[TX] Are my complaints considered medical malpractice?
Are any of these complaints considered medical malpractice? The defendants’ attorney is trying to get the case dismissed pursuant to TCPR Code 74.351. The court clerk labeled the case as “other” instead of medical malpractice. Also, it is an open homicide investigation with HPD. Do I need to inform the defendants of that? Can I use it as a reason to stay the case? Please advise.
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I’m so sorry about this situation! I want to address your situation with a detailed response, so if you have any questions, don’t hesitate to ask, because this law stuff can get complicated.
Short answer: Some of your claims, like failure to diagnose or negligent treatment, would fall under medical malpractice and trigger the expert report requirement under Texas law (Texas Medical Liability Act (TMLA)). Your other claims, like age and race discrimination, civil rights violations, assault, and intentional homicide, are intentional torts or constitutional claims and are not classified as medical malpractice. The homicide investigation by HPD does not automatically stay your civil case, but you can raise it with the court and request a stay if you think it directly affects the evidence or outcome.
Longer answer: If you are suing for failure to diagnose or negligent care, those counts are considered medical malpractice under Texas law and require an expert report under Code 74.351. The “other” label from the clerk doesn’t override the statute if the substance sounds in malpractice. You are not legally required to inform defendants about the HPD homicide investigation, though overlapping evidence may surface in discovery. You can move to stay the civil proceedings until the criminal investigation is complete, but it’s discretionary.
What to do: Separate malpractice counts from civil rights/intentional tort counts in the pleadings, meet the January 2026 expert-report deadline for malpractice counts, and consider a motion to stay if the homicide investigation will directly impact the case. For discrimination, you can also pursue administrative complaints (EEOC/state) if applicable.
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I am suing a hospital and its doctors for:
- Age and race discrimination
- Violation of 14th Amendment rights (Texas state equivalent statute)
- Physical assault
- Intentional homicide
Are any of these complaints considered medical malpractice? The defendants’ attorney is trying to get the case dismissed pursuant to TCPR Code 74.351. The court clerk labeled the case as “other” instead of medical malpractice. Also, it is an open homicide investigation with HPD. Do I need to inform the defendants of that? Can I use it as a reason to stay the case? Please advise.
Lexi, Chatbot
I’m sorry to hear about the challenges you are facing. Have you already filed a lawsuit against the hospital and its doctors for these claims?
Yes.
Lexi, Chatbot
Can you provide more details on how the defendants’ attorney is attempting to dismiss the case under TCPR Code 74.351?
He is trying to have it dismissed with prejudice based on Texas law.
Lexi, Chatbot
Is there anything else the personal injury lawyer should know before I connect you? Rest assured they’ll be able to help with your lawsuit.
No.
Legal Eagle
Did you ever serve the defendants with an expert report or affidavit to address the medical issues, or has the case only been pursued under civil rights and intentional tort claims so far?
Lexi, Chatbot
I have not served them with a medical expert report yet.
Legal Eagle
Okay, thanks! Just a few more questions. Have you received any deadlines from the court requiring you to file an expert report, or has the defense only raised it in their motion to dismiss so far?
They have something set for January 2026 — that’s when they said it’s due.
Legal Eagle
Got it, thanks for sharing that. Could you tell me more about how you're pursuing the claims related to age and race discrimination, as well as the violation of 14th Amendment rights? Are these being handled separately from the medical malpractice aspect?
So I am suing a nursing home (SNF) and staff and a hospital and staff for different things. I have an arbitration agreement with the SNF and filed with JAMS. I initially listed all parties on the JAMS case. The hospital responded and said they had never signed an arbitration agreement. So I nonsuited them and their employees, also the SNF’s employees who never responded. The JAMS case is on an administrative hold and an arbitrator has not been appointed. I am suing the SNF staff for medical malpractice (failure to diagnose), however my mother died under suspicious circumstances at the hospital. The doctors in ICU med reports don’t match, so I requested an autopsy and initially was told no by an ICU nurse due to her age and because she was “messy” (Covid pneumonia). I filed a complaint with patient liaison and asked for an autopsy. I reported that an ICU doctor had called me and asked me permission to end her life. They told me I needed to hire a forensic pathologist and that would be private pay and gave me a referral. I contacted HPD and they told me to tell the hospital (an inappropriate response). I told HPD to keep it open. There is also an issue of them assuming my mother did not have an advance directive because she was Black and indigent.
Legal Eagle
Okay! I just need a little time to draft up a high-quality answer. I’ll be with you as soon as possible. It won’t be terribly long, okay?
I think I forgot to add that I filed the case with the hospital and staff in district court in Harris County, in process of trying to have it stayed since FAA has been invoked.
Legal Eagle
No problem! I’ll certainly address that. Anything else you'd like to add you think is relevant before I answer?
Take all the time you need.
Legal Eagle
I’m so sorry about this situation! I want to address your situation with a detailed response, so if you have any questions, don’t hesitate to ask, because this law stuff can get complicated.
Short answer: Some of your claims, like failure to diagnose or negligent treatment, would fall under medical malpractice and trigger the expert report requirement under Texas law (Texas Medical Liability Act (TMLA)). Your other claims, like age and race discrimination, civil rights violations, assault, and intentional homicide, are intentional torts or constitutional claims and are not classified as medical malpractice. The homicide investigation by HPD does not automatically stay your civil case, but you can raise it with the court and request a stay if you think it directly affects the evidence or outcome.
Longer answer: If you are suing for failure to diagnose or negligent care, those counts are considered medical malpractice under Texas law and require an expert report under Code 74.351. The “other” label from the clerk doesn’t override the statute if the substance sounds in malpractice. You are not legally required to inform defendants about the HPD homicide investigation, though overlapping evidence may surface in discovery. You can move to stay the civil proceedings until the criminal investigation is complete, but it’s discretionary.
What to do: Separate malpractice counts from civil rights/intentional tort counts in the pleadings, meet the January 2026 expert-report deadline for malpractice counts, and consider a motion to stay if the homicide investigation will directly impact the case. For discrimination, you can also pursue administrative complaints (EEOC/state) if applicable.
I did separate the SNF staff from the court case. I nonsuited them and added them in the arbitration case. I just want to stay the case or be sure it is classified as non-medical malpractice. Can I file something to ask time to perfect the case? If so, what is that called?
Legal Eagle
You did the right thing by separating the SNF staff into arbitration and leaving the hospital staff in district court. To avoid dismissal under Texas CPRC §74.351, you can file a motion for extension of time to serve expert report, which can give up to 30 additional days for good cause. If your goal is to argue the claims are not medical malpractice, file a motion to determine applicability of Chapter 74, asking the judge to classify the case as intentional torts/civil rights instead. If you need a pause while you sort these issues out or while the homicide investigation is ongoing, request a motion to stay proceedings or an abatement.
So, to be clear, I don’t have to file an expert opinion for the hospital employees because it is non-medical malpractice even though they are doctors?
Legal Eagle
If the claims against the hospital employees are based on intentional acts like assisted suicide or discrimination, rather than negligent medical treatment, they may not be classified as medical malpractice and may not require a Chapter 74 expert report. It’s crucial to plead these distinctions clearly to avoid confusion.
What if I just amend my pleadings before the oral hearing to dismiss on 8/26/25? If I notify them there is an open homicide investigation, can’t they just plead the 5th Amendment right?
Legal Eagle
Amending before the hearing can clarify that your claims are intentional/civil-rights based rather than malpractice. Regarding the open homicide investigation, notifying defendants could lead them to invoke the Fifth Amendment if criminal exposure exists, which may affect testimony and discovery in the civil case.
Thank you! If necessary I’m actually trying to see if I can add the hospital to the arbitration since it’s technically continuous care, but that would be maybe overwhelming for the arbitrator; definitely would have been for a jury.
Legal Eagle
You’re welcome! Adding the hospital to arbitration could increase complexity but might streamline if it’s truly continuous care. Balance complexity against efficiency and review the arbitration agreement language before attempting to compel the hospital (who says it never agreed).
One of the SNF employees who was added to the arbitration asked to be dismissed with prejudice after he was non-suited. The judge signed my nonsuit without prejudice on 6/25/25. The attorney did not appeal or file a motion to vacate; he just set a hearing to dismiss with prejudice before it became final. The judge was at a conference and another judge signed his order to dismiss with prejudice on 7/31/25 and cited Rule 162. The defendant was added to the arbitration case on 7/29/25 (2 days before the order was signed). How does this affect things?
Legal Eagle
When a judge dismisses with prejudice, that usually bars refiling in court. Since you added the SNF employee to arbitration before the 7/31/25 order, the arbitration should proceed independently unless the arbitration agreement or a later ruling says otherwise. Review the arbitration clause and raise any claim-preclusion arguments with the arbitrator if the defense objects. If there's anything else I can clarify, I'm here for you!
Legal Eagle
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