The Texas Medical Liability Act

Texas law imposes unique procedural prerequisites for medical malpractice (health care liability) claims against doctors. Before filing suit, the claimant must send a written notice and a statutory medical authorization form to each defendant at least 60 days in advance; after suit is filed, the claimant must serve a detailed expert report on each defendant within 120 days of that defendant’s original answer, with strict content and qualification requirements for the expert.

These requirements are strictly enforced: missing the pre-suit notice or authorization can abate proceedings and defeat tolling of limitations, while failure to timely serve a compliant expert report results in mandatory dismissal with prejudice and an award of attorney’s fees and costs to the defendant. The law also imposes a stay on most discovery until the expert report is served, and sets out additional early discovery and procedural rules specific to these cases.

Pre-suit Notice and Authorization

Before a medical malpractice lawsuit can be filed against a doctor in Texas, the claimant must provide each prospective defendant with written notice of the claim at least 60 days before filing suit. This notice must be sent by certified mail, return receipt requested, and must be accompanied by a medical authorization form that complies with the requirements of Section 74.052. The authorization allows the defendant to obtain the claimant’s relevant medical and billing records.

If the authorization is not included with the notice, or if it is later revoked or modified, the proceedings are abated until 60 days after a proper authorization is received. This abatement is automatic and mandatory. Additionally, the statute of limitations is tolled for 75 days only if both the notice and the authorization are properly provided. If either is missing, the tolling does not apply, and the claimant risks having the claim barred by limitations.

The statutory authorization form is prescribed by Section 74.052 and must be used as provided. Any deviation from the required form can result in abatement and loss of tolling.

Expert Report Requirement

After suit is filed, the claimant must serve on each defendant an expert report and the curriculum vitae of each expert within 120 days of that defendant’s original answer. The expert report must provide a fair summary of the expert’s opinions regarding the applicable standard of care, how the defendant failed to meet that standard, and the causal relationship between that failure and the injury or damages claimed.

The expert must be qualified under the statute. For claims against a physician, the expert must be a physician who is actively practicing or teaching medicine, has knowledge of the accepted standards of medical care for the diagnosis, care, or treatment involved, and is qualified by training or experience to offer an expert opinion on those standards.

Strict compliance with the expert report requirement is mandatory. If the claimant fails to serve a report within the 120-day deadline, the court must, upon motion by the defendant, dismiss the claim with prejudice and award reasonable attorney’s fees and costs. There are no exceptions for good faith, mistake, or other equitable considerations. If a report is served but is deficient, the court may grant a single 30-day extension to cure the deficiency, but only if a report was timely served in the first place.

The expert report requirement applies to all claims that fall within the statutory definition of a health care liability claim, regardless of how the claim is pleaded. Courts will look to the substance of the claim to determine whether it is subject to these requirements.

Discovery Stay and Early Discovery

Until the expert report is served, all discovery is stayed except for limited written discovery, depositions on written questions, and nonparty discovery. Only two depositions may be taken before the expert report is served, regardless of the number of claimants or defendants.

Additionally, both plaintiffs and defendants must serve full and complete answers to standardized interrogatories and requests for production within 45 days of filing the original petition (for plaintiffs) or after the answer was due (for defendants).

Preliminary Determination

If there is a dispute as to whether a claim is a health care liability claim subject to the expert report requirement, the claimant may move for a preliminary determination under Section 74.353. The court must issue a determination, and if it finds the claim is subject to the requirement, the claimant must serve the expert report within the later of 120 days after the defendant’s answer, 60 days after the court’s determination, or a date agreed to by the parties. This determination is subject to interlocutory appeal.

Statute of Limitations

A health care liability claim must be filed within two years of the alleged breach, treatment, or hospitalization, with a special extension for minors under 12 (until their 14th birthday), and an absolute 10-year statute of repose. The 75-day tolling for pre-suit notice applies only if both the notice and authorization are properly provided.