Good evening! I can help you out with your legal question tonight.
Are you located in TX and was the procedure done in TX?
Also, did this happen within two years prior to today?
A health care liability claim must be commenced within two years from the occurrence of the breach or tort or from the completion of treatment or hospitalization. Tex. Civ. Prac. & Rem. Code. § 74.251(a) (Westlaw 2007). Only if the actual date of the tort cannot be ascertained should time be measured from the last date of a course of treatment. Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). This statute, rather than the statute of limitations for wrongful death, applies in health care liability claims for death. Bala v. Maxwell, 909 S.W.2d 889, 892-893 (Tex. 1995). Although the statute says that the two-year time period begins to run against minors at age twelve, the Texas Supreme Court held that similar language in the predecessor statute was unconstitutional, allowing those whose claims accrued before their eighteenth birthdays to sue at any time until age twenty. Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995). This holding has been applied under the current statute. Adams v. Gottwald, 179 S.W.3d 101 (Tex. App. 2005, review denied).
Time may begin to run before an injury is discovered. Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex. 1997). However, the courts have held that in certain cases (not including death cases), application of the statute is unconstitutional if it would bar a claim before the claimant has a reasonable opportunity to discover the wrong and bring suit. Shah, 67 S.W.3d at 842; Neagle v. Nelson, 685 S.W.2d 11 (Tex. 1985). For cases filed on or after September 1, 2003, a new statute of repose bars any claim filed more than ten years after the act or omission giving rise to the claim. Tex. Civ. Prac. & Rem. Code § 74.251(b) (Westlaw 2007). There are no reported decisions yet ruling on the constitutionality of the statute of repose in light of cases like Neagle.
A plaintiff must, within 120 days of filing a health care liability claim, provide expert reports addressing the issues of liability and causation for each physician or health care provider against whom a claim is asserted. The court may grant one 30-day extension to correct a deficient report; otherwise, it must on motion dismiss with prejudice the case against a defendant for whom there is no report and award reasonable attorneys’ fees. Tex. Civ. Prac. & Rem. Code. § 74.351 (Westlaw 2007). Expert testimony is ordinarily needed at trial to establish medical malpractice, Hart v. Van Zandt, 399 S.W.2d 791 (Tex. 1965), but even if expert testimony is not needed at trial, an expert report must be served. Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005) (decided under a similar statute applicable to cases filed before September 1, 2003). Factors to be considered in determining whether an expert is qualified to testify, including board certification or other substantial training or experience, are set out in Tex. Civ. Prac. & Rem. Code. § 74.401 to .403 (Westlaw 2007).
So in summary, you will need to file the suit within two years of the surgical procedure. Then have an expert report (some medical doctor saying what the prior doctor did wrong) within 120 days of filing.
Yes it happened in Texas on July 18 2012
Yes it did happen in Texas on July 18 2012
Ok great, you are still within the statute of limitations.
Ok so what steps do i take now
I would recommend getting an attorney first, since these cases can be complicated. Then draft up the complaint and coordinate an expert report with another doctor.
Then file the complaint and thereafter the expert report.
Should find a doctor that specializes in medical microbiology
So long as the doctor is credible and can persuade the jury, then he/she can file the report. However, obviously the closer in skill set the more credible the witness would be.
Thank you for answering my questions so these are all the steps i need to take right
Yes, that is correct. The expert report is the main item people forget and the case will be dismissed without it.
You are very welcome! Have a good night and please leave me feedback before you go.
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