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How is medical malpractice determined?

Houston, TX |

My cousin went in for a simple procedure...It has now been three months in the hospital as the surgeon punctured her esophagus and had to ultimately remove her spleen. She has since experienced all sorts of complications. What do we do?

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Attorney answers 7


The only way is to get the medical records and have them reviewed by an experienced med mal attorney.

This answer is provided as a public service for informational purposes only. Providing this information does not create an attorney-client relationship. As with all legal matters, you should contact an experienced attorney in your geographical area to discuss the law specific to your state. For more information, see


Contact a medical malpractice attorney.


Medical malpractice is one of the hardest areas of law in which to practice, for several reasons:
(1) expert testimony is needed to prove that the physician fell below the standard of care (he committed malpractice; and
(2) the medical industry has a much better lobby in Austin than you and I have.

Under the applicable statute, you cannot even file suit unless your attorney has obtained an opinion from a highly-paid medical professional that the doctor committed malpractice. Furthermore, many "bad outcomes" are, while tragic, not considered medical malpractice because they can happen to the best surgeon.

If your cousin wants to proceed on his claim, he must obtain all of his medical records from his providers and run -- don't walk -- to an attorney who specializes in the area of medical malpractice. Assuming that the attorney believes the case to be a good one, he will probably then send it to a nurse to review the records. If the nurse concurs in his opinion of the case, he will then send it to a medical doctor for review.

All of this costs money, which in a contingency case comes out of the attorney's pocket, so attorneys have to be very careful which cases to take.


Medical malpractice is determined by whether the medical care provider (physician or nurse or whatever) failed to comply with the "minimum standard of reasonable care." In your cousin's case, it depends on whether the esophageal perforation was caused by the surgeon or GI's failure to comply with a standard of care. What's the standard of care? Good question. It obviously depends on the procedure that was performed. I have a guess. I'm betting that your cousin went in for a simple EGD (esophagogastroduodenoscopy...great word). The idea was to be scoped in her esophagus and stomach, maybe for GERD, indigestion, or something along those lines. But an esophageal perforation occurred. If my guess is correct, it may be hard to make a case. Perforations under these circumstances can occur even in the absence of negligence. But...I'm assuming a great deal here.

More of your cousin's story needs to be examined by a lawyer. Contact an experienced med mal attorney in Houston. Few are left. If you get told no, keep trying.


These cases are more than bad result equals malpractice. It is certainly possible that this is a viable claim. However, only a local malpractice lawyer will be able to answer this question, after conducting a full review of the medical records.

This response is not intended to act as legal advice. I am not licensed to practice law in any state other than the State of Illinois. No attorney-client relationship is formed until you sign an attorney-client agreement with my office.


Obviously, this response is based on rather limited information provided by the posting. First, it is always recommended to consult a medical malpractice attorney in the state where you intend to commence the action. That being said, medical malpractice is a departure by a physician (or a medical care provider) from the accepted standards of care in the community. If the doctor treating you cousin in fact departed from such standards by perforating the esophagus and if such departure resulted in an injury (i.e. complications, infections, prolonged hospitalizations, etc.) there may be a viable claim. However, not every undesired result is an error and not every error is medical malpractice. Some procedures have risks, and it is a duty of the provider to adequately advise the patient of such risks. If your cousin was not advised of the risks (or was misadvised of the risks) then she may have a claim for lack of informed consent.

The above positing is not intended to constitute advice and does not create attorney-client relationship.


Messrs. Horowitz and Stewart, both of whom have responded to your post, are excellent personal injury plaintiffs' lawyers with offices in Houston whose firms are more than capable of properly evaluating your cousin's case, determining whether or not it will be economically feasible to pursue, and then pursuing it on her behalf if such is the indicated course of action. I suggest you have your cousin contact one of them promptly.

Daniel David Horowitz III

Daniel David Horowitz III


Thank you for the kind words and compliment. I can say the same about you.

Don Karotkin

Don Karotkin


Thanks, Daniel. I count most of the lawyers in your firm as a personal friend of mine and I hold them all in the highest esteem.

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