Medical Malpractice “reform” has been a mantra of politicians for years. Texas has all but declared a “state of emergency” to prevent “frivolous” medical malpractice cases. Texans have listened, believed and followed their elected officials. Interestingly, those same officials never talk about the complex process in place, right now, to filter out “frivolous” medical malpractice claims. This is a procedure lawyers face every day.

Medical malpractice is really just a way of saying that a health care provider was negligent in his care of a patient. Though it is a species of negligence, medical negligence claims require a higher degree of proof than ordinary negligence. In a general negligence lawsuit, you are responsible for actions that injure another if you knew, or should have known, that your actions could injure the other person. For example, if you drive through a four way stop intersection, but don’t look or stop, and hit another car that was already there, then you may be negligent for causing the accident. The test of your negligence is to answer the question, “What would a reasonably prudent person have done under the same or similar circumstances? When filing a legal negligence claim against a lawyer, or an accounting negligence claim against a C.P.A., the test of their negligence s, “What would a reasonably prudent professional have done under the same or similar circumstances? Not so with health care professionals.

Medical negligent cases are different because the legal standard to meet is not “what a reasonably prudent health care provider would do under the same or similar circumstance.” Instead, it is whether the conduct was outside the “accepted standard of medical care.” The “accepted standard of medical care” for any given situation is a moving target. I describe it as a sliding scale of 1 to 10. Ten represents the very best medical care you can get. One represents the very worst medical care you can receive that is still “acceptable” to health care providers. To meet the very first requirement of a medical negligence claim, the health care has to fall beneath a “1” on my scale.

Once you file a medical malpractice claim, you can not proceed with the lawsuit until you serve a written medical report upon the health care provider. The medical report must be filed based upon the medical records alone. You may take no depositions or do discovery of any kind. Thus, you must depend upon the health care provider to surrender all records of the patient. The report must be served within 120 days of filing the lawsuit. If you do not provide the report, the judge must dismiss the case and charge the person filing the suit with the health care professional’s attorney fees.

The written medical report is an opinion provided by an expert, usually a physician, but potentially a nurse or other health care provider. The expert must meet the following qualifications: (1) He must be practicing medicine at the time the report is submitted or when the claim arose; (2) he must have knowledge of the accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved n the claim; and (3) he must be qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care. Further, to determine whether the expert’s training or experience makes him qualified, the court considers whether the expert (1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim and (2) is actively practicing medicine in rendering medical-care services relevant to the claim.

The expert’s report must (1) identify the medical standard of care; (2) explain how the standard was breached; (3) identify how the breach of the standard of care caused the injury and (4) generally provide the basis for the trial court to conclude that the medical negligence case has merit. Even after providing the expert report, the health care provider may object to the sufficiency of the report and, if the court finds that the expert did not make a good faith effort to fulfill the statutory requirements in the report, the court must dismiss the suit. If the report is sufficient, the case may proceed. So, what do you think? Is there enough protection for the health care providers? If not, what further protection would you suggest?