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How to File a Medical Malpractice Claim in Texas

If you are a patient who is experiencing a health problem, you trust your medical provider to act in a way that protects your health, safety, and best interests. If a doctor, nurse or another health care professional falls short of the accepted standards of care when treating you, however, you may be able to recover compensation for your losses. The simplest and most effective way to file a medical malpractice claim in Texas is with help from an experienced injury attorney in Austin.

File a Complaint Against the Health Care Provider

Your first step before taking legal action should be to file an official complaint against the medical provider for professional negligence, which is when a professional fails to perform his or her duties competently, resulting in harm or injury to a patient.

You can file a complaint against a medical practitioner with the Texas Medical Board and the Texas Health and Human Services Commission. These agencies can investigate your complaint and may take action to penalize a negligent physician and ensure safe and responsible patient care in the future.

Contact a Lawyer to Determine if You Have a Claim

When you are ready to pursue financial compensation for your injuries due to medical malpractice in Texas, the first thing you should do is contact an attorney who offers free case reviews. You can meet with the attorney and tell your story during a free consultation that can help you determine whether or not you have grounds to file a medical malpractice claim.

The legal definition of medical malpractice is when a healthcare professional fails to meet the accepted standard of care, resulting in injury or harm to a patient. Establishing a medical malpractice claim takes evidence that the accused party or defendant owed the victim (plaintiff) a professional duty of care, breached or violated this duty, and that this caused the patient’s injury, illness or death.

Learn Your Statute of Limitations

Texas Civil Practice and Remedies Code Section 74.251 is known as Texas’s statute of limitations on medical malpractice claims. This law imposes a strict time limit on a victim’s right to file a claim. In general, if you wait too long and miss your statute of limitations, the courts will bar your right to file. It is important to take legal action as soon as possible.

State law gives most patients a maximum of two years to file a medical malpractice claim. The clock will start counting down on the date of the incident or the date of reasonable discovery of the injury. Regardless of the date of discovery, however, there is a statute of repose (final deadline) of 10 years to file a claim.

Identify the Responsible Party or Parties

The next step in filing a medical malpractice claim is to identify the individual or entity you wish to hold responsible for your injuries. An attorney can help you by conducting a thorough investigation of the incident. Individual healthcare providers as well as medical institutions may be held liable, or financially responsible, for medical malpractice claims.

Gather Evidence and Documentation

As the plaintiff in a medical malpractice claim, you bear the burden of proof, meaning you or your attorney must establish that what you are claiming is more likely to be true than not true. This is known as a preponderance of the evidence. You can support your case early on by collecting as much evidence as you can.

Examples of evidence include:

  • Medical records
  • Imaging scans and test results
  • Doctor’s notes
  • Witness statements
  • Medical expert testimony
  • Photographs and imaging
  • Informed consent documentation
  • Hospital protocols and policies
  • Financial records and proof of losses

Collecting and presenting compelling evidence is essential for a successful medical malpractice claim in Texas. An attorney who specializes in medical malpractice law can help you preserve, gather, and present evidence to build a strong case on your behalf.

Send a Notice to the Hospital

Texas law (Civil Code Section 74.051) requires claimants to give a written notice to the defendant(s) of any health care liability claim at least 60 days before filing a lawsuit. This notice must be sent by certified mail to each party against whom the claim is being made. It must also be accompanied by the Authorization to Disclose Protected Health Information form, which gives the defendant the right to access your medical records.

File Your Claim

Next, your medical malpractice attorney can help you with the legal processes required to file a claim. This may include sending a demand letter to the defendant’s insurance company in an attempt to reach a settlement without having to go to court. The demand letter is an official document outlining the facts of a case, the losses experienced by a plaintiff and the amount of money being sought to resolve the legal dispute.

If the healthcare provider’s insurer accepts the claim, it will offer a settlement that your lawyer can help you negotiate. If the claim is rejected or the defendant refuses to offer a fair settlement, however, your case may have to go to court. This will involve filing a medical malpractice lawsuit with the civil courthouse in your county.

Hire a Medical Expert

Once a plaintiff files a medical malpractice lawsuit and receives an answer or response from the defendant, state law in Texas requires the plaintiff and the plaintiff’s attorney to serve an “expert report” on the defendant within 120 days.

The expert report is a document that has a summary of a relevant medical expert’s opinion as to the standards of care and whether the defendant failed to meet these standards. Your lawyer can help you hire a highly qualified medical expert to fulfill this requirement.

Go to Trial, if Necessary

Many personal injury cases, including medical malpractice claims, reach settlements before they go to court. If your Austin medical malpractice lawyer believes going to trial is in your best interest, however, he or she can guide you through the complex legal process.

A medical malpractice trial starts with the discovery process, or the gathering of evidence, information, depositions, and interrogatories from the other side of the case. It may also involve pretrial litigation and alternative dispute resolution, such as mediation or arbitration.

During the trial itself, both sides of the case will have the opportunity to present evidence and witnesses. The court will then decide whether the plaintiff met the burden of proof and deserves financial compensation from the defendant for related losses.

If you wish to file a medical malpractice claim in Texas, contact the team of attorneys at FVF Law at (512) 640-2146 to start with a free consultation. We can guide you through each step of the legal process at no cost upfront.


Fogelman & Von Flatern is a personal injury law firm that believes it matters why we practice law: to make sure good people in unfair circumstances who want reasonable options are taken seriously, especially by their attorney. We value transparency, compassion, and justice, and we strive to embody that in our practice. At FVF, you can trust that you've got the best people on your case, for the right reasons.

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