Texas Surgical Error Lawsuits: Protect Your Rights Now
If you or a loved one suffered harm from a surgical error in Texas, you may have a medical malpractice claim. Below we explain what qualifies as a surgical error, how liability is proven, what compensation may be available, and how Texas-specific rules—especially early expert report requirements and damages caps—can affect your case.
What Counts as a Surgical Error?
A surgical error generally refers to preventable harm that occurs before, during, or shortly after surgery due to a departure from accepted medical standards. Examples include wrong-site or wrong-patient surgery, retained surgical items (sponges or instruments), anesthesia errors, negligent nerve or organ injury, inadequate sterilization leading to avoidable infection, and failures in pre-op or post-op monitoring. Not every poor outcome is malpractice; the question is whether the care fell below the applicable standard. In Texas, many such claims are treated as Health Care Liability Claims under the Texas Civil Practice & Remedies Code (§ 74.001).
Proving Medical Malpractice in Texas
To recover in a surgical error case, a plaintiff typically must prove: (1) a provider–patient relationship (duty), (2) breach of the applicable standard of care, (3) causation linking the breach to the injury, and (4) damages. Texas law generally requires expert testimony to explain the standard of care, how it was breached, and how that breach caused harm, and early in the case plaintiffs must serve a compliant expert report summarizing those opinions (§ 74.351; see also Palacios, 46 S.W.3d at 878).
Texas’s Expert Report Requirement
Texas requires service of one or more expert reports on each defendant physician or health care provider within 120 days after that defendant files an original answer (§ 74.351(a)). The report must provide a fair summary of opinions regarding (1) the standard of care, (2) the manner in which the care failed to meet that standard, and (3) the causal relationship between that failure and the claimed injury (§ 74.351(r)(6)).
If a compliant report is not served by the deadline, the court must, on motion, dismiss the claims with prejudice and award reasonable attorney’s fees and costs to the affected defendant(s) (§ 74.351(b); Palacios). If a report is served but is deficient, a court has discretion to grant one 30-day extension to cure the deficiencies (§ 74.351(c); see Samlowski, 332 S.W.3d at 410–11).
Who May Be Liable
Potentially liable parties include surgeons, anesthesiologists, nurses, surgical technologists, hospitals, and ambulatory surgery centers. Liability depends on roles, contracts, and whether an individual or entity breached the standard of care. Hospitals may face direct liability for negligent credentialing and policies, and in some circumstances vicarious liability for employees’ negligence (Agbor, 952 S.W.2d 503).
Evidence That Strengthens Your Case
Helpful materials can include operative notes, anesthesia records, consent forms, pre-op checklists, “time-out” documentation, postoperative orders, pathology reports, imaging, and item counts. Preserve discharge instructions, bills, and communications, and keep a written timeline. Note that some internal incident reports or peer review/medical committee records may be privileged and not discoverable in litigation—your attorney can navigate these issues (Health & Safety Code § 161.032).
Practice Tips
- Request your complete medical records early and keep them organized by date.
- Use a symptom diary to track pain, limitations, and missed work.
- Direct providers and insurers to communicate through your attorney once retained.
Damages and Texas Caps
Recoverable damages may include medical expenses, lost income and earning capacity, physical pain, mental anguish, and physical impairment. In wrongful-death and survival cases, eligible family members and the estate may recover legally permitted damages.
Texas caps non-economic damages in health care liability claims: generally up to $250,000 per claimant against all physicians/individual providers, plus up to $250,000 per claimant against each health care institution, with an aggregate institution cap of $500,000—yielding a possible $750,000 total non-economic cap depending on the defendants involved (§ 74.301). Wrongful-death medical malpractice claims are subject to a separate statutory cap adjusted for inflation (§ 74.303). Economic damages (e.g., medical bills and lost earnings) are not capped by § 74.301 but must be proven with competent evidence. Additional caps may apply in special contexts (e.g., claims against governmental units under the Texas Tort Claims Act, § 101.023; exemplary damages caps, § 41.008).
Deadlines Can Be Strict
Most Texas health care liability claims must be filed within two years of the alleged negligent act or the completion of a relevant course of treatment, subject to a 10-year statute of repose that bars claims filed later (§ 74.251(a)–(b)). For minors under age 12, limitations generally run by the child’s 14th birthday (§ 74.251(a)).
Texas also requires written pre-suit notice to each health care defendant at least 60 days before filing, accompanied by a HIPAA-compliant authorization; sending this notice tolls limitations for 75 days (§ 74.051; § 74.052). Claims against governmental units have separate notice requirements, often within six months of the incident (§ 101.101) and are subject to damages caps (§ 101.023).
What To Do After a Suspected Surgical Error
- Seek appropriate medical evaluation right away.
- Preserve discharge paperwork, instructions, and billing statements.
- Request complete medical records (including operative and anesthesia reports).
- Maintain a written timeline of symptoms, appointments, and communications.
- Avoid discussing the event on social media or with non-privileged third parties.
- Consult an attorney experienced in Texas medical malpractice to evaluate your claim, send timely pre-suit notices, and coordinate expert reviews.
How We Help
We move quickly to secure and analyze records, consult qualified experts, identify all responsible parties, and pursue compensation. Our team is fluent in Texas’s procedural rules—including pre-suit notice, expert report compliance, and litigation strategy tailored to surgical cases.
FAQs
Do I need an expert to file a Texas surgical error case?
Yes. You must serve a compliant medical expert report for each defendant within the statutory deadline or risk dismissal with prejudice and fee shifting.
What if I discovered the error months after surgery?
Texas has strict limitation and repose rules. Some discovery-rule situations are limited in health care cases. Speak with counsel promptly to evaluate timing.
Can I sue the hospital as well as the surgeon?
Possibly. Depending on facts, hospitals may face direct liability (e.g., negligent credentialing) and, in some scenarios, vicarious liability for employees.
Are non-economic damages capped?
Yes. Non-economic damages are capped by statute, while economic losses like medical bills and lost earnings are not capped but must be proven.
Sources
- Tex. Civ. Prac. & Rem. Code § 74.351 (expert report content, deadline, dismissal/fees, extension).
- American Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873 (Tex. 2001) (expert report sufficiency).
- Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011) (discretion to grant 30-day cure).
- Tex. Civ. Prac. & Rem. Code § 74.301 (non-economic damages caps).
- Tex. Civ. Prac. & Rem. Code § 74.303 (wrongful-death cap; inflation adjustment).
- Tex. Civ. Prac. & Rem. Code § 74.251 (limitations and repose; minors).
- Tex. Civ. Prac. & Rem. Code § 74.051 and § 74.052 (pre-suit notice; authorization; tolling).
- Tex. Civ. Prac. & Rem. Code § 101.023 (TTCA damages caps) and § 101.101 (TTCA notice).
- Tex. Civ. Prac. & Rem. Code § 41.008 (exemplary damages caps).
- St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503 (Tex. 1997) (negligent credentialing).
- Tex. Health & Safety Code § 161.032 (medical committee/peer review privilege).
Talk to a Texas medical malpractice attorney
Deadlines move fast. For a confidential evaluation of your potential surgical error claim, contact our team.
Disclaimer
This blog is for general information only and is not legal advice. Reading it does not create an attorney–client relationship. Legal outcomes and deadlines depend on your specific facts and current Texas law—consult a licensed Texas attorney about your situation.