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The most common legal malpractice claims arising from medical malpractice lawsuit claims are failing to file the lawsuit before the statute of limitations expires, failing to timely file expert report, and failing to have an adequate expert report.
1.Statute of Limitations
The statute of limitations in a medical malpractice case is generally two years from the date of the negligent act, and the lawsuit must be filed and defendants served before the expiration of those two years.
The statute of limitations in a legal malpractice case based on a medical malpractice claim does not begin to run until two years from the time of the legal injury or until the attorney-client relationship and/or attorney’s duties to a client have terminated.
2. Expert Report Deadline
Texas Civil Practice & Remedies Code §74.351(a) requires a healthcare liability claimant to produce, within 120 days after filing suit, one or more expert reports detailing each Defendant’s standard of care, how the Defendant breached the standard of care and how it caused the claimant’s damages.
3. Expert Report Requirements
In order to be adequate, the medical expert report must represent an “objective good faith effort” to comply with the definition of an expert report under Texas Civil Practice & Remedies Code Chapter 74. The objective good faith standard requires an expert report to provide an adequate analysis of each of the statutory elements of the definition of an expert report:
(a)Applicable standard of care;
(b)The manner in which the care rendered by the physician or healthcare provider failed to meet the standards and;
(c)The causal relationship between that failure and the injury, harm or damages claimed.
Further, the Texas Supreme Court has held that to constitute a “good faith effort”, the report must at minimum inform the Defendant of the specific conduct called into question and provides a basis for the trial Court to conclude the claims have merit.
In the event that the claimant fails to meet the expert report requirements and deadline, the trial court must dismiss the claim. The claimant then has a legal malpractice claim against the attorney for the failure to meet the report deadline and/or requirements.
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