Medical Malpractice Original Petition (Health Care Liability Claim) - Texas

PLAINTIFF'S ORIGINAL PETITION — HEALTH CARE LIABILITY CLAIM — TEXAS

TABLE OF CONTENTS

1. Caption
2. Discovery-Control Plan
3. Parties
4. Jurisdiction and Venue
5. Conditions Precedent — Chapter 74 Pre-Suit Notice
6. Factual Background
7. Count I — Negligence (Physician Defendant)
8. Count II — Negligence (Health Care Institution Defendant)
9. Count III — Vicarious Liability / Ostensible Agency
10. Damages
11. Rule 47 Statement of Relief
12. Chapter 74 Acknowledgments
13. Jury Demand
14. Request for Disclosure and Discovery Reservations
15. Prayer for Relief
16. Signature and Certificates
17. Texas Practice Notes
18. Sources and References

1. CAPTION

CAUSE NO. [________________________________]

IN THE DISTRICT COURT OF

[COUNTY] COUNTY, TEXAS

[___] JUDICIAL DISTRICT

PLAINTIFF'S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Plaintiff [PLAINTIFF NAME] ("Plaintiff") and files this Original Petition complaining of Defendants [PHYSICIAN NAME], [INSTITUTION NAME], and [EMPLOYER GROUP] (collectively, "Defendants"), and would respectfully show the Court as follows:

2. DISCOVERY-CONTROL PLAN

1.1. Pursuant to Texas Rule of Civil Procedure 190.4, Plaintiff intends to conduct discovery under Discovery Control Plan — Level 3. A health care liability claim governed by Chapter 74 is not eligible for expedited treatment under Rule 169 because the monetary relief sought, the expert-report requirements of § 74.351, and the complexity of medical-causation proof exceed Level 1 limits.

1.2. Plaintiff will tender a proposed scheduling order under Rule 190.4(b) within thirty (30) days after the appearance of the last-served Defendant.

3. PARTIES

2.1. Plaintiff [PLAINTIFF NAME] is an individual residing in [COUNTY] County, Texas. The last three digits of Plaintiff's driver's license number are [___] and the last three digits of Plaintiff's Social Security number are [___], in compliance with Tex. R. Civ. P. 79.

2.2. Defendant [PHYSICIAN NAME], M.D. ("Physician Defendant") is a "physician" as defined by Tex. Civ. Prac. & Rem. Code § 74.001(a)(23), licensed by the Texas Medical Board and practicing in [COUNTY] County. Physician Defendant may be served with process at [PRACTICE STREET ADDRESS], [CITY, TEXAS ZIP], or wherever found.

2.3. Defendant [INSTITUTION NAME] ("Hospital Defendant") is a "health care institution" within the meaning of § 74.001(a)(11) — specifically, [hospital / nursing home / ambulatory surgical center / assisted-living facility / hospice]. Hospital Defendant is a [Texas non-profit corporation / limited liability company / for-profit corporation] organized under the laws of the State of Texas with its principal place of business at [ADDRESS]. Hospital Defendant may be served with process by serving its registered agent, [REGISTERED AGENT NAME], at [REGISTERED AGENT ADDRESS], in accordance with Tex. Bus. Orgs. Code § 5.201.

2.4. Defendant [EMPLOYER GROUP NAME], P.A. ("Group Defendant") is a Texas professional association that, on information and belief, employed Physician Defendant and held Physician Defendant out as its agent at all relevant times. Group Defendant may be served through its registered agent, [NAME], at [ADDRESS].

4. JURISDICTION AND VENUE

3.1. Subject-matter jurisdiction. This Court has subject-matter jurisdiction because the amount in controversy, exclusive of interest and costs, exceeds the minimum jurisdictional limits of this Court. Health care liability claims are not within the jurisdiction of a justice court.

3.2. Personal jurisdiction. Each Defendant is a resident of, or maintains its principal office in, the State of Texas; provides health care services to Texas patients; and has engaged in conduct giving rise to this claim within Texas. Personal jurisdiction is therefore proper.

3.3. Venue. Venue is proper in [COUNTY] County, Texas, pursuant to Tex. Civ. Prac. & Rem. Code § 15.002(a)(1) because all or a substantial part of the events or omissions giving rise to the claim occurred in [COUNTY] County, and additionally under § 15.002(a)(3) because Hospital Defendant maintains its principal office in [COUNTY] County.

5. CONDITIONS PRECEDENT — CHAPTER 74 PRE-SUIT NOTICE

4.1. All conditions precedent to the maintenance of this action have been performed, have occurred, or have been waived.

4.2. Sixty-day notice. On [DATE — at least 60 days before filing], Plaintiff served each Defendant with written notice of this health care liability claim by certified mail, return receipt requested, in compliance with Tex. Civ. Prac. & Rem. Code § 74.051(a). The 60-day pre-suit notice period elapsed on [DATE], before the filing of this Original Petition.

4.3. Authorization for release of protected health information. Each notice was accompanied by an authorization form for release of protected health information conforming to Tex. Civ. Prac. & Rem. Code § 74.052, listing all relevant providers and complying with HIPAA, 45 C.F.R. § 164.508. True and correct copies of the certified-mail return receipts and signed authorizations are retained in counsel's file and will be produced upon request of the Court.

4.4. Tolling. Pursuant to § 74.051(c), the giving of the foregoing notice tolled the applicable statute of limitations for 75 days following the date of mailing.

4.5. Statute of limitations. This action is timely filed under Tex. Civ. Prac. & Rem. Code § 74.251(a) because it is commenced within two years of the [breach / completion of the relevant course of treatment / completion of hospitalization], which occurred on [DATE], as tolled by the § 74.051(c) notice provisions. The act or omission giving rise to this claim occurred well within the 10-year statute of repose set forth in § 74.251(b).

6. FACTUAL BACKGROUND

5.1. On or about [DATE], Plaintiff presented to [INSTITUTION / PHYSICIAN'S OFFICE] with [CHIEF COMPLAINT / PRESENTING SYMPTOMS].

5.2. Plaintiff was evaluated by Physician Defendant, who recommended [TREATMENT / PROCEDURE / DIAGNOSTIC PLAN].

5.3. On [DATE], Physician Defendant performed/rendered [PROCEDURE / CARE] at Hospital Defendant's facility located at [ADDRESS].

5.4. During the course of that care, Physician Defendant [DESCRIBE NEGLIGENT ACT / OMISSION — e.g., failed to diagnose; performed wrong-site surgery; failed to obtain informed consent; mismanaged anesthesia; failed to monitor; misread imaging; prescribed contraindicated medication].

5.5. As a direct and proximate result of the substandard care, Plaintiff suffered [DESCRIBE INJURY — e.g., permanent neurologic deficit; loss of organ function; need for additional surgeries; sepsis; permanent disability].

5.6. Plaintiff has since required [ONGOING TREATMENT, REHABILITATION, FUTURE PROCEDURES] and has incurred medical expenses, lost income, and noneconomic damages described below.

7. COUNT I — NEGLIGENCE (Physician Defendant)

6.1. Plaintiff incorporates by reference paragraphs 1.1 through 5.6 as if fully restated.

6.2. Physician Defendant owed Plaintiff a duty to exercise that degree of care, skill, and diligence ordinarily exercised by reasonably prudent [SPECIALTY] physicians under the same or similar circumstances.

6.3. Physician Defendant breached that duty by, among other failures:

• ☐ Failing to obtain a complete and accurate medical history;
• ☐ Failing to order, interpret, or act upon [DIAGNOSTIC TEST / IMAGING];
• ☐ Failing to timely diagnose [CONDITION];
• ☐ Performing [PROCEDURE] without appropriate indication, technique, or supervision;
• ☐ Failing to obtain valid informed consent in compliance with Tex. Civ. Prac. & Rem. Code § 74.101 and the Texas Medical Disclosure Panel List A/B requirements;
• ☐ Prescribing or administering [MEDICATION / DOSAGE] contraindicated for Plaintiff;
• ☐ Failing to monitor Plaintiff post-procedure and to recognize and respond to clinical deterioration;
• ☐ Failing to consult or refer to an appropriate specialist;
• ☐ [OTHER ACT OR OMISSION].

6.4. Each breach proximately caused Plaintiff's injuries and damages.

6.5. Plaintiff will serve on Physician Defendant an expert report and curriculum vitae of an expert qualified under Tex. Civ. Prac. & Rem. Code §§ 74.401 and 74.403 not later than the 120th day after Physician Defendant's original answer is filed, as required by § 74.351(a).

8. COUNT II — NEGLIGENCE (Health Care Institution Defendant)

7.1. Plaintiff incorporates by reference paragraphs 1.1 through 6.5.

7.2. Hospital Defendant owed Plaintiff a duty of ordinary care in the operation of its facility, the credentialing and supervision of its staff, the implementation of patient-safety protocols, and the provision of competent nursing and ancillary care.

7.3. Hospital Defendant breached that duty by, among other failures:

• ☐ Negligently credentialing, retaining, and granting privileges to Physician Defendant despite [KNOWN OR REASONABLY KNOWABLE COMPETENCY CONCERNS];
• ☐ Failing to enforce written policies governing [SURGICAL TIME-OUTS / MEDICATION RECONCILIATION / FALL PREVENTION / PRESSURE-INJURY PROTOCOLS / SEPSIS BUNDLE];
• ☐ Failing to provide adequate nursing staffing levels consistent with the acuity of patients on the [UNIT];
• ☐ Failing to maintain functioning equipment, including [EQUIPMENT];
• ☐ Failing to ensure that nurses, technicians, and ancillary staff complied with the standard of care;
• ☐ [OTHER INSTITUTIONAL FAILURE].

7.4. Each breach proximately caused Plaintiff's injuries.

7.5. Plaintiff will serve on Hospital Defendant an expert report and curriculum vitae of an expert qualified under Tex. Civ. Prac. & Rem. Code §§ 74.402 and 74.403 not later than the 120th day after Hospital Defendant's original answer.

9. COUNT III — VICARIOUS LIABILITY / OSTENSIBLE AGENCY

8.1. Plaintiff incorporates by reference paragraphs 1.1 through 7.5.

8.2. At all relevant times, Physician Defendant was an actual or apparent agent, servant, or employee of Group Defendant and/or Hospital Defendant, acting within the course and scope of that agency.

8.3. In the alternative, Hospital Defendant held Physician Defendant out as its agent through signage, branding, billing, electronic-health-record integration, and the absence of conspicuous notice that Physician Defendant was an independent contractor; Plaintiff reasonably relied on those representations in seeking care, satisfying the ostensible-agency doctrine recognized in Baptist Memorial Hospital System v. Sampson, 969 S.W.2d 945 (Tex. 1998).

8.4. Group Defendant and Hospital Defendant are therefore vicariously liable for the negligence of Physician Defendant pleaded in Count I.

10. DAMAGES

9.1. As a direct and proximate result of Defendants' negligence, Plaintiff has suffered, is suffering, and in reasonable medical probability will continue to suffer the following damages, all in amounts in excess of the minimum jurisdictional limits of this Court:

9.2. Past medical expenses — limited to amounts actually paid or incurred under Tex. Civ. Prac. & Rem. Code § 41.0105 and Haygood v. Escabedo, 356 S.W.3d 390 (Tex. 2011);

9.3. Future medical, hospital, custodial, and rehabilitative care expenses in reasonable medical probability;

9.4. Past lost earnings and future loss of earning capacity;

9.5. Past and future physical pain and mental anguish;

9.6. Past and future physical impairment;

9.7. Past and future disfigurement;

9.8. Loss of household services;

9.9. Any other damages permitted by law and proven at trial.

11. RULE 47 STATEMENT OF RELIEF

10.1. Pursuant to Tex. R. Civ. P. 47(c), Plaintiff states that monetary relief sought is:

☐ over $250,000 but not more than $1,000,000;

☐ over $1,000,000;

☐ [other range as appropriate].

10.2. Plaintiff also seeks all other relief to which Plaintiff may be justly entitled, including pre-judgment interest, post-judgment interest, taxable costs of court, and any other relief, in law or in equity, to which Plaintiff is entitled.

12. CHAPTER 74 ACKNOWLEDGMENTS

11.1. Plaintiff acknowledges that this case is a "health care liability claim" within the meaning of Tex. Civ. Prac. & Rem. Code § 74.001(a)(13) and that Chapter 74 of the Civil Practice and Remedies Code applies in all respects.

11.2. Plaintiff specifically acknowledges and will comply with the following provisions:

• The 120-day expert-report requirement of § 74.351(a) as to each Defendant;
• The expert-qualification requirements of §§ 74.401, 74.402, and 74.403;
• The damages caps of §§ 74.301 and 74.303 (subject to all reservations of constitutional and statutory challenges);
• The discovery-stay and other procedural protections of § 74.351(s).

11.3. Plaintiff reserves all rights to challenge the constitutionality, applicability, or scope of any provision of Chapter 74 as may be appropriate.

13. JURY DEMAND

12.1. Pursuant to Tex. R. Civ. P. 216 and Tex. Const. art. I, § 15, Plaintiff hereby demands a trial by jury on all issues so triable. The jury fee is being paid contemporaneously with the filing of this Original Petition.

14. REQUEST FOR DISCLOSURE AND DISCOVERY RESERVATIONS

13.1. Pursuant to Tex. R. Civ. P. 194.2 and 194.3, Defendants are requested to provide the disclosures listed therein, including without limitation the information described in Rule 194.2(b)(1)-(12).

13.2. Plaintiff reserves the right to designate testifying experts pursuant to Tex. R. Civ. P. 195 according to the deadlines in any scheduling order entered by the Court, with particular attention to the qualification requirements of Tex. Civ. Prac. & Rem. Code §§ 74.401-74.403.

13.3. Plaintiff intends to issue requests for production, interrogatories, requests for admissions, and depositions on oral examination as discovery proceeds, subject to the discovery stay of Tex. Civ. Prac. & Rem. Code § 74.351(s) until the expert report has been served.

15. PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that Defendants be cited to appear and answer herein, and that upon final hearing Plaintiff have judgment against Defendants, jointly and severally, for:

• A. Actual damages within the jurisdictional limits of this Court, including all economic and noneconomic damages described above (subject to the limitations of Chapter 74 only as those limitations are constitutionally enforceable);
• B. Pre-judgment interest at the maximum lawful rate under Tex. Fin. Code Chapter 304;
• C. Post-judgment interest at the maximum lawful rate;
• D. Costs of court;
• E. Such other and further relief, at law or in equity, to which Plaintiff may be justly entitled.

16. SIGNATURE AND CERTIFICATES

Date: [DATE]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME]

State Bar No. [########]

[STREET ADDRESS]

[CITY, TEXAS ZIP]

Telephone: [NUMBER]

Facsimile: [NUMBER]

Email: [EMAIL]

ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE

I certify that on [DATE], a true and correct copy of the foregoing Plaintiff's Original Petition was served on all counsel of record in accordance with Tex. R. Civ. P. 21a.

[________________________________]

[ATTORNEY NAME]

17. TEXAS PRACTICE NOTES

• Health care liability claim defined. Section 74.001(a)(13) defines an HCLC as "a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant." Texas courts construe this definition broadly (Yamada v. Friend, 335 S.W.3d 192 (Tex. 2010); Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496 (Tex. 2015)).
• Pre-suit notice failure. Failure to give the § 74.051 notice abates the suit; failure to provide the § 74.052 authorization separately abates the suit until 60 days after the authorization is provided.
• Expert-report deadline. The § 74.351 deadline runs from each defendant's original answer. Service requires both the report and the expert's CV. Late-served reports are treated as no report at all (Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007)).
• Mandatory dismissal. When the report is not timely served, dismissal with prejudice and an award of reasonable attorney's fees and costs is mandatory (§ 74.351(b)). The trial court has no discretion to deny those remedies.
• Cure period. A claimant whose report is found "deficient" — but not "no report at all" — is entitled to a single 30-day extension to cure (§ 74.351(c)).
• Interlocutory appeal. Either side may take an interlocutory appeal from a § 74.351 ruling under Tex. Civ. Prac. & Rem. Code § 51.014(a)(9)-(10).
• Discovery stay. Until the § 74.351 report is served, discovery is largely stayed; only the limited discovery permitted by § 74.351(s) is allowed.
• Caps not indexed. The § 74.301 noneconomic caps remain at 2003 levels and are not adjusted for inflation. The § 74.303 wrongful-death cap is CPI-W indexed from 1977 dollars and recalibrated to the date of judgment or settlement.
• Constitutionality. Chapter 74's caps and procedural requirements have been repeatedly upheld against constitutional attack (see, e.g., Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011)).
• EMTALA / federal claims. A separate EMTALA claim does not abrogate Chapter 74's procedural requirements as to state-law HCLCs joined in the same action.

18. SOURCES AND REFERENCES

• Tex. Civ. Prac. & Rem. Code Ch. 74 — https://statutes.capitol.texas.gov/Docs/CP/htm/CP.74.htm
• Tex. Civ. Prac. & Rem. Code § 41.0105 — https://statutes.capitol.texas.gov/Docs/CP/htm/CP.41.htm
• Texas Rules of Civil Procedure — https://www.txcourts.gov/rules-forms/rules-standards/
• Haygood v. Escabedo, 356 S.W.3d 390 (Tex. 2011) (paid-or-incurred)
• Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) (no report vs. deficient report)
• Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) (HCLC scope, caps)
• Yamada v. Friend, 335 S.W.3d 192 (Tex. 2010) (HCLC scope)
• Ross v. St. Luke's Episcopal Hospital, 462 S.W.3d 496 (Tex. 2015) (safety claims)
• Baptist Memorial Hospital System v. Sampson, 969 S.W.2d 945 (Tex. 1998) (ostensible agency)
• Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669 (Tex. 2008) (vicarious-liability expert reports)
• Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011) (constitutionality)
• Texas Medical Board — https://www.tmb.state.tx.us/
• Texas Medical Disclosure Panel — https://www.dshs.texas.gov/

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in Texas must review and customize this document before filing. Statutes, court rules, damage caps, and case law change frequently; verify all authorities against statutes.capitol.texas.gov and Westlaw/Lexis before use.