset does result from preventable oxygen deprivation during delivery. Medical records, imaging, and placental pathology allow qualified experts to reliably distinguish between the two causes.
Why do my child and I have different deadlines?
Because Texas treats them as two separate claims. The right to recover a child’s medical expenses incurred before age 18 generally belongs to the parents, and a parent’s claim is not extended by the child’s age. Families who wait often preserve the child’s claim while losing the much larger medical expense claim entirely.
How long do I have to file a birth injury claim in Texas?
Two deadlines run separately, which surprises most families. Your own claim for your child’s medical expenses generally follows the standard two-year health care liability deadline. Your child’s claim may run longer, but that area of Texas law remains unsettled. A ten-year statute of repose caps everything regardless of which applies.
How do I know if my child’s injury was caused by medical negligence?
You cannot know from the outside. Objective evidence decides it: fetal monitoring strips, umbilical cord blood gas values, Apgar scores, the timing and pattern of MRI findings, and placental pathology. Qualified specialists use these records to determine whether the injury occurred during labor and whether earlier intervention would have prevented it.
What should I do first if I suspect malpractice?
Get a second opinion and keep treating, because your health comes first. Request your complete records in writing using a detailed component list. Write down names, dates, and what you were told while it is fresh. Do not sign anything from the hospital or its insurer. Then contact an attorney.
Should I contact the hospital’s patient relations office?
You can, but do not sign anything they offer without legal review, and never accept a bill write-off in exchange for a release. Patient relations works for the hospital, not for you. Reporting a concern is reasonable; resolving your claim through that office before understanding your options generally is not.
Who pays my medical bills while the case is pending?
Generally you or your health insurance, because no defendant pays bills as they arrive and these cases take years. Use your health insurance and expect a lien or subrogation interest against any recovery, which is typically negotiable. Hospital liens and any Medicare or Medicaid reimbursement obligations also need addressing early on.
Can I still recover if I was partly responsible?
Possibly. Texas applies proportionate responsibility. If you are found 50 percent or less at fault, you may recover damages reduced by your percentage of fault. If you are found more than 50 percent responsible, you recover nothing at all. Defendants frequently argue patient noncompliance or missed appointments to shift blame.
Why are emergency room cases harder in Texas?
Texas requires proof of willful and wanton negligence for care provided in a hospital emergency department, and in obstetrical and surgical settings immediately following emergency treatment. That is a substantially higher bar than ordinary negligence, and defendants argue for its application aggressively because it is so difficult for a claimant to meet.
What if I signed a consent form before the procedure?
A consent form does not waive your right to competent care. It acknowledges the known risks of a properly performed procedure. It does not excuse negligent performance, a missed diagnosis, or a failure to respond to complications. It also does not protect a provider who never disclosed a material risk.
Does filing a Texas Medical Board complaint help my lawsuit?
It is a separate track. A Board complaint can trigger licensing discipline, but it does not compensate you, does not pause your legal deadline, and does not replace a lawsuit. File one if you want the conduct reviewed by regulators, but do not let it delay speaking with an attorney about your claim.
Will my medical malpractice case go to trial?
Most do not. Many resolve through negotiation or mediation after the expert report survives challenge and the key depositions are complete. That said, cases settle for fair value only when the defense genuinely believes you are prepared to try them, so we build every file with trial in mind from the start.
What is an audit trail and why does it matter?
It is the metadata in an electronic health record showing who accessed the chart, when, what they viewed, and whether entries were made or amended after the fact. It is frequently the most revealing material in the file, and it is almost never produced unless you request it specifically and by name.
How do I get my complete medical records?
Submit a written request to the facility’s health information management department and name each component explicitly. Ask for nursing notes, medication administration records, imaging on disc, operative and anesthesia records, monitoring data, and the electronic chart audit trail. A general request will typically produce only a discharge summary and very little else of use.
What if a family member died from medical negligence?
Surviving spouses, children, and parents may bring a wrongful death claim, and the estate may bring a survival claim for the harm suffered before death. Both are health care liability claims subject to Chapter 74’s pre-suit notice and expert report requirements, and fatal cases have their own separate damages limit.
Can I get the hospital’s internal investigation of what happened?
Usually not. Texas law makes medical peer review committee proceedings and records confidential and generally not discoverable without a written waiver from the committee. However, the privilege does not cover records kept in the regular course of business — the chart, nursing notes, imaging, and staffing records all remain obtainable.
Can I sue a hospital, or only the doctor?
You may be able to sue both. Hospitals can be directly liable for negligent staffing, credentialing, policies, equipment, or infection control, and vicariously liable for their employees. However, many physicians working inside a hospital are independent contractors carrying separate insurance, so identifying every correct defendant early is critical to your recovery.
Why do the caps make some cases impossible to bring?
Because expert and litigation costs in medical malpractice routinely reach six figures. Where a patient has limited lost earning capacity — often retirees and children before working age — most of what they lost falls into the capped category, and the economics may not support litigation regardless of how clear the negligence was.
Are medical malpractice damages capped in Texas?
Noneconomic damages are capped. The general limits are $250,000 against physicians and individual providers combined, and $250,000 per health care institution, up to $500,000 across multiple institutions. Economic damages such as past and future medical bills, life care costs, and lost future earning capacity are not capped at all.
How much does it cost to hire a medical malpractice lawyer?
Nothing upfront. We handle medical malpractice cases on a contingency fee, so our fee comes out of the recovery and you owe no attorney’s fee unless we recover for you. We advance the case expenses, including expert review fees, which are substantial in medical cases. The consultation itself is always free.
Why do medical malpractice cases take so long in Texas?
Expert review before a case is even filed takes six to twelve months on its own. After filing, defendants routinely challenge the expert report, and an order denying dismissal is immediately appealable, which can add a year before discovery meaningfully begins. Two to four years is typical, and appeals extend that further still.
What is the 120-day expert report requirement?
Texas requires you to serve each defendant a qualified expert report within 120 days of that defendant filing an original answer. The report must state the applicable standard of care, explain how that defendant breached it, and connect the breach to your injury. Missing it triggers mandatory dismissal with prejudice.
How long do I have to file a medical malpractice claim in Texas?
Generally two years from the negligent act, the end of the related course of treatment, or the end of the hospitalization. A ten-year statute of repose caps all claims regardless of discovery. Special rules apply to children, and claims against government providers can carry notice deadlines as short as six months.
How do I know if I have a medical malpractice case in Texas?
You likely have a case if a provider’s care fell below accepted medical standards and that failure caused real harm. A bad outcome alone is not enough. The only reliable way to know is to have your complete medical records reviewed by a lawyer and a qualified specialist practicing in the relevant field.
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